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Rasmea Odeh Appeal has fundamental inconsistency

Rasmea Odeh Appeal has fundamental inconsistency

which even calling the Israelis “Nazis” in her Brief can’t overcome.

http://youtu.be/afK-AM-XDE8

Rasmieh (Rasmea) Odeh is the convicted bomber of the SuperSol supermarket in “West” Jerusalem in 1969 which killed Edward Joffe and Leon Kanner.   The evidence of Rasmea’s guilt was and is overwhelming, and has grown more so over the years.

See my prior posts on the case:

Rasmea had a lawyer in the Israeli trial, and engaged in extensive pre-trial litigation and trial that stretched over the better part of a year. An International Red Cross observer termed the trial to be fair.

While Rasmea would claim that the conviction was the result of her confession coerced through 25 days of sexual torture, in fact Rasmea confessed the day after arrest and there was evidence independent of the confession. Moreoever, years later, after they all were out of prison, Rasmea’s main co-conspirator would credit Rasmea with being the mastermind.

Rasmea was sentence to life in prison, then was released in 1979 in a mass prisoner exchange for an Israeli soldier captured in Lebanon.  She eventually made her way to the U.S. in the 1990s

In November 2014, Rasmea was convicted in federal court in Detroit of lying on her immigration and naturalization forms, by falsely denying she ever had been arrested, convicted or imprisoned. Rasmea was sentenced to 18 months in prison and ordered deported. She is free on bond pending appeal.

Rasmea is being treated as a hero of the anti-Israel community in the U.S., with live stream fundraisers and celebrations.

Rasmea Odeh Angela Davis Event Poster

She also has latched onto the Black Lives Matter movement to help generate support for her. Here she is with her lead attorney, Michael Deutsch:

Rasmea’s appeal brief was filed on June 9.  (Full copy embedded at bottom of post.)

The Brief alleges three main grounds for appeal:  (1) the Court deprived her of her right to present a full defense by refusing to allow her to testify that the Israeli conviction was obtained through torture and to call an expert to testify that PTSD caused her to block out the Israeli conviction and prison time when interpreting the term “EVER” on the questionnaires; (2) the Court allowed in unduly prejudicial Israeli military court documents which disclosed the bombing conviction and the names of the two people Rasmea killed; and (3) the prison sentence was unjust.

Mixed in with these legal arguments is the type of noxious rhetoric we have come to expect from Rasmea’s attorneys and supporters. In the Brief they compare the Israeli military tribunal — which even the Red Cross said gave Rasmea a fair trial — to “a Nazi court operating in occupied France that convicted partisans resisting occupation.” (Brief, at 36)

I don’t predict how courts will rule, particularly not appeals courts. There are some issues that are legitimate appeals issues, though weak, such as the claim that revealing the nature of Rasmea’s Israeli conviction and the names of Rasmea’s victims was unduly prejudicial; and that the court applied the wrong standard of intent for the crime. I’m not expecting her to win on those, but at least they are the types of issues one would expect to be raised on appeal.

But there is a fundamental inconsistency in the appeal that should taint, if not completely eviscerate, Rasmea’s legal arguments. Rasmea’s appeal takes the legally and factually inconsistent positions that Rasmea had an actual, conscious understanding of the word “EVER” that limited the time scope to her time in the United States in the context of other questions on the form; and separately, that PTSD from the alleged torture caused her to block out the Israeli conviction and imprisonment.

Here is an excerpt from the Brief (at p. 7) on the issue of the word “EVER”:

Ms. Odeh did not contest that she had been arrested, convicted and imprisoned by the Israeli military in 1969, at trial or otherwise. Rather she testified that she believed at the time that the naturalization questions, coming more than nine years after she began living in the U.S., referred only to her time in the in the United States — where she had no criminal record — and that she never thought about her time in Israel in providing her “No” answers on her form or in the interview. R.E, 182, pp. 116-120, Pg. ID 2364-2368. She also stated that a series of prior questions on the naturalization application which used the words “Ever” and referred to the United States, reinforced her understanding that the later questions,about prior arrests convictions and imprisonment, also referred to the United States, See Exhibit lA, R.E. 186-1 pp. 6-7, Pg. ID 2620-21; (Testimony of Rasmieh Odeh), R.E. 183 pp. 53-54; Pg. ID 2426-27.

She explained that she would not have hesitated to disclose her Israeli conviction and imprisonment if specifically asked, since it was no secret. R.E. 182, p. 120, Pg. ID 2368; R.E. 183 p.21; Pg. ID 2394. The evidence also showed that she had told a Homeland Security Agent in 2013, that no one from Immigration ever asked her about her Israeli imprisonment at the time of her naturalization process. R.E. 183, pp. 18-21, Pg. ID 2391-2394; Testimony of Stephen Webber) R.E. 181 p.91, Pg. ID 2181.

