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Court orders Rasmea Odeh to undergo mental exam in immigration fraud case

Court orders Rasmea Odeh to undergo mental exam in immigration fraud case

Claims PTSD caused her to give false answers on immigration forms as to prior conviction for terrorist bombing and murder.

Rasmea Odeh is the Palestinian terrorist group member convicted of the 1969 supermarket bombing in Jerusalem that killed two Hebrew University students, Edward Joffe and Leon Kanner.

[Graves of Edward Joffe and Leon Kanner, Jerusalem]

[Graves of Edward Joffe and Leon Kanner Jerusalem][Photo by William Jacobson]

Rasmea was released in a prisoner exchange in 1979 for an Israeli soldier captured in Lebanon.

Rasmea eventually made her way to the U.S., where she lied on both her visa and naturalization applications, by falsely stating that she never was convicted of a crime or served time in prison. She told other lies as well, such as not disclosing the time she spent in Lebanon after release from Israeli prison, or that she was a military member of the terrorist Popular Front for the Liberation of Palestine.

Rasmea became a U.S. citizen in 2004 on the basis of those lies.

Rasmea was convicted of immigration fraud in federal court in Detroit in November 2014, sentenced to 18 months in prison and ordered deported after release from prison.

Rasmea has become a hero to the anti-Israel movement in the U.S., which falsely claims she confessed to the supermarket bombing only after 25 days of horrific sexual torture. In fact, the records show she confessed the day after arrest, there was substantial corroborating evidence, and she received a trial that an observer from the International Red Cross termed fair. Rasmea’s main co-conspirator has said in a video interview decades later that Rasmea was the mastermind.

Rasmea also has been actively promoting the anti-Israel agenda of BDS activists like Kristian Davis Bailey and others who seek to hijack the Black Lives Matter movement and turn it into a weapon against Israel, If you are surprised #BlackLivesMatter joined war on Israel, you haven’t been paying attention:

https://www.facebook.com/sjp.loyola/photos/gm.849851951794529/888919504557554/?type=3&theater

[Rasmea Odeh and Kristian Davis Bailey, Loyola SJP Event Poster, via Facebook]

Rasmea appealed her conviction, claiming the trial court improperly refused to hold a hearing on whether Rasmea could call an expert witness to testify that Rasmea suffered from PTSD based upon alleged torture by Israelis decades earlier. The theory advanced was that the PTSD caused Rasmea not to understand the simple questions about whether she “EVER” (bold, caps in original immigration form) had been convicted or imprisoned.

The Appeals Court sent the case back to the trial court to hold such a hearing. If the trial court determines that the expert testimony does not pass the stringent federal test for expert testimony, then Rasmea’s conviction stands. If the trial court allows the testimony, the conviction will be vacated and a new trial will be held in January 2017.

The trial court will hold the hearing on expert testimony on November 29, 2016. In advance of that, the prosecution filed a motion to have its own expert conduct a mental examination of Rasmea, as I reported:

Initially the court had set September 22 as the date for argument on the motion for mental examination.

However, on August 29 the court issued a ruling granting the motion without need for court argument. (Full embed at bottom of post.)

The heart of the court ruling was that Rasmea’s legal counsel was confused as to the legal standard for ordering a mental examination, on grounds similar to what I had written in my prior post:

Defendant conflates two different sections of Rule 12.2 to make her argument. Rule 12.2(c)(1) is silent about the timing of the court-ordered examination. Rather, Rule 12.2(c)(1) “leaves to the court the determination of what procedures should be used for a court-ordered examination of the defendant’s mental condition.” Fed. R. Crim. P. 12.2 (Advisory Committee Notes, 2002 Amendments). Additionally, waiting to conduct the mental examination is impractical since it will delay the trial proceedings, something Rule 12.2 sought to avoid. Id. (1983 Amendments) (noting that advance disclosure to the government that the defendant intends to introduce “expert testimony concerning his mental condition . . . will serve to permit adequate pretrial preparation, to prevent surprise at trial, and to avoid the necessity of delays during trial.”)

