Yesterday, the Federal Sixth Circuit Court of Appeals “vacated” or canceled the District Court’s judgement on the admission of expert testimony in the case of Rasmea Odeh, Chicago Palestinian community leader. Odeh had been convicted in 2014 of naturalization fraud and sentenced last year to 18 months in prison, removal of her US citizenship, and deportation. The appeals court ruling stated that the judge had misinterpreted existing case law when he excluded expert testimony that Odeh suffered from post-traumatic stress disorder (PTSD) when she applied for naturalization in 2004 and denied having been convicted of a serious crime or served time in jail. Odeh and her defense team will need to return to the original Judge Drain for a new evidentiary hearing. According to lead attorney Michael Deutsch, “The case will be remanded [back to Drain] for a determination as to the admissibility of the expert testimony. The appellate court has essentially ruled that it was an error for Drain to have precluded that testimony.” In a quote to Politico Deutsch also added “I am happy and pleased, and it was somewhat what I thought would be the result. The long and short of it is we’ll be back in front of [Drain], and he’ll have to decide if the expert testimony can be excluded on some other ground.” Odeh’s battle to remain out of jail and to stay in the U.S. is far from over.
Odeh had been sentenced in March of last year to eighteen months in prison and deportation to Jordan unless she could win an appeal in front of the three appeals court justices. The government claimed that Odeh unlawfully gained U.S. citizenship by giving false answers on her visa application in 1995 and on her naturalization application in 2004 when she failed to disclose her conviction by the Israelis of participating in bombings in 1969. The conviction in a military court was the result of a coerced confession made after she was tortured and raped by Israeli military authorities. As a result of that torture, Odeh was diagnosed with chronic PTSD by world-renowned psychologist and torture expert, Dr. Mary Fabri, which in the words of the appeal “blocked [Odeh] from understanding the time frame in the questions that were answered falsely.” The defense team argued she was not given the opportunity for a fair trial when the expert witness testimony was denied. The appeal court ruling acknowledged that “In a pretrial evidentiary hearing, Dr. Fabri testified that Odeh’s blocking of her memory would have been ‘automatic.’ Dr. Fabri also stated that Odeh’s professed understanding of the questions is consistent with the symptoms of chronic PTSD.”
During the appeal, Michael Deutsch had argued that “She filtered out her past history as a result of chronic PTSD…The judge precluded her testimony and the expert witness was needed to explain how PTSD works.” Deutsch added “The Judge said that she [Odeh] could not say anything about her history of being tortured.” At the time, the Appeals Judge Moore acknowledged “These are all facts that expert testimony would be needed to determine.”
The original prosecutor of the case, Jonathan Tukel, had argued that according to a “Willis” case that psychological expert testimony could only be used when there was an insanity defense. Appeal Judge Rogers had been particularly critical of Tukel using multiple examples of when someone would be in a state-of-mind of not understanding the question from a language barrier or having amnesia where expert testimony would be required. He also indicated that the “Willis” ruling was a “1990 unpublished order and is not binding on this case.” A rattled Tukel would have to be reminded again of this fact when he returned to the same argument in his rebuttal. From the final ruling of the appeals judges, it’s clear that Tukel lost his argument.
What did the appeals court decide?
In the unanimous ruling by the appeals court, only the defense argument on the exclusion of expert testimony on PTSD was accepted.
“On appeal, Odeh’s primary argument is that she was denied the right to present a complete defense because the district court precluded her witness, an expert in post-traumatic stress disorder (PTSD), from testifying about why Odeh did not know that her statements were false. Odeh maintains that the expert would have testified that Odeh’s alleged torture in an Israeli prison gave her PTSD, which shaped the way that she viewed questions about her criminal history in the naturalization application. Because this type of testimony is not categorically inadmissible to negate a defendant’s knowledge of the falsity of a statement, the district court must reconsider the admissibility of the testimony. Odeh’s remaining objections to other evidentiary rulings and the reasonableness of her sentence are without merit.”
The defense had also argued that the trial court was wrong to allow prejudicial documents from Israel’s military court and called upon the appeals court to resentence Odeh to no additional prison time (she was jailed for 5 weeks after the November 2014 conviction). They had no question about whether the Israeli documents could be admitted.
“These documents were admitted under a mutual legal assistance treaty between the United States and Israel…Mutual Assistance in Criminal Matters, [hereinafter MLAT]. The MLAT provides…that a requesting state may request “copies of any documents, records, or information which are in the possession of a government department or agency of the requested State but which are not publicly available.” The MLAT also provides that where there is an appropriate authentication by the requested state, “no further authentication or certification shall be necessary in order for such records to be admissible” in United States court proceedings.”
The appeals judges also noted “Odeh argues that the district court should have first determined the truth or validity of the documents, and the legality or fairness of the system that produced them. The terms of the MLAT do not require or permit this type of inquiry.” This treaty between Israel and the U.S. allows documents of any kind to be admissible in a U.S. court of law without regard to how they were obtained (including confessions obtained through torture) or whether they are based on a criminal justice system that violates basic human rights (i.e. military court system in Israel). The appeals court’s ruling provides a window into the “special relationship” that the US government has with Israel that by treaty does not recognize the military occupation of Palestinian land or any injustices of the military justice system being used to prosecute Palestinians. In the following statement, even the Israeli Defense Forces are considered “a government department or agency” whose documentation is accepted in a U.S. court of law.
