Reflections on the Reflecting Pool Case

Commentary by Adam Van Grack

Adam Van Grack is a current City of Rockville councilmember and is a former chair of USA Canoe/Kayak. He practices law at Longman & Van Grack, with offices in Bethesda, Rockville, and D.C. His comments are based on developments as of July 24. The opinions stated are those of the author and are not offered as a representation of CCA policy.

I have known Davey Hearn for decades. I know him as an Olympian, a World Champion, a coach, a volunteer, a paddler, and a friend. I also know the Hearn family as part of the fabric of the Washington-area paddling community. Davey, his father Carter Hearn, and so many others helped build the community that many of us have been fortunate to be part of. That is why this prosecution of Davey has been so difficult to watch.

Davey is now facing a felony destruction of property charge related to the Lincoln Memorial Reflecting Pool. I am not Davey's lawyer, and nothing in this article is intended as legal advice or as a statement from his defense team. I am writing as someone who knows Davey, as an attorney, as a former chair of the U.S. Olympic governing body for canoe and kayak sports, and as someone who believes this case raises serious questions about fairness, proportionality, and common sense.

The case is being handled in District of Columbia Superior Court. Although many people understandably refer to this as a "federal" prosecution because it involves the U.S. Attorney's Office, the U.S. Attorney for the District of Columbia also prosecutes most local adult criminal cases in D.C. Superior Court.  At the request of the Cruiser newsletter, I am providing answers to some of the questions that CCA Members have been asking.

1. What does the prosecution need to prove?

The charge against Davey appears to be based on D.C.'s malicious destruction of property statute. Under D.C. Code §22-303, the government must prove that a person (Davey here) maliciously injured, broke, destroyed, or attempted to injure, break, or destroy property that was not his own. For felony treatment, the statute includes a $1,000 threshold. The maximum penalty written into the statute is severe: up to 10 years in prison, a fine, or both. But the words "felony" and "maximum penalty" are not the same thing as proof.

Generally speaking, the essential elements of malicious destruction of property require proof that the defendant damaged or destroyed, or attempted to damage or destroy, property; that the property belonged to another; that the property had value; that the defendant acted voluntarily and on purpose, not by mistake or accident; that the defendant intended to damage or destroy the property or knew his conduct created a substantial risk of harm; and that he acted without justification, excuse, or mitigating circumstances. Those elements matter a great deal here.

Based on the public information and the defense filings, the facts of case may present several real problems for the prosecution.

First, the government must prove causation. It is not enough to show that the Reflecting Pool liner was merely "damaged." The government must prove, beyond a reasonable doubt, that Davey caused the damage charged. That proof may be difficult if the liner was already peeling, separating, floating, or deteriorating before Davey ever touched the water.

Second, the government must prove actual damage or destruction. Simply removing or disassembling something does not automatically equal damaging or destroying it under this statute. Purposely doing an act is not the same thing as acting with malicious destruction.

Third, the government must prove the required state of mind. That step may be one of the hardest parts of this case for the government to prove. The government needs more than negligence, curiosity, mistake, or poor judgment. It must prove that Davey intended to damage the property or knowingly disregarded a substantial risk that his conduct would cause that harm.

Fourth, the government must prove the felony-level value threshold. If the government's theory is that Davey caused more than $1,000 in damage, then the defense will likely press hard on what damage is actually attributable to Davey, rather than to pre-existing problems with the liner or later work done after the pool was drained.

In other words, this case is not simply about whether Davey touched the Reflecting Pool. It is about whether the government can prove malicious felony destruction of property beyond a reasonable doubt.

2. Are Davey's Olympic history and community involvement relevant?

Legally, Davey's Olympic history and community involvement do not answer the question of whether he did what prosecutors allege. A jury will not be instructed to acquit someone simply because he is an Olympian, contributed to the community, or is a good person. However, Davey's life and character are not irrelevant.

Davey's character and past actions (including his volunteer efforts to care for and protect the National Park Service's Lockhouse 6 and Feeder Canal Slalom Course) are relevant to the comprehension of the government's portrayal of him. The idea that Davey Hearn is some malicious destroyer of public property is impossible to reconcile with the Davey so many of us know.

Davey has represented the United States in the Olympics. He has coached and mentored younger athletes. He has volunteered in the paddling community. He and his family have helped care for public lands, waterways, and places that matter to all of us. That history does not replace evidence; however, these past actions do provide important context. It may matter in court depending on the evidence, the issues raised, and the rules governing admissibility.

