Since Friday, there have been four new filings in the Davey Hearn case. The most importantly, procedurally, is the government’s argument that the case against Hearn should be dismissed without prejudice. Hearn has a week to sur-reply.
In its background paragraph, it implies that the case against Hearn should be dismissed without prejudice because there may be other instances of vandalism … presumably, meaning by others, and that, by itself warrants holding open the possibility of reindicting Hearn.
At the outset it should be noted that the government sought this indictment in good faith after the Department of the Interior (“DOI”) provided evidence, albeit incomplete, that there was vandalism to the Reflecting Pool. However, based on newly received Brady materials from DOI, the government could not sustain its burden that the defendant’s actions caused further damage to the liner beyond the condition that Bay 4 was already in, Accordingly, consistent both with its evidence, its burden of proof, and its ethical obligations, the government was required to move to dismiss the case pursuant to Rule 48. This, however, does not suggest that there was no vandalism to other areas of the Reflecting Pool.
All that sounds like a desperate attempt to avoid antagonizing Trump any more by contradicting his false claims about vandalism.
The filing does a variety of things to deny the clear evidence that the original indictment involved various kinds of misconduct, virtually all of which are nonsensical. Perhaps the most cynical is a show of providing Judge Todd Edelman some grand jury transcripts (before it spends two paragraphs relitigating whether Hearn’s release of descriptions of grand jury transcripts violated the protective order or not).
2 The defendant separately moved to dismiss the indictment in a publicly filed Motion and Supplement that cherry-picked references and direct quotations from grand jury transcripts. Defendant’s public filing sought to undermine the public’s confidence in the grand jury proceedings, while also capitalizing on the government’s limited ability to respond given the secrecy requirements imposed by Rule 6(e). The government is submitting its summation and instructions to the grand jury to the Court ex parte for its in camera review, which will confirm for the Court that there were no irregularities with the grand jury proceedings as the defendant claims.
Except, that’s not what Hearn asked for when he asked for grand jury transcripts in July.
He asked for for the complete transcript.
Accordingly, Mr. Hearn respectfully moves, pursuant to Superior Court Rule of Criminal Procedure 6(e)(3)(E)(i, for disclosure of (1) the legal instructions provided to the ‘grand jury concerning the elements of the charged offense; and (2) the complete transcript or minutes of all grand-jury proceedings related to this matter.
When he renewed his request a day later, after getting more transcripts showing impropriety, he asked for the complete grand jury minutes, which would include the summation and the introduction and any additional witness testimony.
For the reasons set forth above and in his Motion for Disclosure of Grand Jury Minutes and Legal Instructions, Mr. Hearn respectfully requests that the Court order the government to disclose the complete grand jury minutes in this matter and the legal instructions given to the grand jury on the elements of D.C. Code § 22-303, or, alternatively, conduct an in camera review of the requested material.
Hearn’s response to DOJ’s motion to dismiss renewed that request.
Should the Court determine that additional factual development is needed to support dismissal with prejudice, the Court should grant Mr. Hearn’s pending request for disclosure of the grand jury materials or, in the alternative, conduct an in camera review before deciding whether dismissal with prejudice is appropriate.
There’s one big reason to suspect providing just the summation would be inadequate.
In yesterday’s filing, DOJ claimed that, given the testimony of two Parks Department witnesses (Hearn identified further inconsistencies in the primary witness’ testimony last week), the only thing left for the grand jury was to assess economic loss.
The government’s investigation included interviews with two National Park Service (“NPS”) employees, W-1 and W-2, who were working at the Reflecting Pool when the defendant approached the area where they were working, W-I stated they observed the defendant using his cellular telephone to take what the NPS employee believed to be video or a photograph(s) of the damage to the reflecting pool. However, the United States Park Police never took possession of the defendants phone to verify if any additional damage was done. The NPS employee, W-1, stated that the defendant then knelt, placed both hands into the reflecting pool—below the surface of the water—and started to “violently” tug at a portion of the blue pool coating, At no time was the defendant seen removing anything from the pool. The NPS employee, W-1, asked the second NPS employee, W-2, to contact, police and requested that the defendant not touch or rip at the coating, The defendant told W-1 that the NPS personnel were “awfully sensitive about the pool.”
The only question relevant to charges was the economic loss.
Except it had just admitted that DOJ had no idea — and had not yet sought evidence — of whether “any additional damage was done.”
That is, DOJ confessed they had no idea whether Hearn had done any damage to the pool, but nevertheless moved immediately to testing whether he did enough damage to charge with a felony.
It’s not entirely clear what Hearn has received so far.
But by description, DOJ is providing just a fraction of what Hearn has asked for which, in the Broadview 6 case, withheld the most damning parts of the grand jury transcript.
New filings:
280814 Discovery: Files a discovery letter sent the same day
260814 Supplement: Points to Trump’s whining and inconsistencies with primary accuser; the filing submits three partially new exhibits
260818 Dismiss Response: The government argues that Hearn is not entitled to dismissal with prejudice
260818 Motion to Compel: Hearn lays out all the discovery he has not yet gotten, including what they seized from his phone
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