Defendant’s reliance on subsection (c)(4) is misplaced because that subsection of Rule 12.2 deals with Fifth Amendment issues. In any event, Rule 12.2(c)(4) does not state that it only applies to trial. Rule 12.2(c)(4) states that a defendant’s statements during a court-ordered mental examination cannot be admitted against the defendant in “any criminal proceeding” unless the defendant has “introduced” mental health evidence in the first instance. Fed. R. Crim. P. 12.2(c)(4)(emphasis supplied). Any criminal proceeding includes pretrial proceedings, including those addressing Daubert challenges. Moreover, Defendant has already “introduced” evidence of her mental state by introducing Dr. Fabri’s testimony during an earlier pre-trial proceeding.

The court also rejected the claim that such an examination would violate Rasmea’s 5th Amendment privilege against self-incrimination:

Defendant also argues that examination by the Government will violate her Fifth Amendment rights. This argument has been rejected by the Supreme Court in Kansas v. Cheever, 134 S.Ct. 596 (2013). In Cheever, the Supreme Court held that a defendant does not have a Fifth Amendment right to preclude the government from
introducing a psychological examination to rebut the defendant’s contention that a mental defect prevented her from committing the crime. Id. at 601. “Any other rule would undermine the adversarial process,” and would allow the defendant “through an expert operating as a proxy” to provide a “one-sided and potentially inaccurate view of his mental state at the time of the alleged crime.” Id. The Supreme Court emphasized that this holding was in harmony “with the principle that when a defendant chooses to testify in a criminal case, the Fifth Amendment does not allow him to refuse to answer related questions on cross-examination.” Id.

Here, Defendant has filed a Notice of Intent to introduce mental health evidence on the question of guilt, and has already introduced Dr. Fabri’s testimony on October 21, 2014. Defendant has therefore placed Dr. Fabri’s opinions, which are based solely on Defendant’s statements-directly at issue. The Fifth Amendment is not implicated under the circumstances present here.

The Court also rejected the argument that it would be too traumatic for Rasmea to be examined by the government:

Lastly, Defendant’s assertion that requiring her to be examined by a Government witness will aggravate her symptoms is belied by the numerous occasions Defendant has been able to discuss her history in Jerusalem in the media and elsewhere. Additionally, Defendant was able to be examined by Dr. Fabri during six sessions, totaling eighteen hours in length.

The Court ordered the following:

The examination shall not exceed eighteen hours in length. The parties shall agree on the amount of days–not less than two and up to six-for the entire examination. The examination shall take place at the U.S. Attorney’s Office in Chicago or another suitable location near Defendant’s home in Chicago.

This case is on track now for the November 29 hearing on whether Rasmea gets to present PTSD expert testimony relating to the questionnaire answers. If the court rejects the proposed expert testimony as not meeting the legal standards, Rasema’s conviction stands; if the court allows the expert testimony, there will be a new trial in January.

The expert testimony should not be allowed regardless of the mental examination. I’ve read the expert’s pretrial testimony, and even at face value it doesn’t meet the standard required. The expert does not say that PTSD caused Rasmea not to understand the questions on the immigration forms, or that Rasmea blocked out the memory. All the expert says is that it may have contributed — such speculation is not of sufficient scientific reliability. I’ll have more on this as we approach the November 29 hearing on whether the expert can testify.

——————–

Rasmieh Odeh Case – Court Order for Mental Examination 8-29-2016 by Legal Insurrection on Scribd

[Featured image: Rasmea Odeh dancing in aisle of Rasmea support group bus after sentencing in March 2015]

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Comments

I fail to see why she’s pleading (effectively) insanity. If she is declared crazy, she was not competent to fill out the immigration papers and will be stripped of US citizenship and be sent back. If she’s declared sane, she committed the crime, she will/has served the time, will be stripped of US citizenship and sent back.

The trial should take all of about five minutes, giving her plenty of time to catch her flight (in handcuffs) back to where she doesn’t want to go. (Then again, this is probably one of many reasons I’m not a lawyer)

    4th armored div in reply to georgfelis. | August 31, 2016 at 11:02 pm

    you forget she ‘only’ killed Jews – to the obama/clinton/kerry what’s the big deal?

    Milhouse in reply to georgfelis. | September 1, 2016 at 2:59 am

    If she is declared crazy, she was not competent to fill out the immigration papers and will be stripped of US citizenship and be sent back.

    Where on earth did you get that idea?

I for one am perfectly willing to stipulate that Odeh has a mental defect; she has no problems at all in planning and carrying out a bombing designed to cause death and serious bodily injury to a random group of total strangers. Mentally stable people don’t do that sort of thing.