3. What happens from this point forward?

Davey's trial date has been set for Sept. 28 in D.C. Superior Court.  There is also a pretrial hearing Sept. 11 in D.C. Superior Court.

At the status hearing July 20, Davey's legal team's motion to dismiss was not granted. However, my understanding is that the defense can still refile the motion with additional evidence, which may be argued Sept. 11, the deadline that the judge has set for the parties to provide briefing on the status of the government's preservation of evidence.

Between now and trial, several things can happen. The defense will continue reviewing discovery, including photographs, video, witness statements, and other evidence produced by the government. There may be additional motions (such as a renewed motion to dismiss). There may be further disputes about the condition of the Reflecting Pool, the preservation or alteration of evidence, the contents of Davey's phone, expert evidence, and whether the government can prove each element of the charge.

There could also be plea discussions, although whether those occur or whether they go anywhere is up to the parties. The government could continue forward, reduce the charge, dismiss the case, or make an offer. Davey and his lawyers could reject any offer and insist on trial.

If the case proceeds to trial, the process will generally include jury selection, opening statements, the government's evidence, cross-examination by the defense, any defense evidence, closing arguments, jury instructions, and jury deliberations. The government bears the burden of proof. If Davey is acquitted, the case ends. If he is convicted, sentencing would occur later.

4. What is the likelihood of this going to trial?

It is impossible to know. Most criminal cases do not ultimately go to trial. Many are dismissed, reduced, or resolved by agreement. But this case is unusual.

Davey has pleaded not guilty. His lawyers have filed a motion to dismiss (which while denied, can be refiled). Davey's legal team believes it has strong evidence that Davey did not cause the damage alleged. Davey also has every reason to want his name cleared.

For those reasons, it is unlikely that this case will quietly disappear through a routine plea. It may go to trial. At the same time, the government could still reassess the evidence, the public interest, and the proportionality of pursuing a felony case.

My view is simple: we should assume the Sept. 28 trial date will occur, because it most likely will.

5. What is the likelihood of a D.C. jury convicting?

No one should pretend to know what a jury will do. However, based on the public information available, I believe Davey has seriously strong defenses.

A conviction would require the government to prove much more than that Davey was present at the Reflecting Pool, touched the water, or grabbed the pool liner. The government must prove beyond a reasonable doubt that Davey caused legally significant damage, acted with the required malicious intent, lacked justification or mitigating circumstances, and met the felony threshold of $1,000 in damage.

If the defense can show that the liner was already failing, that the same damage existed before Davey touched the water, that no tools were used, that Davey's conduct was consistent with curiosity or concern rather than destruction, and that the government cannot reliably separate pre-existing damage from alleged damage caused by Davey, then a jury may have serious reasonable doubt.

That does not mean acquittal is a foregone conclusion. Juries are unpredictable. We also have not seen all of the evidence the government says it has. However, from what is publicly available, Davey's case does not look like an easy case for the prosecution.

6. What is the likelihood of a substantial fine or prison sentence?

The maximum penalty is frightening. That is one reason so many of us are concerned. D.C. Code §22-303 allows for a penalty of up to 10 years in prison for felony malicious destruction of property.

However, a statutory maximum is not the same thing as a likely sentence. If Davey is convicted, sentencing would depend on many factors, including the court's view of the evidence, the actual loss or damage proven, Davey's personal history, any prior record, mitigation, the sentencing guidelines, and arguments from both sides.

Based on the public facts as I understand them, a substantial prison sentence would be surprising. This is not a case involving violence against a person. It is not a case involving theft, weapons, threats, or danger to the public. It is a property case arising from a deteriorating public feature where the central disputes appear to be causation, intent, and proportionality.

A fine, restitution, or other conditions could be possible if there were a conviction, especially if the court found proven loss. But even short of prison, a felony conviction would be a serious and unjust result if the evidence does not support it.

And we should not lose sight of something important: the prosecution itself is already punishment. Being arrested, charged, publicly accused, forced to retain counsel, deprived of property, and placed under the threat of a felony conviction is a heavy burden for anyone.

7. Where do we go from here?



Standing up for Davey at the courthouse does not mean attacking the court, court staff, witnesses, or anyone else. It means showing support respectfully and clearly. It means reminding Davey that he is not standing alone. It means reminding the public that prosecutorial power must be used with fairness, proportionality, and common sense.

For decades, Davey Hearn has shown up for others. He has shown up for athletes, for paddlers, for public lands, for the river, and for this community. Now it is our turn to show up for him.