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Devastating pre-trial rulings against Rasmieh Odeh in naturalization prosecution

Devastating pre-trial rulings against Rasmieh Odeh in naturalization prosecution

Court shuts down defense attempt to contest her Israeli bombing conviction in prosecution for making false statements on naturalization application.

The trial of Rasmieh Odeh, an American citizen of Palestinian descent convicted in Israel decades ago of involvement in a terrorist group (the Popular Front for the Liberation of Palestine) that bombed a supermarket in the late 1960s, starts November 4.

Odeh was convicted in Israel, but now claims she was tortured into confessing.

The U.S. government is prosecuting Odeh for failing to disclose the conviction when she applied for naturalization.

Several key rulings came down in Court this afternoon (full embeds to be added at bottom of post:

  1. In what is possibly the most devastating ruling against the defense, the Court granted the government’s motion to reconsider a prior ruling on what types of intent the government needed to prove.  The court had ruled that the government needed to show that Odeh made a false statement for the purpose of obtaining citizenship.  The judge corrected that ruling, finding that “in order to establish the intent element of the instant offense, the Government need only prove Defendant made a false statement knowing it to be false.”  The prior ruling had been viewed as damaging to the prosecution, since it is hard to prove why someone made a false statement.
  2. In light of the ruling on the type of intent the government needed to prove, the Court rejected Odeh’s request to present evidence that at the time she filled out the naturalization application, she suffered from PTSD.  “In light of the Court’s decision concerning the mens rea required for proving a violation of § 1425, the Court must deny Defendant’s Motion for Offer of Proof, which seeks to admit the testimony of a clinical psychologist concerning her conclusions with respect to Defendant’s defense related to post-traumatic stress disorder. It is well settled that this type of defense is inadmissible to negate the mens rea of a general intent crime, thus the expert’s testimony is irrelevant to the issues herein and inadmissible at trial.”
  3. The Court rejected Odeh’s request for a jury questionnaire.  “Defendant has failed to come forward with any evidence, nor even explain why this Court’s usual practice of conducting voir dire is insufficient to uncover juror biases or other reasons precluding suitability to serve on Defendant’s jury. This failure, coupled with the lack of extensive pretrial publicity, leads the Court to conclude that a jury questionnaire is unwarranted under the circumstances present here.”
  4. The Court will not allow Odeh to put the merits of her conviction in Israel into issue in the current case, even though the court viewed as credible her claim that she was coerced into confessing. “The Court of course agrees that confessions obtained through the use of torture and rape are antithetical to the concepts of fairness, due process and basic human rights. Moreover, the Court accepts as credible Defendant’s claims of torture and is not unaffected by the inhumane circumstances of her detention in the West Bank. However, the issue here is whether Defendant provided false answers on her Visa and Naturalization Applications. The validity of Defendant’s conviction is not an issue for the jury’s  determination. As the Court noted during the hearing in this matter, it will not be retrying Defendant’s convictions for membership in an unlawful organization and her activities related to the bombings of the Supersol grocery store or the British Consulate in Jerusalem in the early part of 1969.” As we previously wrote, there is evidence other than the confession to support the Israeli conviction.
  5. The Court ruled that Israeli records may be used to prove the conviction, pursuant to a Mutual Legal Assistance Treaty. “The Government maintains that the documents at issue were produced in accordance with the Treaty, do not require further authentication and are admissible. The Court agrees.”
  6. The Court will allow the government to introduce the specific charges of which she was convicted in Israel. “As such, contrary to Defendant’s arguments, the specific crimes for which she was convicted in 1969 are directly relevant to the materiality element of unlawful procurement of naturalization…. Lastly, Defendant’s contention that the unfair  prejudice resulting from the admission of the specifics of her conviction outweighs the relevance of her convictions is without merit. Her conviction for participating in the bombing of the SuperSol grocery store and the building housing the British Consulate are directly related to the elements of materiality and procurement. The probative value of this evidence is overwhelming. Without this evidence, the Government will be unable to establish two elements of the crime of unlawful procurement of naturalization.”
  7. The Court ruled that the government may not use the words “terrorist” or “terrorism” as those terms are prejudicial.  That’s not much of a victory considering the bombing conviction can be admitted in evidence. “The Government’s suggestion that the terms “terrorist” and “terrorism” will not improperly influence the jury because those terms are used by Congress in the Immigration and Nationality Act is without merit. These terms are highly prejudicial and create a danger of improperly influencing the jury’s verdict. The Government will still be able to establish the elements of materiality and procurement without using these terms. As previously discussed, Mr. Pierce is free to testify that Defendant’s conviction for bombings render her ineligible to immigrate under the Immigration and Nationality Act. As such, if she had disclosed her 1969 conviction, she could not establish her eligibility for citizenship because she was not lawfully admitted as a permanent resident. Based on the foregoing considerations, Rule 403 of the Federal Rules of Evidence preclude the admission of the terms “terrorist,” terrorist group” and “terrorist activity” and Defendant’s Motion is granted.” (In a separate footnote to one of the other rulings, the Court noted that the defense also could not refer to herself as a freedom fighter.)

Odeh has requested a delay of the trial. As of this writing, there has been no ruling on that.

The mainstream media is focusing on the bar of the terms “terrorist” and terrorism,” but as demonstrated above, that ruling is meaningless.

