After a weekend to mull her options, Colorado Springs therapist Jennifer Bier and her attorney Wendy Murphy, have decided not to appeal her case to the Supreme Court right now. A military judge issued an arrest warrant for Bier after she refused to comply with the court’s order to turn over patient records of an accuser in an AFA rape case set for trial this week. Bier took her case to federal court, but both Judge Edward Notthingham and the 10th Circuit Appeals Court ruled against her. They said Murphy hasn’t fully gone through the military appeals court process. Murphy wants to stay out of of the military courts. After the 10th Circuit ruling last week, Murphy said she’d go to the Supreme Court. Why the change of heart? Murphy is hoping public opinion will keep the feds from going through with the arrest. If they do, she’ll re-consider taking that action. My Translation: Murphy knows Bier doesn’t have a strong enough case, and if she loses in the Supreme Court, she will end up making “bad law” that will make affect therapists across the nation.
Bier says she is willing to go to jail rather than provide the records. The U.S. attorney’s office isn’t saying whether Bier will be arrested. There’s one person who’s being forgotten here: The Air Force Cadet facing rape charges. If anything in Bier’s notes casts doubt on the accuser’s story, his right to a fair trial demands that it be disclosed. First to a judge “in camera”, and if truly exculpatory, then to his attorney. What could be in those notes that would be so compelling? What if she initially told the therapist there was no rape? In my view, the courts are correct in ruling that a defendant’s right to a fair trial trumps an accuser’s right to privacy in her therapy records. If Bier is arrested, however, the outcome may be determined on the issue of whether the military court has the authority to order a civilian to turn over records. Nottingham and the Tenth Circuit didn’t have much of a problem answering this question, “yes.” Will the Supreme Court see it differently? Stay tuned….if there’s an arrest, we’ll bring you the news – as well as the details of any Supreme Court action Bier seeks as a result.