However, her mental aberration could not have caused her to somehow fail to understand the meaning of the word EVER. (It does seem to be responsible for her belief that continually insisting on a preposterous torture story will make it true.)

Has PTSD been a successful defense for anything? I don’t remember it if was, but I don’t remember lots of things.

    Milhouse in reply to Old0311. | September 1, 2016 at 3:02 am

    She’s not using it as a defense, she’s using it as an explanation for how she could have so badly misunderstood the question. If the court is gullible enough to accept that she did misunderstand the question, then it would follow that her answer to that imagined question was truthful and she committed no crime.

The lesson:

Once you have them locked up where they belong …

… keep them there.

    Milhouse in reply to tom swift. | September 1, 2016 at 3:03 am

    Yes, this is all Israel’s fault for letting her out in the first place.

      Arminius in reply to Milhouse. | September 1, 2016 at 11:19 am

      I’m not going to suggest it’s Israel’s fault for letting her out in the first place. But Israel needs to rethink the death penalty. I don’t intend my moral reasoning, which is informed by the catechism of the Catholic church, to be dispositive. But since it is derived from a shared root you should at least consider it. In our Bible it is Leviticus 19:18. I don’t know how it would be indexed in the Tanakh.

      “You shall not take vengeance or bear a grudge against the sons of your own people, but you shall love your neighbor as yourself: I am the Lord.”

      One can only legitimately use deadly force against an unjust attacker in defense of one’s own life or in defense of another’s. And then only if a lower level of force won’t suffice. Because love for one’s self is a fundamental moral principle. Really, when you think about it, we’re commanded to do so. Because if you don’t love yourself, and you therefore won’t preserve your own life, you can’t fulfill the commandment to love your neighbor.

      Building on this, if you’re in a position of authority where you are responsible for defending the lives of others, the use of deadly force goes from being a right to a grave duty. This has obvious military/national defense applications (I’m tempted to go off on a tangent on the immorality of Barack Obama who as President and CinC has the grave duty of preferring and protecting American lives but instead endangers American lives by preferring the lives of others over those he has a duty to prefer as he demonstrates when he uses any flimsy excuse to release GITMO detainees thus replenishing the enemy in the field or by importing “refugees” which we know will contain a significant population of terrorists or by knowingly funding Iranian terrorism, but I shall manfully resist), but it also applies to how you treat convicted killers like Rasmea Odeh. Authorities have a grave duty to take whatever necessary measures to render the unjust attacker harmless. Under normal US circumstances the main consideration is defending the lives of guards and other convicts. Some people will kill again, even in prison.

      Israeli prisons and increasingly American prisons are full of terrorists, unjust attackers, who will kill again if given the chance. And the fact that Rasmea Odeh is out walking around free is prima facie evidence that you can’t render them harmless by locking them up. Even under the strictest conditions.

      Every time Rasmea Odeh holds some defiant anti-Israel demonstration or press conference, we don’t to look any further for evidence that incarcerating such people isn’t sufficient to render such people harmless. Barack Obama will never do it; I’ve been saying since he was a candidate in 2008 that he only wanted to be president over his enemies to punish them (he’s made several Freudian slips and admitted as much, and the Scandi leftists understood the same thing so they gave him a preemptive “peace prize”) and help his friends out (look at how he is essentially Tehran’s agent and attorney for further proof).

      But I’d expect a serious leader like Netanyahu, and hopefully any Israeli PM to seriously consider the only measure that can render these terrorists harmless. I’m not saying kill them all. Some of them are just kids. But others sit in the courtroom smirking, clearly proud of what they’ve done. Those need to be executed for the common good. And that’s the only justification for the death penalty.

      The death penalty may or may not have beneficial secondary effects such as deterrence. Which is all to the good, but not a consideration. If there is no other way to defend the community from killers, then authorities have a moral duty to resort to it.

      Ragspierre in reply to Milhouse. | September 1, 2016 at 12:22 pm

      The recidivism rate for those against whom the death penalty is applied…

      zero.

This isn’t going off topic, as Rasmeah Odeh chose to violate the Law Of Armed Conflict (LOAC) when she committed her crimes. For which she should have been decisively punished. So, a little on the LOAC.

