The Air Force’s chief judge refused Friday to dismiss the rape case against an Air Force Academy graduate accused of raping a fellow cadet in 2000.
But the judge, Col. David Brash, called the failure of the federal government to arrest Colorado Springs therapist Jennifer Bier “egregious” and gave government officials 71 days to obtain counseling records made during her sessions with Capt. Joseph J. Harding’s alleged victim.
He didn’t say what would happen if the records weren’t produced in that time.
Brash wants to see the counseling records to determine whether David Sheldon, Harding’s defense attorney, can use them during trial.
Brash made the ruling at Randolph Air Force Base in Texas, where a court-martial would be held.
The alleged victim claims she was raped by Harding in the summer of 2000 during mandatory training at the academy.
Sheldon said that if the documents are not turned over to Brash during the 71 days, he will renew his motion to have the case dismissed.
“Bier’s failure to comply with this order is outrageous, inexplicable and mind-boggling,” Sheldon said.
But Bier, who is a civilian, and her lawyer Wendy Murphy said they have no intention of turning over what they consider to be privileged therapist-client records.
The fact that the U.S. Marshals Service has refused to make the arrest is validation of their position, they said.
The Marshals Service told Air Force prosecutors in a letter dated June 30 they would take no action against Bier on the advice of the U.S. Justice Department in Washington, the U.S. attorney’s office in Denver and the general counsel’s office of the Department of Defense.
“I think this is an important victory,” said Murphy, a professor at the New England School of Law in Boston. “We’ve taken the position from Day One that Brash had no legal authority to arrest Jen (Bier). The federal officials obviously agree with us.”
Bier, who counseled Harding’s alleged victim, said she is adamant in her stance about the records.
“I will not give up those records and don’t believe Col. Brash has a right to demand them,” Bier said. “I feel vindicated.”
Murphy, Bier and Harding’s accuser all hope that in the next 71 days, the Colorado Springs DA’s office will take over the case. Bier said she has been in daily, continuous contact with Diana May, a chief deputy district attorney in Colorado Springs, about that office prosecuting Harding.
In the ruling, Brash blasted the executive branch of the federal government for failing to carry out his order to arrest Bier and seize the documents.
He said government prosecutors in Washington and Denver “have collectively … directed the U.S. Marshals not to enforce” his order. That “collective advice,” Brash said, was the sole impetus for the marshals’ failure to enforce his order.
“The court concludes that there has been an egregious and tactical delay on the part of the government, excepting the (Air Force) trial counsel team,” Brash said. “The subject records must be brought before the court,” and that responsibility rests with the federal officials who have given advice to the marshals.
Staff writer Howard Pankratz can be reached at 303-820-1939 or hpankratz@denverpost.com.
