DOJ Seeks to Keep Door Open to Re-Charge David Hearn

Federal prosecutors are asking a judge to dismiss the vandalism case against former U.S. Olympic canoeist David Hearn without prejudice, a move that would allow the government to re-charge him in the future over alleged damage to the Lincoln Memorial Reflecting Pool.

In a court filing Tuesday, U.S. Attorney Jeanine Pirro responded to a defense motion seeking dismissal with prejudice, arguing that such a step "is not necessary to protect the defendant from any future risk of prosecutorial overreach." She wrote that if the case were re-presented, "the grand-jury process provides extensive protection to the defendant."

Superior Court Judge Todd Edelman dismissed the case earlier this month but said he would decide later whether the dismissal should be with prejudice, which would bar prosecutors from bringing the charge again.

Hearn's defense attorneys argue the case should be closed permanently, pointing to President Donald Trump's public criticism of Pirro's decision to drop the charge. Trump said Pirro "choked" and called the decision a "mistake." The defense said those comments show a "continuing risk of harassment and renewed prosecution" and that without a dismissal with prejudice, Hearn lacks the finality required under the Constitution's speedy trial and double jeopardy protections.

Hearn had been charged in a felony indictment over damage to the Reflecting Pool, but prosecutors later said evidence indicated a government contractor, not Hearn, was responsible. That prompted the Justice Department's request to drop the charge without prejudice.

Prosecutors disclosed last month that they received 695 megabytes of documents from the Department of the Interior after Hearn had already been indicted. Defense attorneys say that material first alerted them that the damage stemmed from "a botched installation and not vandalism," and that it "significantly undermine[s] the evidentiary basis for the indictment."

Hearn's legal team has separately asked the court to order the Justice Department to turn over additional evidence through discovery, which they say is relevant to Judge Edelman's pending decision on whether the dismissal should be with prejudice.