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Appeals Court remands Rasmea Odeh case for expert evidentiary hearing

Appeals Court remands Rasmea Odeh case for expert evidentiary hearing

Depending on evidentiary hearing, conviction may stand or new trial held.

The Sixth Circuit Court of Appeals, in an Opinion released today (full embed at bottom of post), remanded the immigration fraud case of Rasmea Odeh to the District Court on the issue of whether Rasmea should have been permitted to present expert testimony. The Appeals court did not rule such evidence admissible, and did not order a new trial. Rather, the Appeals Court ruled the trial court should have at least held a hearing on the issue of expert testimony.

It is possible the trial court rejects such evidence after hearing under the strict requirements for expert evidence in federal court, in which case the conviction stands. Or after hearing rules the evidence should be admitted, in which case there will be a new trial.

Rasmea was convicted of immigration fraud in federal court in Detroit in November 2014 for failing to disclose her 1970 conviction in Israel for the 1969 bombing of a supermarket, which killed two university students (Edward Joffe and Leon Kanner), and attempted bombing of the British Consulate.

Rasmea contends that she was convicted in Israel solely because of a false confession extracted from her after 25 days of sexual torture. In fact, as we have proven, she confessed just one day after arrest, there was substantial other evidence of her guilt, and even her co-conspirator decades later explained on video that Rasmea was the mastermind. She also received a trial in Israel that an observer from the International Red Cross termed fair.

Rasmea served 10 years in Israeli prison before being released in a prisoner exchange. She then made her way to Jordan and Lebanon before coming to the U.S. in 1994. She was naturalized as a citizen in 2003.

As related to the immigration charge, Rasmea falsely answered “No” to a series of questions on both her visa and naturalization papers as to whether she ever was convicted or imprisoned.

At the immigration fraud trial, Rasmea wanted to offer expert testimony that her torture led to Post Traumatic Stress Disorder such that several decades later she did not properly understand the immigration questions. The trial judge refused even to rule on the issue, finding such proposed expert testimony was categorically precluded as a legal matter.

The Appeals Court held that such categorical exclusion, without even holding a hearing, was improper.

In federal court, expert testimony cannot be presented unless there is a hearing at which the party seeking to introduce the testimony proves that the testimony meets strict standards of scientific validity, and also that the proposed expert is qualified in the subject. The trial court never ruled on such issues, because it never held a hearing. That failure to hold a hearing, and that failure alone, was the basis for the remand.

This outcome, which I don’t think justified, nonetheless was predictable after oral argument last October.

This is not a reversal of the trial conviction, as such. In a carefully worded opinion, the Appeals Court ruled that the trial court should have held the hearing. It is entirely possible that on remand the trial court holds the hearing, and decides to exclude the testimony anyway. In that case, the conviction should stand, because the Appeals Court rejected all other challenges to the conviction. If the trial court finds that the testimony should be admitted, then there likely will be a new trial.

This will, of course, be viewed as a victory by Rasmea and her supporters. But assuming the prosecution pursues the case, the ultimate outcome may very well be that the conviction stands or that Rasmea is reconvicted in a new trial.

The efforts to spin the case by Rasmea supporters as a finding she was not guilty will be intense, so here are some excerpts from the Appeals Court decision to show how narrow the ruling was, and how it did not find that Rasmea did not commit immigration fraud (emphasis added):

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….

Regardless of whether 18 U.S.C. § 1425(a) is a specific or general intent crime, Dr. Fabri’s proffered testimony is relevant to whether Odeh knew that her statements were false. The district court accordingly erred in categorically excluding this testimony….

The district court, however, did not rule on the competence or reliability of this testimony. Indeed, the district court did not tie the exclusion of evidence to a reasonable evidentiary restriction, but to a supposed categorical rule that does not apply. That ruling does not provide a sufficient basis for disallowing Odeh from presenting testimony that negates an element of § 1425(a)….

The district court in this case, after initially concluding that § 1425(a) is a specific ntent crime, conducted an evidentiary hearing on the testimony’s admissibility. Aside from rejecting the categorical exclusion of Dr. Fabri’s testimony under Kimes and Gonyea, we leave the evidentiary decision regarding the admissibility of the testimony to the district court in the first instance….

