Imagine you’re David Hearn. You represented the United States as a canoeist in three Olympic games. A quarter century later, your country’s government indicts you for a crime based on evidence that is utterly undermined by later disclosed facts. Your face and name become national news, associated with what the president claims is “vandalism.”
Ultimately, federal prosecutors seek to dismiss the case against you. They say new information from the Department of the Interior indicates the Reflecting Pool is falling apart, not because of vandalism, but because of a “rushed and botched installation” by the contractor President Donald Trump selected. (Even after the Justice Department dismissed the charges, Trump continued to maintain this was “a pure case of VANDALISM.”)
What is an apparently wrongly accused Olympian to do? Hearn’s attorneys have filed a motion to dismiss the charges with prejudice, so that prosecutors cannot revive the case. But does he have any recourse against the government? It’s difficult — but not impossible.
If Hearn is able to clear the immunity hurdle, he could bring a defamation suit against Pirro for statements she made outside the courtroom.
Hearn’s first obstacle is that prosecutors generally have absolute immunity from civil damages for claims based on their role as advocates, including their decisions to bring an indictment and the presentations they make to grand juries. Depending on the case, they also may possess qualified immunity for doing things like providing advice to law enforcement officers about the investigation and making statements to the press.
If Hearn is able to clear the immunity hurdle, he could bring a defamation suit against Pirro for statements she made outside the courtroom. Unfortunately for Hearn, under the Westfall Act, when federal employees are accused of committing defamation while acting within the scope of their employment, the government is generally substituted as the defendant, and the employee (Pirro) is dismissed from the case. Once the U.S. steps in as a defendant, it generally enjoys sovereign immunity (a legal rule that basically says you don’t get to sue the government unless it agrees to it). Under the Federal Torts Claims Act, Congress opted not to waive sovereign immunity for defamation actions. In short, if a court finds that Pirro acted within the scope of her employment when she allegedly defamed Hearn, the case is essentially dead on arrival.
Hearn could also ask the D.C. Superior Court judge overseeing the case to impose sanctions or an order of contempt on the prosecutors who brought the case. Hearn could also seek to have the judge refer them for discipline by the D.C. Office of Disciplinary Counsel or the Department of Justice’s Office of Professional Responsibility.
But even if a prosecution is ultimately unsupported by evidence, judges don’t generally impose sanctions or an order of contempt. Contempt generally requires conduct such as disobeying a lawful court order, obstruction of a judicial proceeding or other specific misconduct. Judges also have inherent authority to impose sanctions, but that typically requires a finding of bad faith or abuse of the judicial process. Bringing and then seeking to dismiss a case, without more, is not sanctionable conduct.
Even if the judge doesn’t make a disciplinary referral, Hearn could file a bar complaint and ask the DC Bar to investigate potential misconduct by Pirro and other prosecutors involved with the case. The DC Bar’s rules applicable to prosecutors prohibit them from bringing charges they know lack probable cause, intentionally withholding exculpatory information, intentionally avoiding information because it could hurt their cases or making public statements that unnecessarily heighten condemnation of an accused person.
Rather than target prosecutors, Hearn’s best option may be to bring a claim under the FTCA based on alleged misconduct by federal law enforcement officers in the Interior.
Here again, merely obtaining and later seeking to dismiss an indictment would not give rise to professional discipline. In their motion to dismiss the case, federal prosecutors said the Interior provided “less than fulsome information” and that they would not have sought the indictment had the Interior been forthcoming. (Interior Secretary Doug Burgum said his department provided the DOJ with “every piece of evidence they asked for.”) A disciplinary case would depend on evidence that prosecutors knew the charge lacked probable cause, not just that they knew their investigation was incomplete. Disciplinary action could follow if evidence shows that prosecutors intentionally concealed exculpatory information, abused the grand-jury process or lied to the court.
Rather than target prosecutors, Hearn’s best option may be to bring a claim under the FTCA based on alleged misconduct by federal law enforcement officers the Interior, such as the Park Police. Under the FTCA, individuals can bring claims for malicious prosecution and abuse-of-process against federal employees authorized to perform searches and seizures. For malicious prosecution, that would include showing that an officer initiated or procured the prosecution, that the prosecution lacked probable cause and that the officer acted with malice. Hearn would likely have to show that investigators misrepresented, withheld or falsified material information. An abuse-of-process case requires an ulterior purpose plus misuse of judicial process to obtain an end the process was not designed to accomplish. If the evidence points in that direction, Hearn could receive a remedy for this train wreck of a prosecution.
In the end, Hearn faced a prosecution whose factual foundation proved so shaky and unreliable that prosecutors asked the court to dismiss it. But the legal system may not give him (or anyone in his position) an easy remedy. A statement of “oops we goofed” leaves something to be desired.
The debacle over the imagined vandalism in the pool is another example of the consequences when federal prosecutors race forward with a case lacking in either factual basis or legal grounding. There are ways to obtain remedies, but they are difficult and unsatisfying.
Once again, we are left realizing that in the past our protection from government overreach largely relied on government actors to adhere to norms, but not necessarily binding rules. This case was brought under enormous political pressure from Trump, who has been comfortable leaning on the DOJ to file charges against political enemies. Promoting and supporting the independence of the DOJ would be the cleanest way to protect Hearn — and all of us.
The post How the former Olympian accused of Reflecting Pool vandalism could get justice appeared first on MS NOW.
