Military prosecutors said Monday that they will ask a U.S. Air Force appeals court to reconsider a ruling that indefinitely postponed a court-martial in an Air Force Academy rape case after the prosecutors missed a deadline.
Friday, in a 2-1 decision, the U.S. Air Force Court of Appeals refused to hear an appeal of an Air Force judge’s decision that postponed the rape case against former Air Force Academy cadet commander Joseph Harding.
Harding, now on active duty as a first lieutenant, is accused of raping Cadet Jessica Brakey in the summer of 2000 during mandatory training at the academy. He also is accused of an assault on another cadet in September 1999.
In June, Col. David Brash, the Air Force’s chief trial judge, postponed Harding’s court-martial on the rape charge after Colorado Springs therapist Jennifer Bier refused to turn over Brakey’s counseling records to Brash. Brakey also refused to sign a waiver permitting Brash to review the records.
Friday, in a decision that shocked Bier, Brakey and her attorney, Wendy Murphy, the Air Force Court of Appeals said it wouldn’t hear the appeal.
It ruled that Air Force prosecutors had failed to submit the transcripts and exhibits involving Brash’s ruling to it for review by the July 15 deadline. The appellate court also said that Air Force prosecutors waited until after July 15 to request more time to get the material to the court.
Prosecutors noted that the record consisted of 675 transcribed pages as well as 81 appellate exhibits consisting of about 3,400 pages.
Air Force spokesman Capt. James Cunningham said prosecutors made a “diligent effort” to meet the court’s deadline but couldn’t because of the “volume, complexity and nature” of the Harding case.
“The government will immediately ask the three-judge panel for reconsideration of its motion” to extend the time, Cunningham said. “If the panel refuses to modify its ruling, the government will ask the entire court to rule.”
Cunningham said that would mean at least nine judges would consider the government’s request.
Murphy, Brakey’s attorney, said she was surprised that the appellate court refused to grant an extension, saying they are routinely allowed.
“A tiny little glitch like missing a deadline by a couple of days can’t possibly justify dismissing such serious charges against a man who is accused of assaulting two different women,” she said.
But David Sheldon, who represents Harding, said the delays have hurt his client.
“Lt. Harding will be exonerated in this case when and if this trial commences,” Sheldon said. “The continued delay caused by the alleged victim in this case and then the Air Force is denying Lt. Harding a right to a fair and speedy trial.”
Staff writer Howard Pankratz can be reached at 303-820-1939 or hpankratz@denverpost.com.
