Motion to modify PTSD mental exam based on apparent misrepresentation to the court.
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 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.
PTSD Defense and Gov’t Mental Examination
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 not that PTSD caused her to block out memory — that theory is contradicted by her own trial testimony that she remembered the convictions and prison but didn’t think the questions called for that information based on sequence and wording.
Rather, the current claims is 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 on whether the expert could testify. 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, which the court granted, 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
- Court orders Rasmea Odeh to undergo mental exam in immigration fraud case
Defense Motion to Modify Mental Examination
Rasmea’s attorneys then filed a motion to modify the mental examination based on a clear and unequivocal representation to the Court that Rasmea never before had discussed her alleged torture with anyone other than Rasmea’s expert witness in the case, and even then under controlled circumstances. From this, the defense argued that to subject Rasmea to a government exam would “trigger” her PTSD.
Here is the key portion of Rasmea’s motion to modify [note: Dr. Fabri is Rasmea’s expert][emphasis added]:
Further, the Defense strongly protests the cynically dismissive, false assertion by the Government— accepted whole cloth by the Court – that the Defendant has freely discussed her torture in the past, and thus is not at risk of ‘retraumatization’ or other, additional harm from such an examination. In fact, the statements cited in the Government’s Reply referred to the bombing case against her in Israel, not her torture. While Ms. Odeh did give an interview shortly after her release from prison almost 40 year ago, she did not speak in detail about her torture, and not at all about the sexual assaults. Ms. Odeh has discussed the specific details of her torture, and specifically about the sexual assaults only with Dr. Fabri.
Dr. Fabri now advises the Court, in her attached Affidavit that the risk of Ms. Odeh suffering substantial further mental and emotional trauma from another examination—particularly from an adversarial figm·e, where the need for safety arid trust will be fundamentally important—is very real….
Dr. Fabri is the first and only one to whom Ms. Odeh has related the details of her prolonged torture including the sexual assaults. And, as Dr. Fabri states, there was a substantial period of trust-building before the examination could begin, and repeated emotional reactions by Ms. Odeh that required breaks and even suspension of one of the sessions….
The problem is, as I wrote, U.N. records contradict key Rasmea Odeh claim in motion to prevent mental examination:
That full report contains a recitation of Rasmea’s extensive and detailed testimony, starting at paragraph 288 and going on through paragraph 293, and the Medical Exam notes are in Appendix III.
Thus, unless the U.N. Report is fabricated or false as to Rasmea having testified, which seems unlikely, then the U.N. records squarely contradict the key representation in Rasmea’s motion that:
While Ms. Odeh did give an interview shortly after her release from prison almost 40 year ago, she did not speak in detail about her torture, and not at all about the sexual assaults. Ms. Odeh has discussed the specific details of her torture, and specifically about the sexual assaults only with Dr. Fabri.
Even if the U.N. testimony was in writing (there’s no indication of that), it still would be contrary to the defense’s assertion.
It will be interesting to see how the court reacts, since defense counsel was very pejorative towards the judge in its papers, portraying him as a dupe who mindlessly accepted the government’s representations.
Gov’t Opposition Details “Completely False” Defense Representation to Court
The defendant claims that her expert, Dr. Fabri, “is the first and only one to whom Ms. Odeh has related the details of her prolonged torture including the sexual assault.” Id. at PgID 2786. The defendant says that she was only able to discuss the details of her alleged torture with Dr. Fabri after “a substantial period of trust-building before the examination,” and even then, the defendant says she had “repeated emotional reactions” and “required breaks” and even a suspension of one of the sessions with Dr. Fabri. Id.
The defendant’s claims, however, are contradicted by the fact that she has publicly discussed the details of her alleged torture, including details about alleged sexual abuse, on numerous occasions over the years without having the types of extreme emotional reactions she now claims are inevitable. While the defendant has changed the details surrounding her alleged torture over the years, one thing has remained the same: the defendant’s willingness to speak about these allegations publicly – often in front of men and other people that she does not
The government listed several examples of Rasmea speaking publicly about her alleged torture in addition to the UN testimony, including her original trial testimony in Israel in 1970, a 1979 interview with the Jerusalem Post, a 1980 interview with Journal of Palestine Studies, and an interview for a 2004 documentary “Women in Struggle.”
The government concludes (emphasis added):
What all of these examples show is that the defendant’s claim that “Dr. Fabri is the first and only one to whom Ms. Odeh has related the details of her prolonged torture including the sexual assaults” is completely false. Rather, the defendant has been able to discuss her alleged torture with a variety of individuals (including males), and in a variety of settings, over the course of many years. In addition, these examples show that the defendant was able to discuss her alleged torture without suffering any ill effects.
In short, it is hard to see how defense counsel made the representation that is the heart of its motion to modify in good faith. And even worse, how defense counsel would be so pejorative towards the Judge in asserting (emphasis added):
Further, the Defense strongly protests the cynically dismissive, false assertion by the Government— accepted whole cloth by the Court – that the Defendant has freely discussed her torture in the past ….
