Drain decided that Odeh would not be allowed to present any evidence about the weeks of torture she endured at Israeli hands that ultimately forced her to sign a confession.
He also ruled against her motion to exclude from the trial the specifics of the accusations Israel made against her and rejected her motion to claim her indictment by the US on immigration fraud charges is the product of selective prosecution.
“By precluding from the trial any mention of torture, the court has gutted the heart of Rasmea’s defense and makes a fair trial impossible,” Odeh’s lead attorney Michael Deutsch told The Electronic Intifada.
Drain granted a government request to submit approximately one hundred documents from the Israeli military court, including her signed confession and information about the 1969 Jerusalem bombings she confessed under torture to participating in.
The prosecution had obtained these documents through a 2011 request under the “Treaty on Mutual Assistance in Criminal Matters” between the US and Israel.
In the only ruling in her favor, the judge decided that the trial will exclude all references to Odeh as a “terrorist” or that she was involved in “terrorist activities,” as Drain explained it would prejudice the jury.
Torture claims “credible,” judge says
Despite writing that he found Odeh’s claims of torture to be “credible,” Drain is not permitting any evidence of it into trial. Moreover, heeding a motion by the government, the judge has reversed a previous decision that the law requires a person to have had “specific intent” to defraud the government, ruling it now a “general intent” crime.
The significance of this is that the defense may not call on their expert witness to testify and the prosecution has a significantly lower burden of proof.
Mary Fabri, an expert on torture, had submitted an affidavit for the defense that explained Odeh suffers from post traumatic stress disorder (PTSD) as a result of her brutal torture, which may very well have affected her state of mind when she allegedly failed to disclose her military court conviction on her citizenship application.
At the beginning of this month, Odeh’s attorney Michael Deutsch told the court that this witness was “at the heart of our defense.”
Odeh was charged with immigration fraud in October 2013 for allegedly incorrectly answering several questions on her application for naturalization in 2004.
Odeh moved to the United States in 1994 and is associate director of the Arab American Action Network in Chicago.
The questions she is accused of answering incorrectly appear in a section titled “Good Moral Character” and ask whether an applicant has ever been arrested, charged, convicted or spent time in jail or prison. Odeh allegedly answered negatively to all.
In his explanation of his rulings, Drain accepted the logic of the prosecution that said the specifics of the crime she was convicted of were relevant because they were material to her naturalization application — the crime was serious enough that had she answered accurately, she would likely have been denied citizenship.
But the judge ruled all other contextual evidence as irrelevant. Drain wrote:
The court accepts as credible Defendant’s claims of torture and is not unaffected by the inhumane circumstances of her detention in the West Bank. However, the issue here is whether Defendant provided false answers on her Visa and Naturalization Applications. The validity of Defendant’s conviction is not an issue for the jury’s determination.
Odeh’s defense had argued that because her arrest and conviction had been meted out by an illegitimate military regime that flouts due process and fundamental fairness, a United States court should not accept any evidence from Israel’s military court system.
The defense had also argued that evidence that her confession was forced was necessary to contextualize her confession and conviction.
The trial begins next Tuesday, 4 November. The defense said the rulings mean the trial will take significantly less time. If convicted, Odeh faces up to ten years in prison, $250,000 in fines and deportation.
Odeh had rejected a plea bargain last May that would have allowed her to avoid any prison time but would have seen her stripped of her citizenship and deported.