Hearn challenges felony charge in Reflecting Pool case

A former Olympic canoeist accused of damaging the Lincoln Memorial Reflecting Pool is challenging the felony case against him, arguing that the government’s own grand jury witness said the pool liner was already damaged and would have needed repairs regardless of his alleged conduct.

Lawyers for David “Davey” Hearn made the argument in a court filing released Monday, asking for access to all grand jury testimony that led to his indictment and for disclosure of the legal instructions prosecutors gave grand jurors. The defense said the materials already provided point to “irregularities” and a “misleading presentation” to the grand jury.

Hearn, 67, has pleaded not guilty to one felony count of property destruction in Washington, D.C., Superior Court. The Guardian reported that the charge could carry a 10-year prison sentence and a $1,000 fine. His trial is scheduled to begin Sept. 28.

The case centers on damage to the long, shallow pool near the Washington Monument after a renovation project ordered by President Donald Trump. Trump had announced a plan to coat the bottom of the pool in “American flag blue” ahead of America’s 250th birthday. The project faced setbacks, and costs rose beyond his original estimates. After the pool was refilled, the coating began to come up and algae flooded the water.

Trump blamed vandals for the problems. At least three other people face misdemeanor charges connected to incidents at the Reflecting Pool. The Guardian reported that three people, including Hearn, were charged with misdemeanors for taking or trying to take pieces of the blue liner, though Hearn also faces the felony property destruction count.

According to Hearn’s lawyers, the only grand jury witness who testified about damage — an unnamed National Park Service official — said the area was already compromised before Hearn allegedly touched it. The witness said the pool was leaking more than 1 million gallons of water per week, its expansion joints had exceeded their service life and the liner already contained a rip, the defense wrote.

“The witness’s testimony established that the pool had substantial preexisting damage requiring repair before any alleged conduct by Mr. Hearn,” Hearn’s attorneys wrote.

The witness said repairs would have cost $6,000 to $15,000 because of preexisting damage in the area, according to the filing. But the defense said the witness could not identify any added cost caused by Hearn.

“Simply put, the government’s witness could not identify any additional cost caused by Mr. Hearn’s alleged conduct,” the lawyers wrote. “Indeed, the witness did not even say or suggest that the alleged conduct had compromised the liner at all.”

Hearn has disputed that he damaged the pool. He previously told NBC News that “the condition of the Reflecting Pool was the same after I stepped away from the water as it was before I got there.” He told The Associated Press that he was detained by the National Guard and U.S. Park Police for five hours after stopping by the pool during a bike ride on June 19. Hearn said he reached into the water and briefly touched a chunk attached to the side, then let go when a park worker told him to.

Defense attorneys questioned whether prosecutors showed the grand jury enough evidence to support the claim that Hearn caused more than $1,000 in damage, the threshold cited in their filing for the more serious charge.

“The grand jury’s indictment of Mr. Hearn is hard to explain,” they wrote. “Mr. Hearn needs to learn whether the grand jury was properly instructed that the charge required him to have caused over $1,000 in damages, when the testimony failed to establish that he caused any damage at all. So does this Court.”

The U.S. Attorney’s Office for the District of Columbia, led by former judge and Fox News host Jeanine Pirro, did not immediately respond to requests for comment from NBC News and The Guardian. When NBC News asked Pirro earlier this month how prosecutors would prove Hearn caused more than $1,000 in damage given existing damage to the pool, she replied, “With an expert. Come to the trial.”

Trump continued to discuss the pool Monday during a speech at General Motors in Michigan, saying a “sick” person cut the liner and that the pool was undergoing more work. “It’s in the hospital now, but it’s going to get better very soon,” Trump said. “It’s almost ready to open.”