Jeanine Pirro’s Reflecting Pool Case Faces Major Hurdles: Legal Experts

In late September, a former Olympian is scheduled to go on trial in Washington, D.C., for allegedly vandalizing the Reflecting Pool following President Donald Trump’s troubled renovation of the site.

Jeanine Pirro, Trump’s U.S. attorney for D.C., accused David Hearn, 67, of “forcefully and violently” pulling at the pool’s liner and destroying it. Her office has charged him with felony destruction of property under the D.C. criminal code, which comes with a prison sentence of up to 10 years.

Many of Pirro’s most closely watched and politicized cases have flamed out in embarrassing fashion, resulting in dropped charges or acquittals for the defendants. While there is much we don’t know about the government’s evidence against Hearn, experts in criminal law say Pirro’s office faces some high hurdles in convincing a D.C. jury that the onetime Olympian canoeist committed a felony.

A Bethesda, Maryland, resident, Hearn had just completed a 52-mile bike ride on June 19 when he decided to swing by the National Mall and check out the Reflecting Pool, he told The Washington Post after his arrest. The pool had turned into an object of public fascination due to reports of algae blooming and its new liner falling apart shortly after Trump’s costly renovation.

Hearn said he saw a piece of the flapping blue liner, reached into the water and touched it. “I didn’t vandalize anything,” he told the Post. “I didn’t destroy or break or peel anything.” Video from journalist Emily Miller showed Hearn, wearing a helmet and holding his bicycle, being put into handcuffs.

His arrest came at a time when Trump was trying to blame vandals for the pool’s woes, rather than the shoddiness of his hasty, no-bid overhaul, which has been well documented. Trump has also claimed someone cut a massive gash into the pool, several hundred feet long, evidence of which the administration has not yet provided.

A D.C. grand jury indicted Hearn on July 2.

The crime Hearn is accused of applies expressly to someone who “maliciously injures or breaks or destroys, or attempts to injure or break or destroy” public or private property. So even if Hearn did damage the pool’s liner ― which he claims he did not ― one of the biggest challenges for prosecutors will be demonstrating beyond a reasonable doubt that he acted with malicious intent.

That is not an easy task, said Glenn Kirschner, a former prosecutor who worked for 24 years in the office Pirro now runs.

“‘Malicious’ means you’re doing it with a black heart, with evil intent,” he said. “Come on now. It sounds like he was just being curious.”

There is nothing in the public domain, either in the form of video or witness statements to the press, suggesting Hearn acted maliciously when he touched the pool liner. Kirschner said the case appeared to be “bullshit,” but cautioned there could be stronger evidence that we aren’t aware of, perhaps in the form of Park Police or witness testimony, to bolster Pirro’s claim that Hearn was violently yanking at the pool.

“Maybe they have a station wagon full of nuns who watched this guy wrestle with a slab of pool liner, and they’re all of unimpeachable character,” he mused.

Kirschner said when he was a prosecutor he would have expected even the arresting cops in such a scenario to view it as a “no paper” ― that is, a case where they made an arrest but have no viable case.

“This would never be charged in the before-times when you had honest, honorable prosecutorial discretion being exercised,” he said.

Even if prosecutors can prove malice, they still have another problem to overcome: demonstrating that the damage Hearn allegedly inflicted was worth at least $1,000, as D.C. code specifies.

Proving value often requires calling expert witnesses who can explain how much an object is worth. But this case doesn’t involve a diamond ring or valuable work of art; it revolves around a relatively small section of liner ― 2 square feet, according to Pirro ― within a massive pool that was destined for another draining and more rehab work.

Even if pool specialists can assign a value to the piece in question, the prosecution’s case is complicated by the widely reported fact that the pool was already peeling, said Barbara McQuade, a University of Michigan law professor and former U.S. attorney. After all, that’s what Hearn has said brought him to the National Mall that day in the first place.

“Unless he really slashed it and removed the [liner], if all he did was pull up and peel what was already damaged, it seems hard to prove he caused $1,000 of damage,” McQuade said.

Kirschner said proving value can be a difficult chore. He once prosecuted a case in D.C. involving a senator’s stolen ring, and he called three experts to the stand, including a jeweler, to testify to the ring’s worth. After a conviction, he said the judge openly urged the defense to file an appeal on the grounds Kirschner didn’t sufficiently show the ring’s value.

“How in the hell do you prove more than $1,000 in damage here?” he said.

Securing a grand jury indictment is easy – it’s supposed to be, anyway – but winning a guilty verdict at trial is another matter. Especially in a city that’s shown deep skepticism to other high-profile cases Pirro has pursued since Trump put her in charge of the office last May.

Last year, the Justice Department brought a litany of cases accusing D.C. locals of assaulting federal agents or threatening the life of the president. In many, grand jurors returned “no bills,” or declined to indict on felony charges. Still others were lowered to misdemeanors or resulted in acquittals. Judges were openly rebuking prosecutors from the bench for bringing flimsy cases that wasted the court’s time.

Legal experts said they have a hard time seeing a D.C. jury take these charges seriously and come back with a guilty verdict. The city had 127 homicides last year, and many residents are likely to view a prosecution like Hearn’s as a waste of time.

“I think a D.C. jury is going to be mad,” said Abbe Smith, a professor at Georgetown Law and former public defender. “They’re going to say, ‘Are you serious? This isn’t a serious crime that needs to be prosecuted, that I need to sit and give up my time for.’”

The alleged crime will strike jurors as “patently ridiculous,” Smith said, much like the case against Sean Dunn, the D.C. “Sandwich guy,” who was charged with assaulting a federal officer last August after throwing a Subway sandwich at a Border Patrol agent. Dunn was acquitted after a trial in federal court.

Smith said she wouldn’t be surprised if in the coming weeks prosecutors downgraded the case to a misdemeanor or dropped it altogether before the Sept. 28 trial date. If not, she sees it going the same way as the sandwich case – only faster.

“I can’t imagine a jury being out for more than an hour,” she said.