[Note: The trial transcript is not yet publicly available, so I cannot quote from the transcript or verify the page references in the Brief.]

Got that? Rasmea had a conscious understanding of the form based on the wording and sequence of questions, and would not have hesitated to disclose the conviction and imprisonment if she thought it was called for by the questions.

But, the second part of the explanation says the opposite, that her PTSD caused her to block all those things out:

Dr. Fabri [the proposed expert] testified, in a Rule 104 hearing, that after extensive interviews and testing, she diagnosed Ms. Odeh as suffering from a chronic post-traumatic stress disorder (PTSD) resulting from torture. Dr. Fabri opined that the disorder could have operated to automatically “filter out” her terrible traumatic experiences in Israel, and cause her to interpret the naturalization questions as way to avoid any thought of her past trauma. (Testimony of Dr. Mary Fabri), R.E. 113, pp 11-16, 38-45, Pg. ID 1165-1170, 1192-1199.

Initially, the lower court ruled that the statute, 18 U. S. C. § 1425, charged a specific intent crime, and ordered the 104 hearing to “ascertain whether Defendant’s expert’s anticipated testimony ‘will support a legally acceptable theory of mens rea. “‘(Order and Ruling of District Court). R.E. 98 pp; 7-15, Pg. ID 982-990. Prior to ruling on the admissibility of Dr. Fabri’ testimony however, the comi reversed his position in response to a government motion for reconsideration, and held that the statute charged a general intent crime, and consequently, as a matter of law, Dr. Fabri could not be permitted to testify. (Order and Ruling of District Court), R.E. 119, pp 1-7 Pg. ID 1252-1258.

So which was it? Rasmea was conscious of the conviction and imprisonment but didn’t think the questions called for disclosure, or she blocked everything out because of PTSD arising from alleged torture more than 25 years earlier? You can’t have it both ways, but Rasmea’s appeal tries to.

This has profound implications for the legal aspects of Rasmea’s appeal. Her own trial testimony negates the claimed need for an expert witness, even assuming there were a legal basis for the expert; Rasmea would have been calling the expert to contradict Rasmea’s own trial testimony. This would render any legal error as to the expert “harmless” and not the basis to overturn the conviction.

There are many other problems with the appeal, such as the claim that it was improper to admit documents from the Israeli military court because such documents were just like Nazi courts according to Rasmea’s attorneys.  But the documents were admitted to prove the fact of conviction and imprisonment, which were undisputed.

Also, there was no need to allow Rasmea to contest the underlying Israeli conviction — the immigration questionnaires did not ask whether she was rightly or justly convicted and imprisoned, only whether she had been convicted or imprisoned. As a factual matter Rasmea was convicted and imprisoned, and needed to disclose it.

In all, the appeals court of necessity must take account of the fundamental inconsistency in Rasmea’s appeal which goes to the heart of her appeal claims as to excluding the supposed expert witness and PTSD evidence.

A legal group that supports anti-Israel BDS and other activists, the Center for Constitutional Rights, has filed a request to file an Amicus Brief supporting the need for expert testimony on PTSD.  That Brief, which appears to be generic and almost devoid of context in this case, is irrelevant for the same reasons — the PTSD evidence would contradict Rasmea’s own trial testimony that she would not have hesitated to reveal the conviction and imprisonment if she thought the questions asked for it.

The government’s brief is due in early July, Rasmea gets a reply by the end of July.  If oral argument is granted, that likely will be in September.

Rasmieh Odeh Case – Defendant's Appeals Brief

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Comments

Sammy Finkelman | June 22, 2015 at 11:55 pm

What’s that famous legal defense joke? First, my client didn’t do it. Secondly, it was unintentional. Third, it’s not against the law. Or is it the way around?

Something of that nature.

    Milhouse in reply to Sammy Finkelman. | June 23, 2015 at 6:49 am

    “She didn’t do it” and “it’s not against the law” are not at all inconsistent. “She didn’t do it” and “it was unintentional” appear to be inconsistent, but they can be argued as alternatives: she has no memory of doing it at all, and thus doesn’t accept the prosecutor’s claim that she did it; but if it is proven that she did it after all, then she avers that she can’t have intended it, or she’d have remembered it.

Sammy Finkelman | June 23, 2015 at 12:08 am

I think with her it goes like this:

First, she didn’t really do the crime. If you say it doesn’t matter whether or not she really did the crime (and by the way the evidence is very strong that she did and that she is lying about the evidence, and furthermore, she admitted it years later more than once) then, she didn’t realize that this was being asked about (never mind that earlier, a defense, rejected by the jury, was that she didn’t fill out the form herself, and the person who did, didn’t know about the conviction. And third, she forgot about it because she had put her imprisonment entirely out of her mind.

