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.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: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:
- Prosecutors seek mental examination of Rasmea Odeh
- Convicted bomber Rasmea Odeh opposes mental examination in immigration fraud case
- September showdown over convicted bomber Rasmea Odeh’s mental exam in immigration case
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.
[Featured image: Rasmea Odeh dancing in aisle of Rasmea support group bus after sentencing in March 2015]DONATE
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