SAN ANTONIO – The start of an Air Force officer's trial on charges he raped a fellow cadet at the Air Force Academy (search) could be delayed by a legal dispute over access to a rape counselor's records.
The counselor, Jennifer Bier (search), of Colorado Springs, Colo., has been threatened with arrest for refusing to hand over records of her sessions with Jessica Brakey, one of the women accusing 1st Lt. Joseph Harding (search). Bier's attorneys say she will not give up the records, which she considers confidential, and that they will go to the U.S. Supreme Court if she is arrested.
Two uniformed U.S. Marshals delivered another copy of an arrest warrant to Bier on Tuesday, but she was not taken into custody. A message left at an answering service for the U.S. Marshals was not immediately returned.
Prosecutors at Randolph Air Force Base (search), where Harding's trial was to begin Wednesday, do not comment on any cases while they are under way, base spokesman Michael Briggs said Tuesday.
Harding is accused of sexually assaulting two female cadets at the academy near Colorado Springs in 1999 and 2000. He graduated from the academy in 2002.
David Sheldon, a lawyer representing Harding, has filed a motion asking Air Force judge David Brash to stop the proceedings until Bier's records are made available. In case the judge refuses to stop the trial, Sheldon also has filed a motion seeking to bar testimony from Brakey because the defense would not have the records to challenge any evidence she presents.
"All we're trying to do is get this case tried, to get our day in court," Sheldon said. But, he added, access to Bier's records "are paramount."
Under the military subpoena, Bier's records would be reviewed by Brash to determine whether the information was relevant to Harding's case. Brash issued an arrest warrant for Bier last month.
Brakey was among dozens of female cadets at the Air Force Academy 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 Colorado Springs school.
Wendy Murphy, a Boston-based lawyer for Bier, expressed dismay at a 10th U.S. Circuit Court of Appeals ruling this month that Bier would have to go through the military's judicial process to fight the judge's subpoena of her records.
She said military courts don't have the same breadth of judicial power as civilian courts, and that the military courts aren't well-suited to deal with issues involving civilians like Bier.