By: David Bloomberg Re: Franklin Retrial? (File: FRANKLI2.ZIP) MAN MAY BE RETRIED IN 1969

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By: David Bloomberg Re: Franklin Retrial? (File: FRANKLI2.ZIP) MAN MAY BE RETRIED IN 1969 MURDER DEFENSE WOULD USE LATEST RESEARCH TO QUESTION CREDIBILITY OF `RECOVERED MEMORIES' 01/01/95 LOS ANGELES DAILY NEWS A retired firefighter, George Franklin was leading a quiet life in the Sacramento area in 1989 and taking just about every California history class at American River College. "He was a person along in his years who was making the most of getting an education," recalls William Chambers, one of his instructors. Then "all of a sudden he was gone." Franklin had been arrested and transported to the San Francisco Bay Area, where in 1990 he was tried and convicted in a riveting court drama that drew national attention. The crime - killing an 8-year-old San Mateo County girl back in 1969. The key evidence - the lone witness, daughter Eileen Franklin, who testified that she buried any recollection of the childhood event for two decades before recovering detailed mental images and notifying authorities. Franklin's conviction became a watershed event in the debate over recovered memories. What followed was a surge in recovered memory lawsuits, then a backlash from accused parents, mixed with a steady flow of conflicting academic studies. Franklin, now 55, is once again in the spotlight. A federal judge is mulling whether to grant him a second trial. Soon Franklin could be a free man. Or he could still be in prison, his appeals nearly exhausted. "We still talk about (Franklin) at times," said Chambers, who now teaches part time at American River. "It is still hard for us to believe that it is the same person who was accused of these kinds of things." Franklin's court battle is a case study of how the justice system collides with a fast-changing field of research. There is general agreement that both sides would have a deeper base of research and experts than they had during the 1990 trial, one of the first of its kind involving a lone witness relying on recovered mental images. "There really is a reasonable doubt about this man's guilt and a huge doubt about the kind of evidence that was used to convict him," said Elizabeth Loftus, a psychologist who testified for the defense in the first trial. The verdict prompted her to conduct new research to show how therapists can plant false memories. The research of Loftus, along with conflicting work that supports the validity of the memories, "would be relevant if there is a new trial," said Bruce Ortega, a state deputy attorney general. But it is his job to ensure that such an event never occurs. New research that may sway a jury simply isn't sufficient grounds for a judge to grant a second trial. New research "would have to prove that (Eileen Franklin) wasn't telling the truth," said Dylan Schaffer, an associate with Dennis Riordan, the attorney representing George Franklin. "All it proves is that the testimony is inherently suspicious." Instead, George Franklin's lawyers are attempting to show in federal court that Franklin's constitutional rights were violated in 1990 because he did not receive a fair trial, in hopes that the judge will grant a new trial that undoubtedly would highlight the new research. The grisly crime in 1969 stunned the Peninsula community of Foster City, where the young victim, Susan Nason, lived and went to school with Eileen Franklin. Her body was found on a remote hillside, her head bludgeoned. San Mateo County investigators were stumped until 1989, when Eileen Franklin, too afraid at first to give her name, called the authorities. She recently had recovered the memory of that awful afternoon in 1969 - how her father had taken her and Nason to the hills in his van, then raped and killed Nason and threatened to kill Eileen if she ever told anyone what she saw. Divorced and living alone in a Sacramento area apartment, George Franklin was arrested in 1989 and taken to San Mateo County jail in Redwood City. Authorities reported finding incest and pedophile-related pornography in the apartment. Franklin did not testify at the trial, but his daughter's two days on the stand made national news. After eight hours of deliberation, the jury found Franklin guilty of first-degree murder. The verdict "brought the topic of repressed memories into public consciousness," said Pamela Freyd, executive director of an organization that didn't exist at the time, the False Memory Syndrome Foundation. "It just swept down on us. One didn't know how to respond for a while." For Loftus, a psychology professor at the University of Washington, "this was the beginning of a whole new direction of my research. I've done many studies that I might not have done." Because of the legal strategy of Franklin's defense team, Loftus' new research has little to do with Franklin's fight for a second trial. At issue is whether other evidence was appropriately admitted in the trial and how the judge instructed the jurors to interpret it. Riordan claims that Franklin's Fifth Amendment right against self-incrimination was violated by his daughter's testimony detailing a visit she made to her father in jail. She testified that during the visit, she asked her father about the murder. Instead of telling her he didn't do it, he pointed to a sign warning that the conversations might be recorded. The judge instructed the jury that this response by George Franklin could possibly be considered an admission of guilt. A state appeals court already has ruled that the judge's instruction was improper, but that it was harmless because the jury would have convicted Franklin anyway. Riordan disagrees and has taken his fight to federal court. Last week, he and Ortega made their cases before U.S. District Judge Lowell Jensen. "I think Mr. Franklin received an eminently fair trial," said Elaine Tipton, the San Mateo County deputy district attorney who prosecuted the case back in 1990. "The claims of error are insignificant, at best." Franklin's side disagrees. "This is one, somewhere along the way, that the federal court will reverse," said Schaffer. "This is a phenomenal case. We don't get them as good as this." Jensen could make his decision any day, month or year. There is no deadline. If Jensen rules that Franklin's constitutional rights were indeed violated and that he deserves a second trial, the judge then must decide whether to release Franklin pending the second trial, allow him to make bail or keep him incarcerated. If he rules against Franklin, then Riordan likely would appeal to the federal appellate court.

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