Attorney, therapist fighting subpoena in court-martial
DENVER ” A rape counselor faced with jail remained adamant Wednesday that she wouldn’t turn over records of her sessions with a former Air Force Academy cadet while her attorney prepared an attack of the arrest warrant issued by a military judge.
The case involving Jennifer Bier, a civilian therapist in private practice in Colorado Springs, could be precedent-setting because of questions about the scope of the military court’s authority and the counselor’s stand to protect her client’s privacy, Bier’s lawyer, Wendy Murphy of Boston, said.
The warrant was issued last week following Bier’s refusal to turn over records in the pending court-martial of 1st Lt. Joseph Harding, accused of sexually assaulting two female cadets at the academy near Colorado Springs in 1999 and 2000. He graduated from the academy in 2002.
Murphy plans to seek an emergency order in federal court in Denver to prevent Bier’s arrest. She originally considered going to court in Texas, where the court-martial will take place, but will file her motion in Colorado because Bier lives here.
She is working with Denver lawyers Peter Forbes and Jay Horowitz.
Bier counseled Jssica Brakey, who accused Harding of sexual assault. Brakey also is one of dozens of female cadets who said they were ignored or unished when they reported sexual assaults. Brakey spoke publicly about the allegations, which touched off a scandal in 2003 that led to several investigations and the ouster of the academy’s top four commanders.
Bier said she was nervous about the prospect of being arrested at any time.
“I’m sitting at my desk, looking up every time I see a shadow in the hall, and I wonder, ‘Is that a client or a federal marshal,” she said.
The therapist said she has the strong support of her family, but conceded there were “a couple meltdowns” over the weekend as the possibility of her arrest became more real.
Bier, though, said she remained firm about not handing over the records subpoenaed by Harding’s attorneys.
“There’s really no other ethical or moral way for me to act,” Bier said. “It’s really a difficult position. I’m not a disobedient American. I don’t take refusal of a subpoena lightly.”
But giving in would amount to betrayal of her client, she added.
Harding is stationed with the 14th Operations Support Squadron at Columbus Air Force Base in Mississippi. His trial was moved to Randolph Air Force Base near San Antonio, Texas, for logistical reasons, including the lack of a permanent Area Defense Counsel at the Mississippi base.
Murphy, who teaches at the New England School of Law in Boston and works with female victims of violence, said the military could subpoena civilians.
“The real unanswered question is what enforcement power does the military have,” she said.
Another issue is whether a therapist can be forced to turn over records that under most state laws would be privileged information. Murphy said Colorado has one of the strongest laws protecting mental health records and it’s unfair that a civilian is more protected than one serving her country at a military academy in Colorado.
Harding’s attorneys have said their client’s right to a fair trial overrides Brakey’s right to privacy.
Murphy said others have handed over records, although she hasn’t seen them because they are under seal.
Bier said she believes this case and others will intimidate victims.
“Victims must choose between justice and no healing or healing with no justice,” she said.
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