The four guiding principles are Distinction. Military or naval forces must clearly distinguish themselves from the civilian population. Proportionality, which despite what the Joooo haters would have you believe does not mean if the Palestinian brings a knife to the intifada, the Israeli can’t use his pistol. It means that that one can only use the amount of force necessary to gain the intended military advantage. This can involve a shocking amount of force. But if it is only the sufficient amount of force, no matter how much damage it causes, it is lawful. Some Nazi generals were acquitted of some of their war crimes because even thought they caused thousands of casualties, the amount of force they applied was no more than necessary to achieve their objective. Then there’s military necessity. As Napoleon said, “[E]very injury done to the enemy, even though permitted by the rules, is excusable only so far as it is absolutely necessary; everything beyond that is criminal.” And finally, there is the principle that one can not cause unnecessary suffering.

We in the US haven’t been flawless in observing these principles, but then who has? And even our most cruel enemies have at times scrupulously observed the rules. I’m reminded of the Battle of Leyte Gulf (23–26 October 1944). The skipper of the IJN cruiser TONE, CAPT Haruo Mayuzumi, was shelling the fantail of the USS GAMBIER BAY. He was trying to put the engines out of action. But then he noticed American sailors gathering there to abandon ship. So he ordered cease fire, and then redirected his fire

    davod in reply to Arminius. | September 2, 2016 at 3:28 am

    Arminius’s comments regarding the Law of Armed Conflict (LOAC) may well be why so many argue for these actions actions to be treated under criminal law. If they are regular crimes then maybe LOAC regular rules don’t apply.

Skynet again. It’s been nothing but trouble since it became self-aware.

So he redirected his fire to the fo’c’sle, where he couldn’t see any men. He was out to sink ships, which even his enemies (us at the time) would have admitted were legitimate targets for belligerents. He wasn’t bloodthirsty though. There were American commanders, on the other hand, who would have poured more fire into the fantail of a Japanese warship precisely because that’s where the sailors were.

Basically, I’m a fan of adhering to the requirements of the LOAC, and of those who do. That said, I think Israel overdoes it. It is possible to raise the bar too high, and this becomes a problem. Not just for Israel but for everyone.

Israel isn’t going to get credit for being so considerate. The leftist BDS types who think it’s a war crime for the “filthy Jooooz” to bleat in protest on the way to the slaughterhouse amounts to a war crime aren’t going to be impressed. Israel should not act as if it has some special obligation or extra duty to respect the lives of its enemies. Because that, in my opinion, only reinforces the prejudices of the Joooo haters. Like, they’re different. Instead, the Israelis should insist on enforcing their rights under the LOAC. Including, most especially, their right of retribution. Yes, the LOAC specifically provides for retribution. If your enemy systematically ignores and violates the laws of war, you can treat them roughly and do things that would otherwise be illegal (there are still rules,though) in response. To knock some sense into their heads. The LOAC allows for the fact you can’t let Hamas get away with their crap.

A secondary consideration is, how shall I put this, it makes the rest of us look bad. So to speak. Which is sort of a flippant way to put it. So I’ll have to explain.

Every professional military and naval observer of the IDF has recognized that the IDF goes above and beyond when it comes to observing international humanitarian law. But the concern for the rest of us is, we’ll never fight under the same circumstances. Israel effectively has the phone number of every resident of Gaza. They’ll call the residents and warn them, or “knock on the door” with a small explosive charge to the roof.

Israel is giving a lot of people the impression that sort of thing is what a military is required to do. No, it’s not. In fact, in just about every other situation that sort of scrupulous concern for the lives on the other side is impossible.

The way Israel fights wars makes me think of someone who believes that since the IRS makes you keep records for seven years, they’ll keep records for 14. No! No!

Cut that out, Israel. Observe the LOAC, definitely. But you’re exceeding the requirements by way, way, to much and it isn’t healthy for anyone.

    davod in reply to Arminius. | September 2, 2016 at 6:17 am

    The US has a lot more lawyers working in the military. So many that a few years ago, the legal minds in the Pentagon proposed that the number had increased so much that the head of military legal should get another star.

    I know the US is moving to the legalistic (I know everything is based on the law). What is the US DOD time lag when a jet is involved in a one on one with an enemy jet? What about when troops are fired at?

    As embarrassing as the swift boats being taken by Iran was, how much of the sailors reaction was really due to the, what will the lawyers say, instead of instantly defending the boats.

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