At the hearing, prosecutors were expected to argue against allowing Odeh’s expert witness to testify at a new trial that Drain has tentatively scheduled for January.
If the witness, an expert on the psychological effects of torture, were to be disqualified, it is unlikely the new trial would go ahead at all.
Drain will now issue his decision on whether Odeh, 69, will get a retrial without first hearing oral arguments. He will base his decision on written evidence and reports both sides have filed in recent weeks.
Michael Deutsch, Odeh’s lead attorney, says he hopes this is a good sign for his client.
The last minute cancellation came as a surprise to friends and supporters of Odeh, over 100 of whom were planning to travel from Chicago to Detroit for Tuesday morning’s hearing.
Two clinical psychologists were also en route from New York and New Mexico to testify for the defense.
“I’m mildly optimistic,” Deutsch told The Electronic Intifada. “We told [Judge Drain] in our papers that we didn’t see a need for a hearing because based on the affidavits and the reports he should grant us our right to have our expert testify at a new trial.”
“It seems that if he was going to deny us that right, he would have given us this hearing.”
Deutsch says he expects Drain to issue a ruling soon.
In November 2014, Odeh was convicted of immigration fraud for failing to disclose her 1969 arrest and conviction by the Israeli military on her US immigration and naturalization documents filed decades later.
Her lawyers have argued that she was denied the opportunity to present a complete defense because the judge prohibited her from speaking about the torture and abuse she endured, which led her to signing a false confession in 1969.
Clinical psychologist Mary Fabri, the defense’s key torture expert, had concluded from an 18-hour examination in 2014 that Odeh suffers from post-traumatic stress disorder (PTSD) as a result of torture, including rape, by Israeli interrogators nearly 50 years ago.
Based on that examination, Fabri believes Odeh could have filtered out the traumatic memories when she filled out her immigration and naturalization applications.
But Drain refused to allow Fabri to testify at Odeh’s first trial in 2014. He also explicitly barred Odeh from speaking about her torture, even while allowing the prosecution to tell the jury about her conviction in the Israeli military court.
In February 2016, a federal appeals court sided with Odeh, ruling that Drain had erred by refusing to allow the defense to call Fabri.
US prosecutors have insisted that Fabri should be disqualified as an expert witness. In August, Drain allowed a government expert witness to conduct an in-depth psychiatric examination of Odeh in order to challenge Fabri’s conclusions.
The government’s expert, clinical psychologist Ron Nieberding, carried out the examination of Odeh in Chicago, over five days in early October. His report on the examination agrees with Fabri that Odeh likely does suffer from PTSD and was not “attempting to feign the presence of memory or psychiatric problems.”
But Nieberding considered the conclusion – supported by Fabri’s examination – that Odeh coped with her PTSD at the time she filled out her applications by filtering out memories to be “highly questionable.”
US prosecutors ultimately did not include Nieberding’s findings in their legal brief, perhaps because they corroborated Fabri’s claims that Odeh suffers from PTSD.
Instead, the government submitted a separate report, signed by three doctors from the Walter Reed National Military Medical Center, challenging the methodology used by Fabri.
The defense objected to the fact that part of the materials the Walter Reed doctors reviewed were documents from Israel’s military courts.
Odeh’s legal team have two additional experts on the psychiatric impact of torture who have reviewed Fabri’s examination, methodology and findings, and are prepared to testify that her conclusions are valid.
According to Deutsch, the government’s latest brief against a retrial argues that Fabri and her findings should be disqualified, and that admitting her testimony would confuse a jury.
Deutsch said that prosecutors maintain that Odeh is lying when she says she was tortured by the Israeli army and is doing so to cover up her role in “terrorism.”
“They took a hard line that she’s a liar and a serial liar, that her father lied,” Deutsch said. Yousef Odeh, Rasmea’s father, had also been arrested in the same Israeli army sweep that took in his daughter in 1969.
Since Odeh was released on bail after spending a month in a Michigan prison in December 2014, she has been restricted to the Chicago area, where she works with the nonprofit community service organization the Arab American Action Network.
In March 2015, before the appeal court ruled in her favor, Judge Drain had sentenced Odeh to 18 months in prison and a fine for lying on her immigration documents.
Her US citizenship will also be revoked and she faces deportation to Jordan if her guilty verdict is upheld.