Reflecting Pool prosecutor said government wasn't 'forthcoming'

Michael Spence, an assistant U.S. Attorney in the District of Columbia, wrote in a July 31 document that prosecutors in his office attempted to get "everything" from the Department of Interior early in the process of prosecuting David Hearn.

But Spence, who works for U.S. Attorney Jeanine Pirro, wrote that the department provided "less than fulsome information" when the case began and only "started trickling information" describing installation problems after his office reached out "dozens and dozens of times."

USA Today has reached out to the Department of the Interior for comment.

When the office finally received records, they described a rushed installation of the liner, heavy rain that caused installation to stop periodically, and joints in the underlying concrete that complicated the installation, according to his description in the document.

Spence said neither the prosecutors nor the grand jury who indicted Hearn had access to the information before the grand jury returned the indictment, and, "Had the DOI been forthcoming with the information clearly in its possession, the government would not have brought a grand jury indictment."

Here’s what we know based on the court document:

There are joints under the pool

One of the key issues the document describes is that there are long, narrow joints running underneath and around the perimeter of the Reflecting Pool. The joints are designed to allow the concrete slabs that make up the bottom of the pool to expand and contract as they get hotter and colder during the day.

Atlantic Industrial Coatings, the company responsible for the work, originally prepared to spray two coatings on the floor of the pool, similar to the way a painter would use a sprayer to paint a house, the document says. But the contractor had to do multiple rounds of testing in order to find a third type of coating that would seal the joints.

The document describes how Atlantic Industrial Coatings attempted to start spraying the Reflecting Pool at the beginning of May, but kept having to pause work due to heavy rainfall, at one point stopping for five days in a row and only moving from 80% to 81% completion in the course of a week.

Just two days after inspectors signed off on the work, an engineer with the National Park Service reported peeling around the perimeter of the pool, where the third type of coating was applied over the joints, the document says. The engineer relayed that the contractor called this "overspray."

"I stated my concern that this 'overspray' along the perimeter of the pool could lead to a (one-foot to two-foot) strip that is vulnerable to peeling," the document says. "The contractor would not confirm in field if this was or wasn't a risk."

Heavy rain caused stop-start project

The document describes a May 7 email in which a subcontractor said the project was "significantly behind schedule." Spence wrote that the email went to several Department of Interior employees and "revealed a sense of urgency and rushing."

A quality control inspector first found blistering in the lining on May 20, while installation was still in progress, and Atlantic Industrial Coatings repaired it, the document says. There was heavy rain that night, and crews had to pump water out of the Reflecting Pool and mechanically dry the liner.

The document says spraying the joints continued through June 6, and by June 7, the "bulk of the work" was complete so the pool was refilled with water. Inspectors completed the final inspection June 9, in order to prepare for the Ultimate Fighting Championship match on the White House lawn.

Prosecutor said he was ethically bound

Spence wrote that his office brought the case based on representations from the Department of the Interior that Hearn caused over $1,000 worth of damage and that "nearly all of the damage to the Reflecting Pool was due to vandalism."

But Spence wrote that the July 11 report from the engineer contradicted both counts. He said the perimeter damage was exactly what Hearn was accused of vandalizing, and the report specifically said the peeling perimeter "will not impact the strength of the liner."

Prosecutors have an ethical and legal responsibility to tell defendants if they come across evidence that could prove their innocence, and Spence cited the Supreme Court precedent for this, Brady v. Maryland, as a basis for asking the judge to dismiss the charges against Hearn.

Spence also wrote that continuing to prosecute the case after he received the new information would have been a violation of DOJ policy, which says prosecutions should only continue if the defendant "will more likely than not be found guilty beyond a reasonable doubt."