Judge Questions Rape Case Records Holdup

Associated Press, By ELIZABETH WHITE | July 12, 2006 PM

A judge in the trial of an Air Force Academy graduate charged with rape demanded to know Wednesday why medical records of his accuser had not been obtained as he ordered more than a year ago.

The judge halted the court-martial of Capt. Joseph Harding in June 2005 because a civilian therapist for the woman who claims she was raped would not hand over the documents. Harding is accused of raping the woman at the Colorado academy in 2000.

During Wednesday's hearing on a motion to dismiss the charge, prosecutors said the judge's order was unclear on how authorities should get the records. Meanwhile, therapist Jennifer Bier said she still has no plans to turn them over.

"I don't know that anybody is prepared to go to jail, but I'm not prepared to render my entire field and the tenets of my field null and void," Bier said from Colorado. Neither she nor her attorney attended the hearing.

Bier said the records were confidential and protected by state law. She was threatened with jail time, but never arrested.

Wendy Murphy, a Boston lawyer who represents Bier and the accuser, said the records issue is forcing Jessica Brakey, who has agreed to have her named used publicly, "to choose between privacy and prosecution." She said the court already has enough information to proceed.

David Sheldon, Harding's lawyer, said his client maintains his innocence and that Bier's refusal to release the records hinders Harding's "right to have a resolution of this in a timely manner." He declined to say what information was contained in the records.

Sheldon argued Wednesday that the rape charge should be dropped because the protracted case is violating his client's constitutional rights. But military prosecutor Lt. Col. Michael O'Sullivan said the length of the case is neither a violation nor unusual.

Sheldon said he expects a decision on the dismissal motion Friday.

Harding, now married, testified Wednesday that things have been difficult for him in the past year. He has been placed on administrative hold at a Mississippi base and was unable to finish his pilot training.

After the judge, Col. David Brash, put the rape charge on hold last year, the government appealed but missed the deadline for transferring records to the higher court, the Air Force Court of Criminal Appeals. The court rejected a request for more time.

Military prosecutors then appealed to the U.S. Court of Appeals for the Armed Forces, a civilian panel in Washington, which sent the case back to Brash in April.

The case grew out of the academy's 2003 assault scandal, which prompted several investigations and toppled the school's top commanders.

Brakey's allegations helped spark the scandal at the academy. Dozens of women said they were punished or ignored when they reported being sexually assaulted.

A separate indecent assault charge against Harding was dismissed last year at the request of another accuser. Harding had been accused of assaulting the cadet in 1999.