JAG CENTRAL

I really should be studying for the bar, but since NPR's Talk of the Nation devoted an entire hour (click here to listen) to this topic today, I really must comment.

From the AP, word that a federal court has issued an arrest warrant against Jennifer Bier, the counselor who provided post-traumatic counseling to a female cadet who alleged that cadet Joseph Harding raped her. Apparently, she felt that the subpoena for her counseling records was not valid because Military Rule of Evidence 513 and the Constitution protected these records from disclosure. Two guests appeared on Talk of the Nation to discuss the case. The first was retired Navy RADM John Huston, the former JAG of the Navy and currently the President and Dean of Franklin Pierce Law School. He defended the legality of the subpoena and the arrest warrant:

Theoretically it is an appropriate thing to be doing...court martials are federal courts, the judges have worldwide jurisdiction, so this is an entirely legal thing to do.

Wendy Murphy, the attorney for Jennifer Bier, disagrees:

Counseling she provided is protected not only by Colorado law but by military law, MRE 513...and none of the explicit exceptions apply.

ANALYSIS: There are several layers of analysis to explore here. The first level was whether the military judge was right in issuing the subpoena. MRE 513 does provide a limited psychotherapist-patient privilege. However, there are exceptions. It appears that the only relevant exception to privilege is #8, which reads, "when admission or disclosure of a communication is constitutionally required." It appears here that the military judge has decided that the production of such records is required by the constitution to ensure that 1LT Harding receives a fair trial. Bier's attorney argues that while the accused might have a right to a fair trial, there is no constitutional right to pretrial production of civilian records that are otherwise constitutionally protected. Whether or not she is right may never be litigated because of the following procedural issues.

First of all is whether the military judge had the power to issue an arrest warrant. Military courts-martial do have the power of subpoena, according to 10 U.S.C. 847 and Rule for Court Martial 703. Any military judge may issue a warrant of attachment according to the UCMJ to any person within the U.S. to appear in a court-martial taking place in the U.S. Ms. Bier claims that the military judge is not interpreting the law correctly and therefore refuses to honor the subpoena duces tecum. However, this does not excuse her from violating the subpoena. Her only recourse is to try to argue this in front of the court martial. If she loses, she may appeal the matter to the Army Court of Criminal Appeals, but she can't disobey the order and seek relief in federal court.

But that's exactly what she's doing this week. Wendy Murphy, Ms. Bier's attorney, is seeking an emergency order to rescind the arrest warrant. Look for precedent-setting law depending on how the federal district court rules. Stay tuned...