Attorneys for David Hearn, a 67-year-old three-time Olympian charged with a felony over roughly two square feet of the Lincoln Memorial Reflecting Pool, have asked a judge to throw the case out after discovering that the physical evidence underlying the indictment is gone. Their motion to dismiss, filed July 16 before Judge Todd Edelman of D.C. Superior Court, includes a sworn declaration stating flatly that the disputed section of liner is missing.
The filing was first surfaced publicly by journalist Marcy Wheeler and reported in detail by Raw Story.
What the government said happened
Hearn was indicted July 2 on a single felony count of destruction of property. Prosecutors allege he pulled up part of the pool’s newly installed liner on June 19.
U.S. Attorney Jeanine Pirro announced the charge at a press conference that same day, telling reporters that National Park Service employees had watched Hearn forcefully and violently pull the bottom liner up with both hands. She emphasized that he had used his bare hands to do it.
When a reporter raised the obvious implication, that tearing an intact liner barehanded would be difficult and that the material may have already been damaged, Pirro did not concede the point. She responded that Hearn damaged it, and that he damaged the pool. Her handling of the announcement drew immediate criticism from legal observers who questioned whether the conduct described amounted to a federal felony at all.
What the photographs show
Hearn has maintained a consistent account since the beginning. He says he noticed a piece of liner that had already come loose, touched it, and let go when a park employee told him to stop. He pleaded not guilty.
His attorneys argue the government’s own record supports him. The motion points to images the government itself submitted as part of its search warrant application, alongside a photograph Hearn took before he made contact with the liner. According to the filing, both sets of images depict identical damage to the same area of the liner before Hearn ever touched it.
That is the entire theory of the defense, and it does not depend on witness credibility or competing interpretations. It depends on the liner itself, which is why what happened next matters.
The evidence demand, and the draining
On July 8, defense attorneys sent the government a written demand to preserve all physical evidence in the case. The motion asserts that the government fenced off the pool that same day and began draining it again for repairs.
Eight days later, on July 16, the defense team was granted access to the drained pool with the government’s assistance. Assistant U.S. Attorney Kevin Reddington accompanied them and pointed out the precise spot where Hearn allegedly touched the liner.
The sworn declaration attached to the motion describes what they found there. The entire section of pool liner is missing.
Hearn’s attorneys write that the government’s failure to preserve the evidence, in the face of an express demand, has destroyed his ability to collect material relevant to his defense. Their conclusion is that dismissal is the only appropriate remedy.
Why this case is bigger than a pool liner
Courts take spoliation seriously precisely because the alternative is unworkable. If a prosecuting authority can charge someone based on physical evidence, receive a formal demand to preserve that evidence, and then allow it to be destroyed while the case is pending, the defendant is left arguing against an accusation he has no way to test.
The scale here makes the dynamic easier to see, not harder. This is not a complex financial conspiracy or a national security matter where classified material complicates disclosure. It is a small piece of vinyl in a public reflecting pool on the National Mall, photographed by multiple parties, in a case announced from a podium with television cameras rolling.
A 67-year-old man with no apparent history of anything like this was publicly branded a violent vandal by the top federal prosecutor in Washington. He now faces a felony count over damage his own timestamped photograph suggests he did not cause, and the object that would settle the question has been removed.
Judge Edelman has not yet ruled on the motion. Whatever he decides, the record already shows a prosecution that moved faster than its own evidence could support, and a government that let the proof disappear after being told in writing to keep it.
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