Witness says Lincoln Memorial pool was damaged before alleged vandalism

Former Olympic canoeist Davey Hearn’s lawyers say testimony undermines felony charge

A witness in the case against a former Olympic canoeist accused of vandalizing the Lincoln Memorial reflecting pool testified that the area of the pool liner was already damaged and would have required repairs regardless of David “Davey” Hearn’s alleged actions.

A court filing released on Monday contained that revelation – and in the document, lawyers for Hearn requested access to all grand jury testimony that led to his indictment, pointing to “irregularities” in those proceedings.

Hearn’s lawyers also requested that prosecutors disclose the legal instructions they gave to grand jurors about the elements of the criminal charge handed up against him.

“The grand jury transcripts disclosed to the defense thus far contain other irregularities that reflect a misleading presentation to the grand jury and a need for review of the entire grand jury record in this matter,” Hearn’s attorneys wrote.

Hearn pleaded not guilty earlier in July to one felony count of property destruction – a charge that could result in a 10-year prison sentence and a $1,000 fine. He has a trial scheduled to start on 28 September in Washington DC superior court.

In its court filing on Monday, Hearn’s legal team questioned whether prosecutors properly presented the grand jury with adequate evidence to support the amount of damage alleged in the indictment at the center of the case.

A National Park Service (NPS) official testified that the pool already was damaged before Hearn allegedly touched it, couldn’t quantify any damage attributable to the accused and said the same repairs would have been required regardless of his conduct, defense attorneys contended.

“The witness’s testimony established that the pool had substantial preexisting damage requiring repair before any alleged conduct by Mr Hearn,” his lawyers wrote. “According to the witness, the pool was leaking more than one million gallons of water per week; its expansion joints had exceeded their service life; and the liner already contained a rip.”

Hearn had previously told NBC News that “the condition of the Reflecting Pool was the same after I stepped away from the water as it was before I got there.”

The shallow reflecting pool’s condition prior to the US’s semiquincentennial celebrations on 4 July became a contentious partisan political issue after Donald Trump initiated a $16m renovation that involved lining the pool with a specialized blue paint in “American flag blue”.

But the president’s proscribed fix for problems including leaks and algae blooms didn’t work as planned. The liner started separating and the pool once again turned green after specialist aeration machines were turned off before a UFC fight on the White House lawn.

Trump blamed vandals for the failures of the renovation and three people – including Hearn – were hit with misdemeanor charges for either taking or trying to take pieces of the blue liner.

Hearn, 67, competed in three Summer Olympics. He told the Associated Press that he was detained by the national guard and US park police for five hours after stopping by the pool during a bike ride on 19 June.

Hearn said he reached into the pool and briefly touched a chunk attached to the side – but said he obeyed a park worker who told him to let go of it.

According to his lawyers, the NPS witness – unnamed in Monday’s filing – “established that the pool had substantial preexisting damage requiring repair before any alleged conduct by Mr Hearn”.

The witness also said the cost to repair the pool would have been $6,000 to $15,000, based on pre-existing damage in the area.

“Simply put, the government’s witness could not identify any additional cost caused by Mr Hearn’s alleged conduct,” the defense team wrote. “Indeed, the witness did not even say or suggest that the alleged conduct had compromised the liner at all.”

They also questioned whether Hearn’s felony indictment had been “lawfully returned”. Hearn previously asked the court to dismiss the case.

“The grand jury’s indictment of Mr Hearn is hard to explain,” the lawyers wrote. “Mr Hearn needs to learn whether the grand jury was properly instructed that the charge required him to have caused over $1,000 in damages, when the testimony failed to establish that he caused any damage at all. So does this Court.”

US attorney Jeanine Pirro’s office did not immediately respond to a request for comment on the new claims.

But the pool issue continues to be a fixation for Trump. During a speech on Monday at General Motors in Michigan, Trump claimed a “sick” person cut the liner in the pool. The pool, he indicated, is undergoing further treatment.

“It’s in the hospital now, but it’s going to get better very soon,” Trump said. “It’s almost ready to open.”

The Associated Press contributed reporting