The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
Rasmea Odeh's trial in the Eastern District of Michigan began on November 5, 2014. The presiding judge was Gershwin Drain, an African American appointed by President Obama, who had tried over 150 cases to verdict during his earlier career as a federal public defender. The defense had been optimistic when Judge Drain replaced Judge Paul Borman, who had recused himself when he discovered that his family held stock in Supersol's parent company. They were soon disappointed when Judge Drain held that Odeh could not testify about her torture by Israeli interrogators. The only issue in the case was Odeh's concealment of her conviction and imprisonment, he ruled, not the legitimacy of the Israeli criminal process. Deutsch lamented on Chicago Public Radio that the court had "cut the heart out of our defense."
The prosecution case was uncomplicated, based almost entirely on digitally presented documents. The prosecution introduced Odeh's visa and naturalization applications, highlighting the false answers to the questions about criminal convictions and imprisonment. The naturalization officer who conducted Odeh's citizenship interview could not remember the details of the session in 2005, but she testified that she had always asked the same questions in-person, and that she would have flagged any changed or corrected answers on the form. Finally, the prosecution offered certified copies on the Israeli indictment, conviction, and sentence, along with a set of Odeh's fingerprints, which had been produced pursuant to a Mutual Legal Assistance Treaty.
Still reeling from Drain's pretrial ruling, the defense was not without stratagems. Deutsch repeatedly attempted to raise the torture issue in testimony and argument, at times drawing rebukes from the court.
Regarding the actual evidence, Odeh testified that the answers to the visa application had been given to her in English by her brother – who had passed away before trial – and she had simply copied them onto the form without understanding what they said. The cross examiner attempted to undermine her testimony, but Odeh insisted that she had only the barest knowledge of English at the time.
In the course of my research, I discovered evidence that Odeh had been lying, which was evidently unknown to the prosecution. Odeh graduated high school just before the Israeli occupation, and was sufficiently accomplished to be accepted to medical school. Her education had been under the Jordanian curriculum, which required daily English instruction beginning in fifth grade. By the time she graduated, she would have received over 2000 hours of English instruction. She also attended a year of medical school in Lebanon and graduated from law school in Jordan, both of which involved instruction in English. The claim that she could not read or understand the questions on a simple form was ridiculous, but the facts showing her language proficiency were not raised by the prosecution.
Odeh could not claim similar illiteracy regarding the naturalization form, because she had to pass an English proficiency test to obtain citizenship. Instead, her attorneys located a psychologist who put forward the novel theory that Odeh's PTSD had resulted in a type of "automatic filtering" that caused her to misinterpret the questions.
The form asked these and several similar questions, boldface and capitalization original:
Have you EVER been charged with committing any crime or offense?
Have you EVER been convicted of any crime or offense?
Have you EVER been in jail or prison?
According to the defense psychologist, Odeh's PTSD filter would have caused her to block her experiences in Israel and answer only about her life in the United States, when she had not gotten so much as a parking ticket. Therefore, although her denials were inaccurate, they were not intentional falsehoods.
I explored this theory myself, interviewing nationally prominent experts on PTSD and memory, again finding powerful evidence that had eluded the prosecution.
How well did the "automatic filtering" defense fare in court? That will be the subject of tomorrow's fifth and final post.