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Prosecutors in the last of the U.S. Air Force Academy sex abuse scandal cases to go to trial have asked the U.S. Air Force Court of Criminal Appeals to reconsider its 2-1 decision not to hear an interlocutory appeal because of a missed filing deadline. The Air Force’s intermediate appellate court dismissed the appeal on the grounds that military prosecutors did not get the record together in time nor seek an extension to do so. The appeals panel declined to consider whether trial judge U.S. Air Force Colonel David F. Brash abused his discretion by severing former cadet Jessica N. Brakey’s rape charge because she and her civilian therapist refused to let him review her treatment record in chambers for potentially exculpatory evidence [NLJ, 7-11-05]. The panel also refused to consider whether Brash abused his discretion by proceeding against 1st Lieutenant Joseph J. Harding on a lesser charge of making another female cadet fondle him. Going to full court? Michael P. Briggs, a civilian spokesman for Randolph Air Force Base in Texas, where the case is being tried, said the Air Force asked the three-judge panel to reconsider its ruling and, failing that, would ask the court’s full nine-member bench to rule on the government’s motion to suspend the rule prescribing the deadline for the transmittal of the appellate record. The court-martial proceeding had stalled over the refusal by Brakey and her therapist to produce Brakey’s treatment record for the judge to review. The therapist, Jennifer Bier, a Colorado Springs, Colo., social worker in private practice, counseled Brakey after Harding allegedly raped her on the academy’s Colorado Springs campus in 2000. Bier had claimed that Colorado law protects her privilege to keep that information confidential. Brash declined to prosecute the offense without seeing Brakey’s file. Wendy J. Murphy, a New England School of Law professor who represents the women, said that Brash ordered her clients to produce the records “without a proffer or even a motion filed by the defense.” Murphy said the records are not even Brady material subject to review for possible evidence. When Brash threatened to arrest Bier in June, she took the matter to federal court, but both U.S. District Judge Edward W. Nottingham in Denver and the 10th U.S. Circuit Court of Appeals declined to intervene in court-martial proceedings, ruling and affirming that Bier needed to seek clarification of the law through higher review within the military justice system. Federal marshals made two trips to Bier’s office to serve Brash’s arrest warrant, but neither obtained the file the court sought nor arrested her. Thwarted in his attempt to review Brakey’s treatment records, Brash decided to “abate” the rape charge and sever it from the proceeding, prompting the prosecution to appeal. Murphy noted that none of the cases tried so far has resulted in a conviction.

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