A witness for the government in the case against former Olympian David Hearn testified that the Lincoln Memorial Reflecting Pool was already deteriorated before Hearn allegedly damaged it, according to court filings that now threaten the foundation of the felony charge against him.
Hearn was indicted this month on destruction of property charges, accused of damaging the pool's liner near the Washington Monument. His legal team says the grand jury witness contradicted the prosecution's core claim by establishing that substantial repairs would have been necessary regardless of Hearn's alleged conduct.
The unnamed witness estimated repair costs of $6,000 to $15,000 based on preexisting damage alone. Critically, the witness could not point to any additional damage or cost attributable to Hearn's actions, according to Hearn's attorneys.
"Simply put, the government's witness could not identify any additional cost caused by Mr. Hearn's alleged conduct," Hearn's legal team wrote in Monday's filing. "Indeed, the witness did not even say or suggest that the alleged conduct had compromised the liner at all."
The case hinges on whether Hearn caused more than $1,000 in damage, the threshold for the felony charge. Prosecutors have not presented evidence meeting that standard, his defense argues, raising questions about whether the grand jury was properly instructed on the legal elements required for an indictment.
Hearn has pleaded not guilty and previously told NBC News that the pool's condition remained unchanged before and after he interacted with the water. He faces charges of destruction of property but maintains his innocence.
The Reflecting Pool has become a flashpoint after President Donald Trump unveiled a plan to coat its bottom with "American flag blue" in time for America's 250th birthday. The project encountered multiple delays, and costs spiraled beyond initial estimates. Once the pool was refilled with the new coating, the paint began peeling and algae growth followed.
Trump initially attributed the pool's problems to vandals, but the scope of responsibility for the deterioration remains muddled. At least three other people have been charged with misdemeanor offenses related to incidents at the pool.
The U.S. Attorney's Office for the District of Columbia, headed by former Fox News host and judge Jeanine Pirro, did not respond to requests for comment on the filing. When pressed by NBC News about how prosecutors could prove Hearn caused $1,000 in damage, Pirro said the government would rely on an expert at trial.
Hearn's attorneys are now questioning whether the indictment should stand at all, given the witness testimony that undermines the prosecution's damage claim. The filing challenges whether the grand jury understood that the defendant must have caused the damage in question, not simply been present when damage existed.
Author Sarah Mitchell: "When the government's own witness destroys its central claim, you have to wonder what made prosecutors confident enough to indict in the first place."
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