Randolph Air Force Base, Texas – An Air Force judge today denied a motion to dismiss sex-related charges against an Air Force Academy graduate, ruling that lawyers for 1st Lt. Joseph Harding failed to prove that an Air Force general was unduly influenced before bringing the case against Harding.
Harding is accused of “indecent assault” against one female cadet in September 1999 and raping a second female cadet in August 2000.
David Sheldon, Harding’s lead defense attorney, told Col. David Brash – the Air Force’s chief trial judge – that the charges never should have been brought in the first place. Sheldon said the Air Force Academy had originally recommended against bringing charges against Harding, only to have that decision overridden after a series of meetings among Air Force brass.
At the time, the Academy was under intense media and Congressional scrutiny for its response to sexual assault cases on campus.
Two of the generals who participated in meetings that ultimately led to Harding’s court martial acknowledged in testimony this morning that there was considerable debate within the Air Force about Harding’s case.
They said they were aware that the Academy had decided not to proceed against Harding. They knew that the secretary of the Air Force, James Roche, had ordered a review of several cases including Harding’s. But they denied that they were improperly influenced in deciding to bring charges.
Ultimately, said Major Gen. Edward “Buster” Ellis, commander of the 19th Air Force, of the Air Education and Training Command at San Antonio’s Randolph Air Base, it was nights of prayer that helped lead him to the conclusion that Harding should stand trial.
After considering the motion for more than two hours, Brash agreed that there was no evidence that Ellis was improperly influenced. At that point, defense attorneys moved to dismiss the case because they have not received notes from a civilian therapist who treated one of Harding’s alleged victims.
Brash then closed the hearing to the public, and began taking testimony on the new motion to dismiss.
Earlier today, recently retired Gen. Donald Cook, a four-star general who was Ellis’s commander, testified that Ellis was conflicted about what to do with Harding, given the various points of view. Cook said he also was torn about whether there was enough evidence to send the case against Harding to a court martial.
But Col. Bruce Brown, who has served as a military judge and was Cook’s legal advisor, testified that after reviewing the Article 32 proceedings against Harding – the equivalent of a civilian preliminary hearing to determine if there is sufficient evidence to go forward with a court martial – he believed Harding should be court-martialed.
Brown said he told Cook of his feelings and then met with Ellis, who had specifically asked to talk to him before making his decision.
Brown said that he was keenly aware that the defense might raise the question later of whether he was trying to influence Ellis on behalf of Cook. As a result, he said he told Ellis he was speaking only for himself, not on behalf of Cook.
“I told Ellis I was speaking only for myself and not General Cook – because that would be inappropriate,” Brown testified.
Brown said he was aware of the original Air Force Academy recommendation not proceed against Harding and he asked several people in his own office to take a look at the case.
“There was a split of opinion. It was not a slam-dunk,” Brown said.
Brown also said that he was aware that Roche had asked for a review of number of Air Force Academy cases, including the two involving Harding. But he said he wasn’t influenced in his belief either by Roche, the publicity the Air Force Academy allegations had caused or inquiries from Congress.
He said he was impressed by Ellis, who told him after their meeting that he (Ellis) would spend some time before making a final decision on whether to recommend a court martial of Harding.
“He (Ellis) said, ‘I appreciate it. I’m going to think about it and pray about it over the weekend and make a decision’,” Brown recalled.
“It was my opinion I was asked by Gen. Ellis to provide him my opinion about the Harding case. I got the distinct impression I was speaking for me and me alone,” Brown said. “I was having a commander asking me for my opinion in a difficult case.”
Lt. Col. Michael O’Sullivan, one of the prosecutors, told Brash that the defense failed to show any improper command influence to have Harding court-martialed.
