A military judge’s ruling to put off a court-martial on a rape charge probably will not be the end of the case, experts following the proceedings said Friday.
The case against Air Force 1st Lt. Joseph Harding has gained national attention because a civilian therapist, Jennifer Bier of Colorado Springs, refuses to give a military court the counseling files on her client, the alleged victim in the case.
The decision by Col. David Brash, the presiding judge, to “abate” the case could result in the charge against Harding being dismissed, said Dave Brahms, a retired brigadier general and the Marine’s former top lawyer.
But the abatement will more than likely just delay the case until a resolution on the counseling files is reached, Brahms said.
“Obviously we have to figure out what in heaven’s name do we do now,” Brahms said.
Brash didn’t say Friday whether he would follow through on his threat to jail Bier for refusing his order to give up her records. But if he chose to do that, he would have to apply to a civilian federal judge for help in persuading her to change her mind.
“It could be turned over to the U.S. attorney for Bier’s failure to comply,” Brahms said. “Where we are in that process is unknown.”
David Ware, a Pueblo lawyer and former military attorney who successfully argued before the Colorado Supreme Court in 2002 that therapist records should be off-limits to judges in criminal cases, said the military court is limited in scope when dealing with civilians such as Bier.
“The real problem from the standpoint of the military judge is that he is not a judicial officer who is constitutionally appointed,” Ware said. “It is a court of very limited jurisdiction.”
But the military court could seek outside aid in an attempt to have Bier comply with Brash’s directive.
“Playing devil’s advocate, if I were the military prosecutor, I would certainly be exploring my options of having a U.S. attorney bring some heat down on the (therapist),” Ware said.
But if Bier still refused, even while sitting in jail, and military prosecutors chose not to appeal the judge’s decision that the records were essential to the defense case, or lost on appeal in military courts, then the rape charge against Harding could disappear.
Bier’s attorney, Wendy Murphy, has said that prosecution of Harding should go forward without Bier’s records and that the military should leave Bier alone.
Ware agreed that he’d prefer that the military court incorporate Colorado’s Supreme Court rulings that favor strong therapist-patient privilege by law.
Murphy, who also represents the accuser, Jessica Brakey, said that as far as she is concerned, the abatement ruling is akin to dismissal of the rape charge.
“This ruling forces the victim to choose (between prosecution and disclosure of her counseling records) – which is outrageous,” Murphy said. “So if they mean it, they have to appeal. They should want a higher court to review the propriety of such a decision when so much is at stake for victims in general.”
But Brahms describes the case as being at “loggerheads.”
“I still think something is going to be worked out, but everyone tells me ‘No,’ ” he said.
Brahms said even if the judge dismisses the Harding case after waiting for the records, the issue will more than likely end up in an appellate court.
“There are important issues on both sides,” he said. “We shouldn’t diminish the dilemma in which the therapist finds herself.”
Staff writer Kieran Nicholson can be reached at 303-820-1822 or knicholson@denverpost.com.
