Lawmakers oppose therapist subpoena
By Miles
Moffeit Denver Post Staff Writer
Members of Congress on Thursday urged the Air Force to stop
seeking confidential records kept by a civilian Colorado Springs
therapist, saying her private conversations with women cadets and
others seeking sexual-assault counseling should be protected.
Lawmakers including Democrat Loretta Sanchez of California and
Republican Lindsey Graham of South Carolina are discussing a measure
to strengthen the military's shield law protecting therapists'
records.
And Sen. Wayne Allard, R-Colo., who has assisted dozens of former
cadets who allege their cases were poorly handled by the Air Force
Academy, has asked the Air Force to reconsider its move.
"The records that are being subpoenaed are the private property
of this therapist, not the property of her patients, nor of the
military," Allard said. "Therapists such as Jennifer Bier play an
important role in helping sexual-assault victims understand and
eventually recover from an attack. Her work has been particularly
helpful in assisting Air Force cadets."
Citing personal ethics and Colorado statutes protecting such
records, counselor Bier is defying an Air Force subpoena from Texas
ordering her to turn over notes of conversations with Jessica
Brakey, a former Air Force Academy cadet who has complained of being
raped. The counseling happened outside the military base.
Had Brakey been raped off government property, records of her
therapy sessions would be protected by Colorado law. But since she
said she was raped at the academy, Air Force officials believe they
can subpoena Bier's records.
Defense lawyers for former Cadet Joseph Harding, whom Brakey and
another woman have accused of sexual assault, won a preliminary
ruling from a military judge ordering that the records be turned
over to determine their admissibility. And the Randolph Air Force
Base official who supervises the Texas defense team for Harding said
he doesn't care what Congress says.
"What lawmakers think doesn't concern me," said Lt. Col. Donnie
Bethel, supervisor for Air Force defense counsel in the central
United States. "I care about the constitutional rights of Air Force
members who are accused of crimes."
Air Force Judge David Brash, who could not be reached for
comment, has ordered Bier to respond by today whether she will
comply or face arrest by federal marshals.
As of Thursday, Bier still had not found a lawyer willing to take
her case. Weeks ago, she typed up her own motion to quash the
subpoena, citing Colorado's shield law, and sent it to Randolph, but
a prosecutor at Randolph told The Post they had not received it.
"I'm having trouble finding an attorney who says he's not
conflicted about the case," Bier said Thursday, acknowledging that
the clock was ticking. Leaders of two victim-rights organizations
said late Thursday they would try to help Bier find a lawyer with
expertise in military affairs.
The case, said Sanchez, D-Calif., should be a wake-up call to
Congress that a stronger shield law within the armed forces is
needed to protect counselors from subpoenas.
"The military really doesn't understand these trauma issues,"
Sanchez said, adding that she plans to work with Graham and other
congressional colleagues to legislate better protections. "They have
no idea how important confidentiality is to a sexual-assault
victim."
Victim-rights organizations have noted for years that the
military regulation is so riddled with broad exceptions - eight in
all - that the privilege for therapists' records can be virtually
wiped out in practice.
Bethel, meanwhile, said that if anyone is upset about the
subpoena, they should blame the judge.
"Believe me, judges rule against the defense far more often than
they rule for the defense," he said. "The judge made the ruling, not
the defense counsel. If anyone believes the judge's ruling is wrong,
they should take up their grievance with the judge, not with defense
counsel. I can't make it any plainer than that."
Staff writer Miles Moffeit can be reached at 303-820-1415 or
mmoffeit@denverpost.com.
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