United States v. Odeh: The 6th Circuit decision and its implications

Ms Rasmea Odeh is a Palestinian American leader and activist who worked for years helping immigrant women in the Chicago area. She has an excellent reputation as a true activist and a true leader dedicated to helping others. After living a normal and peaceful life in the US, she found herself in a legal nightmare.

          Ms Odeh’s nightmare began when the US department of Justice charged her with illegally obtaining her citizenship. The government charged that Odeh lied about having a criminal record. Many years ago, Israel had charged her and convicted her of terrorism. The jury found her guilty. She lost her citizenship, the judge imposed a prison sentence and ordered her deported after serving time in prison. Her defense team appealed to the 6^th Circuit in Cincinnati.

          The Odeh case has mobilized a large number of people and organizations from all kinds of backgrounds. Ms Odeh is a well known and respected activist and leader. There was a sense that her case is a political case- that she is being targeted by the government for her activism. Many thought that a woman like Odeh should recognized and honored instead of imprisoned and deported.

          The defense team appealed her case, raising a number of important legal questions. The Circuit court decided on the appeal on February 25, a few days ago. This decision was seen as a partial victory for Ms Odeh. But what did this decision entail?

          There are three opinions in the Court’s decision. One is the opinion signed on by the three judges that heard the case, a separate opinion by Judge Karen Moore and another separate opinion by Judge Batchelder.  The court’s opinion is the opinion as to the appeal but the separate opinions are important and shed light into important aspects of the case. The three- judge panel wrote:

“On appeal, Odeh’s primary argument is that she was denied the right to present a complete defense because the district court precluded her witness, an expert in post-traumatic stress disorder (PTSD), from testifying about why Odeh did not know that her statements were false. Odeh maintains that the expert would have testified that Odeh’s alleged torture in an Israeli prison gave her PTSD, which shaped the way that she viewed questions about her criminal history in the naturalization application. Because this type of testimony is not categorically inadmissible to negate a defendant’s knowledge of the falsity of a statement, the district court must consider the admissibility of the testimony.” At a minimum, Odeh will get an evidentiary hearing to determine if the PTSD testimony is to be allowed. The Court did not order that she be given a new trial but if the trial court deems the PTSD testimony admissible then naturally she will get a new trial. This is what they ordered:

“Our reversal is based on the categorical exclusion of PTSD-related evidence because § 1425 (a) was deemed to be a general-intent crime. We do not address other possible bases for excluding the evidence, under evidentiary standard such as those identified by the district court in its order discussion the use of PTSD testimony in federal and state courts. Nor do we prescribe whether a new trial would be required once the evidentiary determination has been made.

The judgment of the district court is vacated, and the case is remanded for proceedings consistent with this opinion.”

          Of the three opinions, the most interesting is judge Batchelder’s. Judge Batchelder has serious concerns with the trial. She does not believe that Odeh had a fair trial and her observations echo the concerns of the friends and supporters of Odeh.  Judge Batchelder notes that, indirectly, Odeh was portrayed as a terrorist, which inflames the jury, but she was not allowed to raise the issue of her torture by the Israelis. Judge Batchelder stated:

‘But if this case is only about lying under oath, then I cannot see how allowing any of the objected-to portions of the Israeli indictment to go before the jury was not an abuse of discretion under Rule 403. As Judge Moore points out, the names of the victims and the prayer have almost no probative value and present a serious danger of unfair prejudice. Likewise, proving that Odeh lied under oath, and even that that lie was “material”, would not require evidence that she was charged with “plac[ing] explosives in the hall of the SuperSol in Jerusalem… with the intention of causing death or injury.” The risk of unfair prejudice from this evidence was enormous, especially since Odeh was not permitted to testify at trial about her claims of torture. The word “terrorist” may never have been uttered before the jury, but it was doubtless in the minds of everyone present.’ Batchelder notes that had the conviction been brought to the attention of immigration, they would have looked into the torture allegation. Judge Batchelder disapproved of the jury being asked to half play the role of the immigration authorities, that is to put themselves in the immigration authorities as to the lie but not as to hearing the explanation. She stated: ‘The Fourth Amendment exclusionary rule applies to foreign searches and seizures if the defendant can show that “the conduct of foreign police shocks the judicial conscience.” United States v. Valdivia, 680 F.3d 33, 51 (1^st Cir. 2012). And “[it] is well settled that the Bill of Rights limits both the federal government’s treaty-making powers as well as actions taken by federal officials pursuant to the federal government’s treaties.” Sahagian v. United States, 864 F.2d 509, 513 (7^th Cir. 1998). The evidentiary concerns may be different in the circumstance, however, because the jury was instructed to step into the shoes of the immigration authorities. If Odeh had told the truth, those officials would doubtless have looked at this evidence. By the same token, however, they would have also considered Odeh’s claims of torture.’

          Judge Batchelder does not believe that Odeh had a fair trial. If it were up to her, she would have ordered a new trial. She stated: ‘Whether a defendant’s naturalization application would have been denied if the immigration authorities had known the truth about her past is not an element of § 1425(a). In light of this, I would have held that the district court abused its discretion in allowing the objected-to portions of the Israeli indictment to go before the jury and that this error was not harmless. This case should be remanded for a new trial. From the majority’s decision to the contrary, I respectfully dissent.’

To help Ms Odeh, one of the things Odeh’s friends and supporters can do is focus on advocating for a new trial. The 6^th Circuit court’s decision calls for a new trial in all but name.