On Wednesday, lawyers for Palestinian American community leader and activist Rasmea Odeh will argue before a US appeal court that she was denied her constitutional right to a fair trial.
Last November, a federal jury in Detroit, Michigan, found Odeh guilty of lying on her immigration and naturalization applications filed respectively in 1994 and 2005, because she had failed to disclose her conviction by an Israeli military court decades earlier.
US District Judge Gershwin Drain, who presided over the trial, barred Odeh from speaking about the torture and abuse she suffered in Israeli detention. But most damaging to her defense was that the judge did not allow her to call an expert witness to testify that she suffers from post-traumatic stress disorder.
“Without explaining to the jury that she suffers from this disorder, which causes one to block traumatic experiences, the jury was left asking why didn’t she reveal her prior conviction when she was questioned about it,” Odeh’s lead attorney Michael Deutsch told The Electronic Intifada.
In March, Drain sentenced Odeh to 18 months in prison, including time served, and ordered her to pay a $1,000 fine.
Her US citizenship was also revoked and she now faces deportation to Jordan following the completion of her sentence.
At her sentencing hearing, Odeh told the court that the prospect of losing the community she has worked to build during her 20 years in the US was “like a death sentence.”
Odeh’s indictment in October 2013 was the result of a massive government investigation launched from the US Attorney’s office in Chicago into Palestinian and Palestine solidarity activists primarily in the Midwest but as far afield as North Carolina and California, which Deutsch has described as a political “fishing expedition.”
After the verdict was read last November, Drain ordered Odeh to be jailed immediately at the behest of the prosecution, which claimed she was a flight risk. Odeh was released after one month and since then has remained free on a $50,000 bond pending this week’s appeal.
In 1969, the Israeli military charged Odeh, who was 21 years old at the time, with helping to coordinate a pair of bombings in Jerusalem that left two men dead.
Convicted and sentenced to multiple life terms by a military court, Odeh spent 10 years locked up by Israel before she was released in a prisoner exchange.
Odeh has maintained her innocence and contends that her conviction was based on a confession she was forced to sign after weeks of torture, including rape with a foreign object.
Odeh asserts that she did not knowingly lie on her immigration and naturalization applications, but rather suffers from post-traumatic stress disorder (PTSD), which prevents her from recalling her conviction.
After Odeh’s indictment in 2013, clinical psychologist Mary Fabri, who served as president of the National Consortium of Torture Treatment Programs, observed Odeh and concluded that she indeed suffers from PTSD and that it was likely she would have avoided recalling the experience and conviction.
However, Fabri’s testimony was not allowed at Odeh’s trial last November.
“The expert testimony was critical to understanding Odeh’s state of mind when she answered her question on the immigration and naturalization applications,” Deutsch said.
The appeal argues that she was denied the opportunity to present a complete defense, depriving her of her right to a fair trial under the Fifth and Sixth Amendments of the US Constitution.
At the November trial, the only defense Odeh could proffer was that she believed the questions on the immigration forms about her arrest and criminal history referred to her record in the United States. Deutsch says that interpretation was the result of her PTSD.
Israeli military documents
Her appeal also challenges the government’s use of Israeli military court documents at trial.
Drain insisted on keeping the trial nonpolitical and narrowly focused on whether the answers Odeh provided on her immigration and naturalization applications were true. Yet he allowed the jury to view the military court documents that showed Odeh had been convicted of coordinating two bombings.
“That was quite prejudicial,” Deutsch said. “We say it’s not relevant whether people were killed or what the crime was.”
In his response to the appeal, Assistant US Attorney Jonathan Tukel, who prosecuted Odeh, is defending the decision to exclude evidence of Odeh’s diminished mental capacity.
The government is maintaining that Odeh was charged with a “general intent” crime rather than a “specific intent” crime, and therefore whether she was willingly deceiving the government is irrelevant.
Judge Drain had also ruled her crime as “general intent,” significantly lowering the burden of proof for the government and justifying the exclusion of the expert testimony.
“It’s ridiculous in a way,” Deutsch said. “They are just mincing words to avoid allowing an expert to testify. This is the way courts try to eliminate expert testimony on psychological states because they are worried about the influence on the jury.”
If the appeal is unsuccessful, Deutsch hopes to reduce Odeh’s sentence to time served.
“It’s not over”
Meanwhile, Odeh has remained in Chicago, continuing her work as associate director of the Arab-American Action Network (AAAN).
“She is still teaching and hasn’t missed a minute of work,” Hatem Abudayyeh, executive director of AAAN, told The Electronic Intifada.
“Her health is strong. She is always in high spirits. Whereas all of us on the defense committee are always stressed out in these moments, she’s the one who keeps things calm and her spirits are calm,” he added. “That’s who she is. She is a force of nature.”
Since her conviction last November, Odeh has spoken at various political gatherings, including a protest for Black Lives Matter and the National Students for Justice in Palestine conference last weekend. She was also the recipient of an award from the US Campaign to End the Israeli Occupation.
Abudayyeh says he expects as many as 200 of Odeh’s supporters to be at the US courthouse in Cincinnati, Ohio, this week, where the appeal will be heard. Many will be coming from Chicago and surrounding Midwestern and Eastern cities, just as they did during her trial in Detroit.
Deutsch says he hopes the appellate court takes some time to carefully consider the arguments this week.
But if the court does uphold the conviction, Odeh’s bond will be revoked and she will have to turn herself in immediately. The appeal judges could take up to six months following this week’s hearing to return their decision.
Abudayyeh believes Odeh has a strong case for appeal but says there are several recourses, both legal and political, to pursue in case her conviction is upheld.
“Regardless of the outcome in the appellate court, this isn’t over,” he said.
Charlotte Silver is a journalist based in San Francisco. Twitter: @CharESilver.
- Rasmea Yousef Odeh
- Palestinian Americans
- political prosecution
- Gershwin A Drain
- Michael Deutsch
- Israeli military court system
- post-traumatic stress disorder
- Mary Fabri
- Jonathan Tukel
- Hatem Abudayyeh
- Arab American Action Network
- Black Lives Matter
- Students for Justice in Palestine
- US Court of Appeals