DOJ seeks to keep door open to re-charge David Hearn in Reflecting Pool case

A judge earlier this month dismissed the vandalism case against Hearn.

Prosecutors argue that the Reflecting Pool vandalism case against former Olympian David Hearn should be dismissed without prejudice, which would leave the door open to re-charge him in the future.

In a court filing Tuesday, U.S. Attorney Jeanine Pirro, responding to a defense motion to dismiss the case with prejudice, argued that "Dismissal with prejudice is not necessary to protect the defendant from any future risk of prosecutorial overreach here."

"Should the case be re-presented, the grand-jury process provides extensive protection to the defendant," the filing stated.

Superior Court Judge Todd Edelman earlier this month dismissed the vandalism case against Hearn, a former U.S. Olympic canoeist, and said he would wait to determine whether to grant the dismissal with prejudice.

Defense attorneys, in asking that the case be dismissed with prejudice, argued that President Donald Trump's public rejection of Pirro's decision to drop the charges against Hearn -- saying she "choked" and calling it a "mistake" -- does not "provide Mr. Hearn with meaningful finality consistent with the Constitution's speedy trial and double jeopardy protections."

"The extraordinary public and political circumstances surrounding this prosecution demonstrate a continuing risk of harassment and renewed prosecution," Hearn's defense attorneys said.

Hearn was accused of damaging the Lincoln Memorial Reflecting Pool in a felony indictment, but after prosecutors said they found evidence that the government's own contractor was responsible for the damage, the Justice Department asked to drop the charge without prejudice -- which would allow them to prosecute Hearn in the future for the same alleged crime.

Hearn's attorneys, meanwhile, have asked a superior court judge to order the Justice Department to turn over evidence as part of discovery in the case.

Prosecutors revealed last month in their motion to dismiss the case that they received 695 megabytes of documents from the Department of the Interior after they indicted Hearn, at which time defense attorneys say they first became aware that the damage was "the result of a botched installation and not vandalism," and that the new materials "significantly undermine the evidentiary basis for the indictment."

Hearn's defense team wants access to the government's evidence, which they say is relevant as Judge Edelman considers whether to dismiss the case with prejudice.