“The MLAT is not limited by its terms to records issued by civilian courts, because it covers “copies of any documents, records, or information which are in the possession of a government department or agency of th[e] State but which are not publicly available.” Because the Israeli Defense Forces is ‘a government department or agency,” Odeh’s claim that the MLAT does not cover Israeli military documents is unavailing. Nor is it the district court’s duty to inquire into the fairness of the system that produced documents admitted under the MLAT. The argument that the documents are inadmissible because they were produced by an allegedly illegal occupation would read a requirement into the MLAT that documents are admissible only if there is no dispute about the legitimacy of the foreign government’s actions. The MLAT explicitly states, however, that once a document is properly authenticated pursuant to another treaty or by an appropriate foreign official, “no further authentication or certification shall be necessary in order for such records to be admissible in evidence in proceedings of the Requesting State.”
As far as the defense motion to reduce Odeh’s sentence considering “her history and characteristics—including her age of sixty-seven at sentencing, PTSD, social work, and alleged torture—and that she would be deported as a result of her conviction” – the court ignored all of those conditions merely saying “The district court did not abuse its discretion in imposing a sentence in the middle of the advisory Guidelines range of fifteen to twenty-one months.”
The court was vague on whether they thought deportation was a “reasonable” punishment in Odeh’s case. “Although we have not yet addressed whether deportation is a permissible factor, this question need not be decided in this case; even if Odeh’s deportation is a permissible factor, the sentence was reasonable.” In the court’s view, “The sentencing hearing was procedurally and substantively reasonable” – the jail time, revoking citizenship, and deportation were all considered “reasonable” punishments for the offense.
In the court’s final decision, the justices avoided being as prescriptive as possible leaving the next steps up to Judge Drain in the Detroit district court.
“Our reversal is based on the categorical exclusion of PTSD-related evidence because § 1425(a) was deemed to be a general-intent crime. We do not address other possible bases for excluding the evidence, under evidentiary standards such as those identified by the district court in its order discussing the use of PTSD testimony in federal and state courts. Nor do we prescribe whether a new trial would be required once the evidentiary determination has been made.”
It would seem that a new trial would be required if during the evidentiary hearing the PTSD expert testimony is allowed. But given the appeals court statement that “nor do we prescribe whether a new trial would be required once the evidentiary determination has been made” – it seems possible that Judge Drain could decide not to order a new trial even if the evidence is allowed. He would need to provide a legal justification for that determination, but the appeals court did leave that option open.
U.S. Attorney Barbara McQuade and Assistant U.S. Attorney Jonathan Tukel, responsible for the original indictment against Odeh, can file a motion asking the appeals court to reconsider its decision. If that doesn’t happen, Judge Drain must make a determination, which would likely mean another evidentiary hearing in Detroit. The defense team believes that “If Judge Drain cannot determine if there are other legal avenues that will allow him to exclude the expert testimony, Rasmea will be granted a new trial” and be able to tell her full story. But given the appeals court not prescribing a new trial based on a determination to include the PTSD evidence, a new trial for Odeh is not guaranteed.
Odeh and her defense team will return to the federal court in Detroit to hold another evidentiary hearing on the admissibility of the PTSD evidence. The appeals court ruling would suggest that if as a result of the new evidentiary hearing the expert testimony on PTSD is allowed in a new trial then all of the documents from Israel’s military court would also be allowed. If on the other hand, another reason was found to exclude the expert testimony during the new evidentiary hearing, Odeh’s conviction would stand along with the jail time, stripping of US citizenship and deportation.
In a statement immediately after the ruling, organizers with the Rasmea Defense Committee, representing over 50 groups across the country, were pleased with the result. Nesreen Hasan of the committee’s headquarters in Chicago commented
“This isn’t a full victory yet, of course, but it really is what we were hoping for and anticipating at this stage. The conviction wasn’t overturned altogether, but at least Judge Drain will be forced to rethink his decision on the torture evidence.”
The Rasmea Defense Committee remains optimistic that once Odeh is able to present her full case that “she will ultimately be exonerated of all charges.” The committee plans to continue to hold fundraisers and gather support for Odeh among her thousands of supporters. According to the ccommittee’s statement today, if the court had upheld the conviction, Odeh’s supporters were prepared to carry out emergency response protests in dozens of U.S. cities.
“With this decision, instead of emergency protests, we’re doing everything we can to ensure that Rasmea finally gets the chance to tell her story in court,” said Frank Chapman, another leader of the committee and a prominent Black police accountability and anti-torture organizer in Chicago. “When the evidence is heard, Rasmea will be exonerated, because a jury will recognize that the only crimes in this case are Israel’s war against the Palestinian people and our U.S. government’s complicity.”
“Rasmea and we are celebrating our victory today, and are thankful for the work of our great lawyers and the thousands of people across the U.S. and the world who have stood with her,” said Lara Kiswani of the committee’s Bay Area chapter.
Besides the fundraising events, the committee plans on organizing educational events, like the International Women’s Day celebrations honoring Odeh in San Francisco, Chicago, Minneapolis, and other cities.