Ex-Olympian David Hearn’s defense attorneys asked a judge to dismiss the case with prejudice, ensuring federal prosecutors can’t reopen it.
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Attorneys for the former Olympian who had been accused of vandalizing the Lincoln Memorial Reflecting Pool are asking a judge to ensure federal prosecutors don’t have a chance to reopen the case against him.
In a court filing Tuesday, attorneys for David Hearn pushed back against the Justice Department’s move to dismiss the charge against their client “without prejudice,” which would allow the department to prosecute him later.
Lawyers Norm Eisen, Mary Dohrmann and Steve Levin wrote that recent attacks by President Donald Trump and Interior Secretary Doug Burgum against the decision to drop the case raise concerns that Trump could push to revive the prosecution.
The department “has repeatedly demonstrated its willingness to seek or reinstate criminal charges to satisfy the President, irrespective of the law or facts,” the attorneys wrote. “Fortunately, D.C. law provides a remedy for circumstances presenting this risk of harassment and bad faith: dismissal with prejudice.”
The attorneys also asked for grand jury records related to the case.
The filings are the latest in the ongoing legal battle.
The move to dismiss the case comes weeks after a Washington Post analysis concluded that the basin’s peeling was probably caused by application errors.
The contractor for the Reflecting Pool repairs, Atlantic Industrial Coatings, did not respond to a request for comment Tuesday evening.
In their response to the motion to dismiss the felony charge, Hearn’s attorneys said that while evidence showed from the start that installation failure was to blame for the liner damages, federal prosecutors disregarded it and pursued a case against their client anyway.
They wrote that, as “highly publicized and obvious defects” in the work done at the Reflecting Pool spread, Trump and his administration tried to link the defects to vandalism.
That led to a rushed indictment against Hearn, they said. At a grand jury proceeding, the government’s key witness on damages “stated that the repairs at issue would have been necessary regardless of Mr. Hearn’s alleged conduct and could not identify any additional cost caused by Mr. Hearn,” according to the filing.
But a later portion of the grand jury testimony — which Hearn’s lawyers alleged was not initially shared with them — showed that prosecutors recalled the witness and “elicited” from them that damage “attributable to Mr. Hearn” would be more than $1,000, according to the filing.
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A judge must grant the motion to dismiss charges in Hearn’s case, with or without prejudice. If the judge declines to grant the defense’s request, Hearn’s lawyers are asking for a review of grand jury materials they say could show whether jurors were provided a “misleading” presentation of the case, the filing states.
Hearn’s attorneys said that based on the prosecution’s own records, Pirro’s office had known about the failing liner all along.
They cited a document dated June 30, entitled “Lincoln Memorial Reflecting Pool Damage Assessment” that detailed damage at multiple spots throughout the pool. It described damage in the area where Hearn was as a “possible result of vandalism after initial peeling,” not “established vandalism,” the filing says.
Federal prosecutors have said they first learned of the liner failures throughout the Reflecting Pool on July 17. But Hearn’s defense team said it was given the damage assessment document as part of discovery in the case on July 10, a week earlier.
Attorneys said records also showed that on July 13, special agents with Pirro’s office photographed damage throughout the Reflecting Pool. The agents were joined by a National Park Service engineer, who told them “he had personally cut loose liner or coating with a knife to prevent further peeling,” according to the defense filing.
“USAO-DC elected to pursue a politically motivated prosecution against Mr. Hearn, even as it now misleadingly contends that critical exculpatory evidence was unavailable to investigators at the time,” attorneys said in the filing.
In their filing seeking to drop the case, Pirro’s office argued prosecutors had initially received incomplete information from the Interior Department.
But attorneys for Hearn, as well as other defendants who had been charged with damaging the pool, said the Justice Department’s claim remains unconvincing.
The department’s “current effort to assign sole fault to DOI therefore confirms, rather than excuses, the government’s bad faith,” Hearn’s lawyers wrote. “It relied on DOI to obtain the indictment, failed to investigate before charging, and now seeks to disclaim responsibility for information held by the very agencies on whose accusations and witnesses it relied.”
Hearn was expected to appear in court this week, but the hearing was vacated after the government’s filing to dismiss. He has a status hearing scheduled in September.
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