Under ordinary circumstances, Colorado Springs therapist Jennifer Bier would seem to have powerful allies in her fight to keep a client’s rape-counseling records confidential.
There’s the U.S. Supreme Court, which ruled in 1996 that therapy records were protected from disclosure in a civil lawsuit because the mental health of the nation’s citizens is “of transcendent importance.” And there’s the Colorado Supreme Court, which ruled in 2002 that such records are off-limits even to judges in criminal cases, citing the state’s strong therapist-patient privilege law.
But Bier’s case is far from ordinary. Because her client, Jessica Brakey, was an Air Force service member when she sought treatment, the civilian counselor finds herself squeezed between two court systems – military and civilian – as well as the rights of Brakey and her alleged attacker.
Federal courts, military or otherwise, have never heard a case involving a civilian therapist’s treatment of an armed-services member, and the military’s own rules governing privilege have never faced an appellate challenge.
And while some state supreme courts, district courts and appellate courts have protected therapists’ records from disclosure in past criminal cases, the U.S. Supreme Court hasn’t answered the basic question posed by the Bier case: Whose rights are more important, the criminal defendant’s right to confront witnesses or the alleged victim’s right to keep therapy records private?
“This case opens a Pandora’s box,” said David Ware, a Pueblo attorney who successfully argued the civilian 2002 Colorado high court case on behalf of a local therapist. “Privileges are designed to protect sacrosanct relations that can’t properly function if you bust down private communication between a therapist and patient. But do military privileges apply to a civilian therapist? Or do federal privileges? There are a lot of questions.”
For now, Denver’s 10th U.S. Circuit Court of Appeals – a civilian federal court, where Bier has sought to block a warrant for her arrest issued by an Air Force judge – is considering the case based on a combination of military and federal law. But that court could decide to send the case back into military courts for a decision.
Whatever happens, the upward paths of both federal systems eventually intersect at the U.S. Supreme Court.
After a U.S. District Court judge declined to block Bier’s arrest week, her lawyers won an emergency stay from the 10th Circuit late Friday, keeping her free for now while the panel decides whether to take the case.
In written briefs, Bier’s lawyers argue that Brakey’s constitutional rights to privacy and due process are being violated. In a brief filed Wednesday, lawyers representing Randolph Air Force Base in Texas repeated their argument that Judge David Brash acted properly in subpoenaing the records for his review because Brakey’s alleged attacker, Lt. Joseph Harding, has a constitutional right to confront witnesses against him. The Air Force also has argued that civilian courts should not “interfere” with military jurisdiction over the case.
Harding, Brakey’s cadet commander at the Air Force Academy, will stand trial on charges of raping her on the Colorado Springs campus in 2000 and sexually assaulting another woman in 1999. After the alleged attack, Brakey sought treatment from Bier. Harding, who is stationed at Columbus Air Force Base in Mississippi, has never been incarcerated or restricted to his base, an option available to military commanders.
His court-martial is set to begin Wednesday at the installation near San Antonio, intensifying the urgency of resolving the Bier case.
Landmark ruling in 1996
Boundaries of privilege law are still evolving across the country.
On the federal level, rules of evidence recognize the privacy safeguard, but the district courts have not yet clearly outlined circumstances in which they apply. Most states have laws granting privileged therapy communications, but they offer varying degrees of protection. While some, such as Colorado, bar even judges from peering into records, others do not go that far.
In Bier’s case, the judge has asked to examine the records first, before considering whether to admit them as evidence. Bier’s lawyer, Wendy Murphy, has argued that no government official, judge or not, should invade the private thoughts of a therapy patient.
A landmark decision occurred in 1996, when the U.S. Supreme Court, in Jaffee vs. Redmond, recognized a powerful federal therapist-patient privilege in the civil lawsuit, ruling that it served the greater public interest.
“Effective psychotherapy depends upon an atmosphere of confidence and trust, and therefore the mere possibility of disclosure of confidential communications may impede … successful treatment,” the opinion stated, adding that it overrides the “likely evidentiary benefit.”