Richard “Racehorse” Haynes on defending a dog bite case…

1 My dog doesn’t bite
2 My dog was tied up the night you say you were bitten
3 I don’t believe you really got bit
4 I don’t have a dog…

    Milhouse in reply to CalFed. | June 23, 2015 at 6:54 am

    That’s a perfectly sensible defense, if you substitute “the dog” for “my dog”. The dog in question doesn’t have to be mine for me to know both that it’s not a biter and that it was physically restrained so that it couldn’t have bitten the plaintiff. Nor, even supposing that it were a biter and on the loose, need I believe that the plaintiff was bitten; in fact that needs to be the first thing the plaintiff establishes. But supposing the plaintiff establishes that, contrary to my understanding, the dog did bite him, I’m not liable because it’s not my dog.

      CalFed in reply to Milhouse. | June 24, 2015 at 10:57 am

      “That’s a perfectly sensible defense, if you substitute “the dog” for ‘my dog’. ”

      I suppose if you change a story, it does change the point being made. The point that you make is valid, it just isn’t the point that Haynes was making…

She was “coerced through 25 days of sexual torture?”

The only sexual torture that could surround this ugly lunatic would be being forced to have sex with her.

“Rasmieh (Rasmea) Odeh is the convicted bomber of the SuperSol supermarket in “West” Jerusalem in 1969 which killed Edward Joffe and Leon Kanner.

…Rasmea was sentence to life in prision, then was released in 1979 in a mass prisoner exchange for an Israeli soldier captured in Lebanon.”

Not to go off on a tangent, but this is one of the reasons why I favor the death penalty.

She wasn’t sentenced to life in prison. She was sentenced to ten.

10, 20, 30, or 40 odd years from now I don’t want to be playing the same games over Joker Tsarnaev.

Gremlin1974 | June 23, 2015 at 3:16 am

Wait, wait, wait, but hasn’t this hag made money off of talking about her alleged abuse at the hands of mean old Israel?

She didn’t seem to have trouble remembering it when she was being paid.

Look on the bright side. We haven’t been exposed ad nauseum to the graphic details of those “25 days of sexual torture”. Whether they actually happened or not, I really really don’t want to hear anything about it.

    Milhouse in reply to tom swift. | June 23, 2015 at 6:57 am

    As the prof has pointed out, if they happened it must have been in some world where time runs differently, because here on Earth only one day passed between her arrest and confession.

    dystopia in reply to tom swift. | June 23, 2015 at 8:22 am

    I think the sexual torture claims are to spice up the movie deal: Fifty Shades of Odeh.

You seem to have misunderstood Dr Fabri’s proposed testimony. He would have testified, not that her PTSD caused her to forget her Israeli conviction, but that it caused her “to interpret the naturalization questions as way to avoid any thought of her past trauma”. In other words, although a reasonable person would have understood that “ever” means “ever”, she understood it differently. Fabri would have explained that in this limited sense Odeh was not a reasonable person; that her PTSD made her mind shy away from having to deal with her (supposed) ordeal, by misunderstanding the question. Had the jury heard this testimony, they might have been so gullible as to buy it and acquit her.

    dystopia in reply to Milhouse. | June 23, 2015 at 8:24 am

    Well Mr. Millhouse how do you rate Ms. Odeh’s chances of prevailing on appeal?

      Milhouse in reply to dystopia. | June 24, 2015 at 1:37 am

      Slim, but non-zero. Contra the good professor, her arguments are logically consistent; but they’re not terribly plausible.

Oops. I meant she would have testified.

How come George Soros is still free? He should be sitting in prison too. No doubt that he lied on his immigration form too. He is a convicted felon in France on money laundering charges, yet he gets a free pass.

    Milhouse in reply to Stan25. | June 24, 2015 at 3:14 am

    Um, what? What on earth are you talking about? There is no reason at all to believe Soros lied on his immigration forms. No, he certainly didn’t disclose his (bogus) French conviction, since he is not a time traveler. “Ever” means ever in the past, not fifty years in the future!

I want to know why Israel will release hundreds of convicted murderers in exchange for one of their own and unleash that horror on themselves and the rest of the world. They have a duty to their citizens and the world to maintain the courage of their convictions.

    Ragspierre in reply to Immolate. | June 23, 2015 at 12:50 pm

    I thought at the time it was a monumental mistake.

    History has only vindicated that opinion.

    Milhouse in reply to Immolate. | June 24, 2015 at 3:22 am

    They do it because they’re weak, and can’t resist the pain and cries of the captives’ families. They identify strongly with the soldiers and their families, since any one of them could one day be in the same place, they really do feel their pain, and they don’t have the strength of character to resist doing whatever it takes to relieve that pain, even though they know that they’re only making it infinitely worse.

    And they keep on doing it, over and over again, each time paying the price for the last time they did it. If they hadn’t done the original Rajoub exchange, it’s likely that none of the subsequent exchanges would have been necessary, since the soldiers would never have been captured in the first place.

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