Odeh’s remaining objections, which concern several evidentiary rulings and the reasonableness of her sentence, do not warrant relief….

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.


Rasmieh Odeh – Appeals Court Opinion 2-25-2016


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The District Court will hold the evidentiary hearing and likely deny the Defense Request. That will result in further appeals to the Sixth Circuit.

One problem with the evidence is that “litigating” a stale claim of 40 year old torture is almost impossible.

    legacyrepublican in reply to sequester. | February 25, 2016 at 2:46 pm

    Hasn’t stopped blacks from arguing for reparations for the torture of being enslaved.

    Gremlin1974 in reply to sequester. | February 25, 2016 at 6:56 pm

    My impression was that it was going back to the trial judge so that the hearing can be held. At the end of which he will still most likely deny the motion and that’s that, until they can find something else to appeal about.

Isn’t it true that even if the Daubert (?) hearing results in the testimony being ruled admissible, the defensed still has to show that no reasonable jury would have found her guilty before they get a new trial?

Or are my standards off?

ugottabekiddinme | February 25, 2016 at 1:05 pm

The cynic in me says Obama will pardon her on his way out the door . . . after all, she’s now a model citizen, she served 10 years in prison, she didn’t understand those tough, arcane immigration questions. This does not “represent our values,” he’ll intone.


    Even pardoned of her crime of lying on the application for citizenship, doesn’t that still preclude her from retaining her illegitimate US Citizenship and leave her subject to being forcefully returned to Lebanon? Just because she would receive a pardon for an illegal act, doesn’t mean that basis behind the illegal act can’t still be used to keep her out of the country (or remove her from same).

    Of course, this assumes the current administration has any interest in deporting her. I’ll bet the next administration does.

Four words in Batchelder’s dissent bother me: “testimony it found credible”. Did the trial court find credible Odeh’s testimony that she’d been tortured? I find that hard to believe. So is Batchelder imagining things? Or is she making them up? She seems convinced that the torture happened, or at least that it’s plausible enough that for appeals purposes Odeh should be entitled to the presumption that it happened, which as we know is just utter bulldust. And this is someone that W Bush considered for the Supreme Court. Did we dodge another bullet there?

    Gremlin1974 in reply to Milhouse. | February 25, 2016 at 6:57 pm

    No in fact the judge ordered them not to bring it up because it was irrelevant to the case, even though they of course did bring it up a couple of times and had to be redirected.

*sigh* This is the United States, and even the vilest of criminals have the full panoply of rights under the law. The clean application of equal rights under the law combined with procedural due process is one of our best traits, and one that can make us uncomfortable, particularly when the bad guys win.

I am sure that the people who support mass murder will celebrate this “victory,” but the concern of the appellate court is limited to the legal questions presented to it. We adhere to our best procedures, and keep our convictions clean.

All that said, the appeals court appears to be giving broad hints that the evidence may be properly excluded on another basis.

I personally find it offensive that a person, who has made a career on telling and re-telling the story of the violent crimes she committed, should be allowed to present evidence that she suddenly forgot the entire basis for her career for the short time it took to fill out an immigration application, and then immediately recovered her memory in order to continue to follow her career.

    Milhouse in reply to Valerie. | February 25, 2016 at 5:46 pm

    She doesn’t claim to have forgotten her conviction, she claims that she misunderstood the question, and she wants to present expert testimony that torture-induced PTSD can do that to a person, make them misconstrue things that an ordinary person would understand clearly, in order to avoid having to invoke the painful memories.

    The appeals court said that since properly understanding the question is an element of the crime, and if she did misunderstand it then she’s innocent, therefore the proposed testimony was relevant and the court should have considered whether to allow it. That seems fair enough.

    The real reason the testimony is irrelevant is that she wasn’t tortured in the first place, but that’s a factual determination that I would think needs to be decided by a jury. And the problem is that if the jury hears her cock and bull story they might be swayed by it.