A judge Thursday said federal prosecutors cannot refile charges against a former Olympian who had been accused of damaging the Lincoln Memorial Reflecting Pool only to have the case abruptly dropped weeks later.
“The Court respects the authority of the Office of the United States Attorney to decide which cases to prosecute and which to dismiss,” D.C. Superior Court Judge Todd E. Edelman said in his court order. “However, in the exceptional circumstances posed by this case, the government has no right to retain the ability to compound the errors it has already made, or even to threaten to do so, at Mr. Hearn’s expense.”
The decision comes three months after David Hearn was arrested after he reached for a piece of liner floating in the Reflecting Pool. President Donald Trump blamed vandals for damaging the newly renovated landmark.
The Justice Department later would suggest the damage was from a “botched” and rushed installation. A Washington Post analysis found the peeling paint was probably caused by application flaws.
At a hearing in September, Assistant U.S. Attorney Michael Spence told the judge that if new evidence were to arise, the choice should be up to a grand jury whether to reindict Hearn.
But Edelman on Thursday sided with Hearn’s attorneys, who had argued the case should be dismissed with prejudice, meaning the government cannot bring charges against Hearn in the future.
In his order, Edelman wrote that Trump’s criticism of the decision to drop the case and repeated personal attacks against Hearn put him at risk of “a meritless, politically driven prosecution in the future.”
“Mr. Hearn faces the unique possibility that the government will revive this case — one that it has already announced to be meritless — based on political pressure brought by the President of the United States upon his subordinate officers,” Edelman wrote.
Edelman said prosecutors appeared to base their arguments that they should be free to charge Hearn again on “an entirely theoretical possibility that evidence may somehow appear that undermines its current well-founded conclusion that no crime was committed,” adding that it was unlike any case he could recall.
The White House declined to comment on the decision, referring The Post to previous social media posts by the president. The U.S. attorney’s office for D.C. did not immediately respond to requests for comment.
“This decision is a victory for the rule of law and for an innocent American seeking justice,” Hearn’s attorneys — Norm Eisen, Steve Levin, Mary Dohrmann and Michael Bromwich — said in a statement Thursday.
Hearn was one of at least four people arrested near the Reflecting Pool this summer and accused of vandalizing the pool basin.
U.S. Attorney Jeanine Pirro vowed to crack down on the alleged vandalism and secured a felony indictment against Hearn in July and misdemeanor charges against the others.
But weeks later, Pirro’s office unexpectedly moved to drop the cases, including Hearn’s felony charge, after federal prosecutors claimed evidence from the Interior Department suggested the damage was due to faulty installation and not vandalism.
Trump blasted Pirro for dropping the charges and has continued to blame vandals.
Edelman dismissed the case against Hearn in August but reserved judgment on whether prosecutors should retain the option to resurrect the case.
Hearn’s attorneys said prosecutors should not be able to. They argued prosecutors were aware of problems with the installation at the Reflecting Pool all along, but pressed to indict Hearn anyway.
During a status hearing in September, Edelman appeared skeptical of the government’s arguments for why federal prosecutors should be allowed to reopen the case, even as they conceded there was no probable cause to charge Hearn.
Edelman also pressed the government as to why it moved forward with a “rapid indictment” of Hearn.
Spence, the government attorney, said prosecutors had witness testimony and probable cause at the time of Hearn’s indictment. Federal prosecutors argued in court filings that they acted “in good faith.”
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