All in all, these rulings are devastating to the defense. The government now only needs to introduce evidence of her convictions in Israel and her application in which those convictions were not disclosed. The defense cannot counter with claims that the convictions were wrongful, or that she suffered any form of PTSD as a result of her alleged coercion.

Couple this with protections the Court has put in place to protect jurors from influence by pro-Palestinian activists, and there doesn’t seem to be any viable defense.

But that’s what they said about O.J. Simpson.

Rasmieh Odeh Case – Order Granting Govt Motion for Reconsideration and Denying Def's Offer of Proof (1…

Rasmieh Odeh Case – Order Denying Defendant's Motion for Jury Questionnaire (2)

Rasmieh Odeh Case – Order Denying Defendant's Motion to Exclude Evidence Etc (4)

[Featured Image: Rasmieh Odeh at earlier arraignment before Judge Paul Borman, who recused himself.]

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Comments

This is no Judge Ito. He’s not gonna put up with any playing.

    The OJ case is notable precisely because it was so bizarre. And, almost 20 years ago.

    Sure, there are plenty of feckless and idiot judges (just ask Mark Steyn).

    Sure, one can never be certain a jury isn’t going to go clear off the rails, achieve escape velocity, and visit Betelgeuse.

    It happens.

    But it doesn’t happen all THAT often.

    And as Rags notes, this judge seems to have his gear strapped on tight.

    –Andrew, @LawSelfDefense

      Ragspierre in reply to Andrew Branca. | October 27, 2014 at 5:17 pm

      I watch Ito totally lose control of his courtroom and that case.

      He’s largely culpable, IMNHO, for that debacle. The prosecutors, too. I don’t blame the defense for doing their job and taking advantage. I wouldn’t, but that’s me.

Guess this is something that gets to me about this Judge:
“The Court of course agrees that confessions obtained through the use of torture and rape are antithetical to the concepts of fairness, due process and basic human rights. Moreover, the Court accepts as credible Defendant’s claims of torture and is not unaffected by the inhumane circumstances of her detention in the West Bank.”

    Gremlin1974 in reply to Tyrconnell. | October 27, 2014 at 7:26 pm

    Do you somehow disagree with what the Judge said? I don’t understand your comment. If coercion was used then of course it was wrong, but that isn’t the issue before this Judge.

    Frankly, I am more concerned with no being able to call a duck a duck. If someone is a terrorist that isn’t prejudicial its just honest.

    Ragspierre in reply to Tyrconnell. | October 27, 2014 at 7:43 pm

    It is a canon of the law that a party’s pleadings are assumed by the court to be credible.

    That just makes sense, if you think about it. The court has no business making judgments until the evidence has been placed before it. So the court is to take all pleadings at face value. Unless…as in summary judgment…it isn’t.

    See…? This is why lawyers go to law school.

    HEH!

      Tyrconnell in reply to Ragspierre. | October 28, 2014 at 3:04 am

      Okay, not having much experience in court proceedings, if it’s normal for to call all pleadings as credible, I can now accept that this judge was not actually agreeing with the accusation that the Israelis raped this woman to get her confession. Thank you for the knowledge, the day is not wasted.

    It’s just a platitude. It’s irrelevant to the case and means nothing.

    The question at hand is did she or did she not lie on the application about her conviction? If she was convicted, she was required by law to disclose that conviction.

    Failure to disclose that conviction would qualify as lying on the application.

    In addition, she KNOWINGLY failed to disclose this conviction. It wasn’t like she was out of the country and not present for her own trial. She knew she had a conviction.

    Seems pretty much open and shut to me. They have her application. They have records of her conviction. She didn’t disclose the conviction on her application. Guilty. Nullify it all and kick her out of the country. Preferably somewhere far away and that’s under sharia law.

      platypus in reply to TB. | October 28, 2014 at 12:17 am

      In cases like this, I wish the entire cost of the prosecution could be dumped onto the defendant for forcing a trial in which the outcome could only be conviction. Constitutional rights, in my view, are not license to abuse the system. Until we authorize jury nullification, cases like this have no business being taken to a jury.

      Yeah, I know I’m being dreamy. Better here than in a courtroom.

      Paul In Sweden in reply to TB. | October 28, 2014 at 2:31 am

      Convicted wrongly or not, she served ten years in prison on a life sentence. That is something that required to be disclosed and is not something that could have been accidentally omitted.

Paul In Sweden | October 28, 2014 at 1:53 am

The Popular Front for the Liberation of Palestine (PFLP)is designated as a terrorist group by the USA(POTUS CLINTON Executive Order 01/24/95), Canada & the EU. The indictment charges Rasmieh Odeh with being a member of the PFLP which specifically denies admission under the Terrorism-Related Inadmissibility Grounds (TRIG) INA section 212, codified as Title 8 of the U.S. Code, section 1182, but the Court ruled that the government may not use the words “terrorist” or “terrorism” as those terms are prejudicial.

It seems to me that if the indictment is specifically charging prior membership in a designated terrorist organization that ‘Terrorism’ is material to the case. Would the court decree that during a drug case that drugs are prohibited from being mentioned? Can we have a murder trial where the word murder is prohibited? O_o

There has to be some kind of distinction between material elements of the case and the court’s concept of ‘prejudicial’.

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