Court Upholds Ruling The Stopped Military Rape Trial

Associated Press | Aug. 17, 2005, 11:30PM

SAN ANTONIO - A military appellate court denied a bid by prosecutors to reverse a lower ruling that shelved a rape charge against an Air Force Academy graduate accused of assaulting a fellow cadet five years ago.

A three-judge panel of the Air Force Court of Criminal Appeals ruled in favor of the defendant, 1st Lt. Joseph Harding, in late July because the prosecution failed to file its appeal or seek an extension within the 20-day time limit stipulated under military justice rules.

On Friday, the Washington, D.C.-based appeals court stood by that ruling in response to a prosecution request that the strict filing rules be relaxed in Harding's case.

The ruling leaves in place a June decision by trial judge Col. David Brash, who stopped Harding's rape trial at Randolph Air Force Base near San Antonio because a civilian mental health counselor from Colorado has refused to release records of her sessions with Jessica Brakey, the alleged victim.

Harding does, however, face general court-martial on a separate charge of indecent assault against another woman at the Colorado Springs, Colo., school while both were cadets.

Attorney David Sheldon, representing Harding, said Wednesday that trial is expected to start in mid-October.

1st Lt. Nancy Kuck, an Air Force spokeswoman in suburban Washington, said the military plans to challenge the Air Force appeals court ruling before the U.S. Court of Appeals for the Armed Forces, a civilian panel in Washington.

Sheldon described the prosecution's inability to file its appeal on time as "inexplicable" and "mind-boggling."

"If they can't comply with the rules for filing, then the appeal should be dismissed," he said.

It was unclear why the government team - prosecutors at Randolph working with military appellate lawyers in Washington - failed to finish its appeal or ask for an extension before the deadline, as mandated under the legal rules.

Harding, a pilot trainee stationed at Columbus Air Force Base, Miss., is accused of raping Brakey in 2000 and assaulting the other cadet in 1999.

Brakey, who has spoken publicly on a number of occasions about the allegations, was among dozens of female cadets who said they were ignored or punished after telling military superiors they had been sexually assaulted.

Their stories ignited a scandal in 2003 that led to several investigations and the ouster of top commanders at the academy.