Although I doubt the Judge Drain will do so, he should hold a hearing on whether defense counsel had a reasonable basis for making the representation at the heart of the motion to modify.
Preview of Likely Prosecution Response to Torture Allegations
Whether Rasmea actually was tortured and if that torture forced the confession has not been litigated in the case. That may change if Judge Drain allows the expert to testify. Indeed, it’s my theory that the PTSD defense is raised precisely as part of a jury nullification strategy, to have jury sympathy override the obvious absurdity of the claim that Rasmea didn’t understand the immigration questions.
As I’ve pointed out many times, Rasmea’s story that she confessed only after 25 days of torture has an obvious factual problem in that she actually confessed the day after arrest. The prosecution opposition to the motion to modify gives a hint at other ways it may challenge Rasmea’s story if it gets to that.
First, in the opposition the prosecution asserts that “the defendant has changed the details surrounding her alleged torture over the years…” (Opposition at 5-6).
Additionally, in a footnote, the prosecution asserts:
1 The defendant’s claim that Israeli officials tried to force her father to have sex with her is contradicted by her father himself. According to a U.S. diplomatic cable, following the arrest of the defendant’s father (who was a United States citizen), a U.S. consular official met with, and interviewed, the defendant’s father. According to the U.S. consular official, the defendant’s father “complains of uncomfortable, overcrowded jail conditions, but he apparently receiving no rpt [repeat] no worse than standard treatment afforded majority detainees at Jerusalem jail.” (R. 161: Gov’t Sent. Memo., at PgID 1726).
The previously filed government sentencing memorandum gives more detail of the likely line of attack on Rasmea’s credibility, including her central military role in the Popular Front for the Liberation of Palestine:
And finally, there can be no doubt of defendant Odeh’s valued membership and participation in the PFLP, a designated terrorist organization. The PFLP, which engaged in spectacular acts of terrorism in the late 1960s and early 1970s, named at least two of the units involved in such terrorism the “Task Force Rasmieh
In 1969, a PFLP terrorist named Leila Khaled and others hijacked a TWA plane and ordered it to Damascus, Syria. See http://electronicintifada.net/blogs/patrick-strickland/palestinian-resistance-icon-leila-khaled-tour-south-africa; see also http://www.nytimes.com/movies/movie/353779/Leila-Khaled-Hijacker/
overview. On September 6, 1970, the PFLP conducted four successful and one unsuccessful simultaneous hijackings of aircraft, diverting three aircraft to a remote airstrip called Dawson’s Field in the Jordanian desert. The failed hijacking was Leila Khaled’s second attempt to hijack airliners, that time an Israeli El Al plane. After the hijacking was foiled, the plane landed in London, and Leila Khaled was arrested. See http://www.pbs.org/wgbh/amex/hijacked/maps/map_txt_01.html. Upon her arrest, she reportedly stated to British authorities “I am the leader of the hijack. My name is Leila Khaled and a member of the PFLP and from the unit of Rasmieh Odeh, a Palestinian woman prisoner.” See https://adonis49.wordpress.com/2011/08/03/heading-to-haifa-want-to-see-myhome-up-close-who-is-leila-khaled/….
PFLP spokesmen have made clear that the coordinated hijackings were undertaken to obtain hostages for use in bartering the release of PFLP prisoners held in Israel, such as Rasmieh Odeh. See https://www.youtube.com/watch?v=vH 6e1FNSUxo, at 13:10-13:25. Thus, it is not clear if the PFLP referred to the hijackers as “Task Force Rasmieh Odeh” because she was the principal target whose release was sought or if it was in honor of her role in bombing the Supersol the previous year. Either way, it is clear that she held an exalted role within the organization, and it also is clear that the PFLP requested her release in 1979 when she was freed in a prisoner exchange.
And if any further emphasis need be placed on defendant’s history, it is provided by the final scene in Tell Your Tale Little Bird. See www.youtube.com/watch?v=wdkoxBjKM1Q at 1:28:25-1:30:08. In that scene, set to classical music, admitted terrorists Leila Khaled, Aisha Odeh, Rasheda Obideh and others sit down
with defendant Rasmieh Odeh for cookies and coffee in what can only be referred to as a terrorist reunion to be filmed for posterity. Thus, defendant Odeh began having such meetings with unrepentant terrorists not later than 1993, when the film was made, two years before she immigrated to the United States. She continued to have such meetings at least until 2004, when Women in Struggle was made, after she had lived in the United States for many years and during which time she applied for and became a United States citizen.
If there is a new trial, and if the new trial turns into a credibility contest over Rasmea’s alleged forced confession and torture, then the case will have gone completely off on a legal tangent as to whether Rasmea justly was convicted in Israel. That should not be the issue — whether rightly or wrongly convicted and imprisoned in Israel, that conviction and imprisonment were facts that Rasmea needed to disclose in response to simple questions on the immigration forms.
We will continue to monitor and report on the legal developments.
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