The trial would not go ahead if the expert witness she wants to call is disqualified at a preliminary hearing set for November.
Outside the US courthouse, Odeh’s supporters, many of whom had traveled from Chicago and other cities, cheered the announcement. Odeh thanked them for their support.
In November 2014, Odeh, 68, was found guilty of immigration fraud for failing to disclose that she had been arrested, prosecuted and imprisoned by Israel’s military in 1969.
She faced 18 months in prison, revocation of her US citizenship and deportation to Jordan.
Fabri had examined Odeh and submitted an affidavit saying that Odeh suffered from post-traumatic stress disorder (PTSD) as a result of being tortured by Israeli soldiers, forcing her to sign a confession.
Fabri said that Odeh’s PTSD may have affected her state of mind when she filled out the immigration and citizenship documents filed respectively in 1995 and 2004.
Her defence had argued that Odeh had been denied her right to a fair trial by not permitting her to call Fabri.
Judge Drain had originally barred the expert witness on the basis that Odeh was charged with a “general intent” crime rather than a “specific intent” crime – a legal distinction he held would make her state of mind irrelevant to the case.
The appeal court reviewed Fabri’s affidavit and rejected Drain’s reasoning.
“Dr. Fabri’s proffered testimony is relevant to whether Odeh knew that her statements were false,” the appeal court stated.
The appellate judges ordered Drain to either find another basis to exclude the expert testimony or allow a new trial for Odeh.
Michael Deutsch, Odeh’s lead attorney, told The Electronic Intifada that Judge Drain offered no new argument against scheduling a new trial that would include Fabri’s testimony, but granted the prosecution’s request for a pre-trial hearing to determine her qualifications.
Attorneys can ask a court to exclude an expert’s testimony on the basis that it is not relevant or their methodology is not reliable.
A hearing where prosecutors will challenge Fabri and any other expert witnesses the defense intends to call will take place on 29 November.
Deutsch said he expects Fabri’s testimony to be permitted and the trial to go forward in January.
However, what other evidence will be permitted in the new trial – such as the details of Odeh’s torture, and the specifics of the crime for which she was convicted – is still to be decided.
During her original trial, prosecutors repeatedly mentioned that Odeh was accused in 1969 of helping coordinate two bombings in West Jerusalem that caused the death of two civilians. Odeh maintained that the conviction by an Israeli military court was the result of her prolonged torture, though she was not allowed to discuss this in front of the jury.
The original US Attorney Jonathan Tukel is no longer prosecuting the case.
Tukel had pursued Odeh with fervor, recommending that Drain sentence her to seven years in prison, an extraordinary sentencing enhancement for the type of charges she faced that has been reserved for people involved in death squads in Guatemala and the Rwandan genocide.