Because there was no criminal defendant, Sixth Amendment issues were not at play in the 1996 case. But the Supreme Court’s ruling signaled that the rule of privilege can trump evidentiary needs. The high court declined to outline specific limits of privilege, however, leaving it to the courts to develop. But it said state laws should be weighed in determining the scope.
In 1999, President Clinton cited the importance of the Jaffee ruling in issuing an executive order enacting a psychotherapist privilege for military service members. Known as Military Rule of Evidence 513, it contains eight exceptions, including “when the communication’s disclosure is constitutionally required” – the very exception Judge Brash and Harding’s lawyers have seized on in their briefs.
What does all this mean to Bier’s case?
Legal experts call it a puzzling jurisdictional overlap that must be resolved.
“Military rules of evidence are, in fact, grounded in large measure in the federal rules,” said Brig. Gen. David Brahms, the Marines’ former top lawyer. “So we’re not talking about two completely alien systems.”
Said Jim Pyles, counsel for the American Psychoanalytic Association: “Being in the military does not remove constitutional” issues.
A ruling last year by the 8th U.S. Circuit Court of Appeals could serve as a key debating point. Newton vs. Kemna tackled the very issue of whether a defendant’s Sixth Amendment “confrontation clause” right gives him access to a witness’ psychotherapy records. In the case, a defendant convicted of murder attempted to gain access to the therapy files of the crime’s only witness. In deciding the issues, the court ruled that the Jaffee ruling was “absolute” and that not even an inspection by the judge is allowed.
That decision falls in line with several circuit court decisions since Jaffee, holding that the privilege could not be overcome.
May not be “absolute”
However, legal experts stress that case law has never been tested against the relatively new military-privilege rules.
Greg Rogus, the lawyer who argued and won in Jaffee vs. Redmond, stressed that his case did not focus on whether constitutional issues such as the Sixth Amendment can overcome privilege.
“Though some people have said Jaffee is absolute, I’m not so sure,” Rogus said. “Let’s face it, part of the Constitution says one of our bedrock rights is to confront witnesses, cross-examine witnesses and be able to mount a defense. When you consider what a criminal defendant stands to lose, you can’t brush aside those rights lightly.”
In a dissent to the 7-2 Jaffee decision, Justice Antonin Scalia unfavorably compared the therapist-patient relationship to that of a bartender and a patron.
“For most of history, men and women have worked out their difficulties by talking to … parents, siblings, best friends and bartenders – none of whom was awarded a privilege against testifying in court.”
To counter Bier’s claims, the legal team representing Harding has cited the Supreme Court’s 1974 Davis vs. Alaska. In that case, the high court held that a lower court denied a defendant his right of confrontation by not letting him question a witness about his juvenile record, which was deemed confidential.
So what if a military court uses the Davis case to establish Harding’s right to see Bier’s notes, while the 10th Circuit Court of Appeals uses Jaffee-based cases to protect those same notes?
“The issues are fascinating, but they are hard for a lot of people to understand,” Rogus said. “Civilians are naturally going to react to a situation like this and say, ‘Aren’t the courts about justice?’ I confess, it’s even difficult for me to understand it because I haven’t practiced military law, which is a different system of justice.”
Staff writer Miles Moffeit can be reached at 303-820-1415 or mmoffeit@denverpost.com.
Three key cases
Arguments on both sides of the Jennifer Bier case are likely to revolve around three key appellate decisions regarding confidential records
Davis vs. Alaska | In 1974, the U.S. Supreme Court decided that a defendant had a right to confront a witness about juvenile probationary records deemed confidential, saying such a right was “vital” to effective cross-examination.
Jaffee vs. Redmond | In 1996, the U.S. Supreme Court recognized a psychotherapist-patient privilege under a federal evidentiary rule in a civil lawsuit. The justices held that such a protection was a “public good transcending the normally predominant principle” for finding truth.
Newton vs. Kemna | In 2004, the 8th U.S. Circuit Court of Appeals in St. Louis ruled that a criminal defendant may not invoke a Sixth Amendment “confrontation clause” right to access a witness’ psychotherapy records, saying the Jaffee decision is “absolute.” Even a judge’s access is not allowed, the court said.
