This is the third of four installments, cross posted from The Faculty Lounge, in a series of posts about the Trial of Rasmea Odeh. Part One is here; Part Two is here. This post addresses issues of ethics and responsibility as raised by Odeh’s guilty plea.
Defense counsel Michael Deutsch did an outstanding job in representing Rasmea Odeh, eventually succeeding in persuading the Sixth Circuit Court of Appeals to allow testimony that his client’s alleged torture in Israel “gave her chronic PTSD and that this disorder operated to automatically filter out Odeh's time in Israel, causing Odeh to interpret questions so as to avoid any thought of her trauma.” According to Deutsch’s argument, “Odeh employed a protective mechanism that narrowed her focus in reading and hearing the criminal history questions,” so that she considered only events that occurred in the United States. She therefore actually answering truthfully when she denied that she had ever been arrested, charged, or imprisoned, notwithstanding the ten years she’d spent in an Israeli prison.
And then, having secured a new trial on the basis of the skillfully presented PTSD theory, Deutsch turned around and signed a negotiated plea agreement, conceding that the PTSD story had been a sham all along. It turned out, as Odeh admitted and Deutsch acknowledged, that she did not have PTSD, had not misunderstood the naturalization questions, and had intentionally provided false answers. Was it ethical for an attorney to raise such a defense, given that its factual underpinnings were untrue?
First, we should recognize that Odeh herself cannot be faulted for either proceeding to trial (in the first place) or pleading guilty (following the reversal of her initial conviction). As a criminal defendant, Odeh was always entitled to require the government to prove its case beyond a reasonable doubt and to appeal her conviction on the basis of evidentiary errors. Afterward, she was equally entitled to enter a guilty plea, if she determined that was in her best interest – which it surely was, given the certainty of conviction – and it was her lawyer’s obligation to represent her effectively at each stage of the process. Of course, Odeh was not entitled to lie when she testified at the first trial (as clearly appears to have happened), which explains why the government evidently insisted on a full and detailed admission of guilt as a condition of the negotiated plea agreement. In any case, it is hardly unusual for a desperate defendant to come up with a conveniently exculpatory story.
What about lawyers? Here we must bear in mind the government’s burden in every criminal case, which is to prove the defendant guilty beyond a reasonable doubt. It is therefore defense counsel’s job to raise all reasonable doubts by presenting admissible evidence (or arguing the absence of evidence).
According to Rule 3.1 of the Model Rules of Professional Conduct, an attorney may always defend a criminal case so “as to require that every element of the case be established.” Consequently, it is sometimes said that the prosecution must “exclude every reasonable hypothesis of innocence,” which in Odeh’s case would apply to the hypothesis of PTSD. In other words, Deutsch was operating as a classic defense lawyer when he raised the possibility – that is, the hypothesis – that Odeh had been unable to answer the naturalization questions accurately due to events in her past, at which point it would have become the government’s burden to refute the theory beyond a reasonable doubt.
And that would be true even if Deutsch did not himself believe the PTSD theory. That is another classic precept of criminal defense ethics, dating back at least to the 18th Century, when James Boswell asked Samuel Johnson how he could justify “supporting a cause which you know to be bad.” Johnson’s famous reply has survived the test of time:
Sir, you do not know it to be good or bad until the judge determines it. . . . An argument which does not convince yourself, may convince the Judge to which you urge it; and if it does convince him, why, then, Sir, you are wrong and he is right. It is his business to judge; and you are not to be confident in your own opinion that a cause is bad, but to say all you can for your client, and then hear the Judge’s opinion.
Given Odeh’s claims of trauma and memory lapse, and the existence of a clinical psychologist who applied the automatic filtering theory to Odeh’s naturalization answers, it was well within bounds for Deutsch to advance the PTSD defense in Odeh’s trial and appeal, even if he had doubts about it (or flatly disbelieved it) himself.
Matters would be different, of course, if Deutsch had colluded with his client and the psychologist simply to fabricate the PTSD story. The right to present a defense does not include the right to invent false testimony. Rule 1.2 of the Model Rules of Professional Conduct provides that a lawyer may not “counsel” or “assist” a client in committing fraud, and Rule 3.3 explicitly adds that an attorney may not “offer evidence that the lawyer knows to be false.”
Lawyers for guilty defendants are regularly questioned about their ethics, so it is important to understand the centrality of “reasonable doubt” to the criminal justice system. The standard would be meaningless if lawyers could not raise hypotheses of innocence. Assuming (as I do) that Michael Deutsch did not participate in contriving the sham PTSD story for Odeh, he was well within the rules to present it as an argument in court. It was always the government’s burden to prove that Odeh understood the questions at her naturalization interview, which included refuting the hypothesis of PTSD. When the PTSD theory was shown to be illogical and unsupportable, Deutsch did the right thing by negotiating a guilty plea, including his written acknowledgement that Odeh’s trauma claim had been false.
The same cannot be said, however, for Odeh’s supporters and enablers, as will be discussed in Part Four.