Friday, February 26, 2016

Rasmieh Odeh Case Remanded By the Sixth Circuit

The United States Court of Appeals for the Sixth Circuit has ordered the district court to reconsider an evidentiary ruling against Rasmieh Odeh, who was convicted of lying to immigration officials in her naturalization documents (failing to disclose a terrorism conviction in Israel) and sentenced to 18 months in prison (followed by deportation back to Jordan).

While the majority rejected most of Ms. Odeh's contentions, it concluded that the district court erred in "categorically" excluding evidence of her alleged PTSD which -- Odeh argued -- caused her not to know her statements were false because she would have mentally suppressed all memory of her time in Israel (Ms. Odeh alleges that she was tortured by Israeli authorities in the process of extracting her confession). The Court did not rule that this evidence necessarily had to be admitted, only that the district court made a mistake in holding that evidence of this sort had to be excluded categorically (that is to say, the Court left open the possibility that the evidence should have been excluded for case-specific reasons).

The terrorism conviction regarded Ms. Odeh's role in bombing a supermarket, an attack which killed two civilians. I have obviously zero sympathy for her actions (there is no serious dispute that Ms. Odeh was involved in the bombing, the only question is regarding the extent); I likewise think that torture -- including of terrorism suspects -- is categorically wrong. Ms. Odeh's conviction, however, is not based on the Israeli conviction itself but on her failure to disclose it in response to a direct question by immigration authorities: "Have you EVER been charged with committing any crime or offense?” (a failure which, on its face, has nothing to do with either the bombing itself or her allegations of torture during interrogation). And while I am quite dubious of her claim that PTSD caused her to simply "forget" the conviction and ensuing prison term every occurred, the opinion by Judge John M. Rogers (a George W. Bush appointee) is reasonable enough in suggesting that such evidence could at least theoretically negate an element of the offense and therefore required more fine-grained analysis by the district court.

The other two judges on the panel were Karen Nelson Moore (Clinton appointee) and Alice Batchelder (George H.W. Bush); the presiding district court judge was Gershwin Drain (Obama). For all you "law is politics" fans, note that not only was this opinion written by a Republican reversing a Democratic appointee, it was in fact Judge Batchelder (the elder Bush appointee well-known for her staunch conservatism) that authored the most "pro-Odeh" opinion of all. She would have vacated the conviction entirely on the basis that admitting the details of Odeh's particular offense (the terrorist bombing) was unduly prejudicial. Since the conviction was simply about whether Odeh lied on her documents or not, there was nothing probative (but much inflammatory) in the jury knowing specifically that the conviction she had failed to disclose was for murdering two civilians in a terrorist bombing.

The case has been remanded back to the district court, which was left to reconsider its evidentiary ruling on alternative grounds and -- if it ultimately sides with Ms. Odeh -- whether a new trial is necessary.

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