Colorado Therapist Case Revisited

In an interesting change in strategy, the Colorado Springs therapist who has defied an military judge's demand in a court martial case to hand over records of her meetings with a female former AFA cadet declined to take her final appeal to the Supreme Court. She has lost earlier appeals at the District and Appeals Court levels. Instead, she is relying on earlier precedence that if the courts are to imprison her, action will have to be taken by the U.S Attorney's office and she and her lawyer want to see what will happen then. This is an interesting tack and one that the therapist's lawyer, Wendy Murphy seems confident in. I am certainly no lawyer but I have to question the strategy in light of the court decisions thus far. In particular, it is not clear to me why the therapist has not challenged the judge's order in the military courts first, as instructed by the Federal Courts. Given a Pentagon ruling on patient privilege, my hunch would be that she has a high probability of success and if she loses then the Federal courts are open to her on what is likely to be more friendly ground. But perhaps on principle, she and her lawyer simply do not want to subject her to the military courts since she is, after all, a civilian.

DenverPost.com - LOCAL NEWS: "After a U.S. District Court judge had ruled the arrest warrant valid, the 10th U.S. Circuit Court of Appeals on Thursday also declined to block the arrest warrant, saying it was reluctant to interfere in a military proceeding and pointed to a 1975 Supreme Court case in support of its move.

Instead of ruling on the constitutionality and privilege-protection questions, the court said Bier's appeal should be exhausted first in the military's own justice system, relying on a case cited by the Air Force. Murphy, however, has declined to appeal in the military system. "