Defense: Inaction by feds is cause to toss rape case

By Howard Pankratz, Denver Post Staff Writer

The AFA grad's attorney says a therapist he thinks has vital details should be arrested by U.S. Marshals.

The lawyer for an Air Force Academy graduate accused of raping a fellow cadet argued Wednesday that the case should be dismissed because U.S. Marshals refuse to arrest a Colorado Springs therapist that the defense believes has information about the case.

David Sheldon, attorney for Capt. Joseph J. Harding, made the arguments at a hearing at Randolph Air Force Base, Texas.

Sheldon said that in a letter received by Air Force prosecutors June 30, the U.S. Marshals Service cited attorneys' opinions to defend its refusal to arrest therapist Jennifer Bier, who counseled the victim. Sheldon said the Justice Department in Washington, the U.S. attorney's office in Denver and the general counsel's office of the Department of Defense all provided opinions.

In the letter, Sheldon said, the Marshals Service determined it wouldn't follow the order of Col. David Brash, the chief trial judge of the U.S. Air Force, to arrest Bier and retrieve the counseling records.

Sheldon claimed that the refusal to follow Brash's order, issued in May 2005, has violated Harding's right to a speedy trial.

"The bottom line is that somebody in the executive branch decided not to comply with this judge's order, and I find that to be inexplicable and really mind-boggling," Sheldon told The Denver Post. "In essence, Miss Bier is running the show."

Brash is expected to rule Friday on the motion to dismiss.

Bier, who contends the counseling records are privileged and should not be given to Brash, was heartened by the news.

"If ... they have indicated their refusal to arrest me or seize my records, I think that sends a loud and clear message that there is a line of demarcation between the civilian world and the military world that cannot be crossed," Bier said. "I think it would send Col. Brash and the Air Force a clear message that you can't reach this far into the civilian world."

Jeff Dorschner, spokesman for the U.S. attorney's office in Denver, declined comment.

The alleged victim, a former cadet at the Air Force Academy, claims she was raped by Harding in the summer of 2000 during mandatory training at the academy.

Brash issued the arrest warrant for Bier after the therapist refused to turn over the records. Brash wanted to inspect the counseling records to determine whether Harding's defense could use any of them in court during the court-martial.

During the hearing, Sheldon called Harding to the witness stand. Harding testified that he has been "warehoused" at Columbus Air Force Base, Miss., where he has been removed from flight training, has been given odd jobs and has not received officer performance reports as required.

Sheldon said the testimony showed the "real harm" that Harding has "endured as a result of the government's refusal to produce the documents that Bier has been ordered to hand over."