By: David Bloomberg
Re: Franklin Conviction Overturned!
From the Chicago Tribune, 4/5/95:
Memory-based conviction voided
Judge rules trial in 20-year-old murder was unfair
SAN FRANCISCO--A man convicted in a 20-year-old murder, due in part to his
daughter's recovered memory of seeing him strike her playmate, was granted a
new trial Tuesday by a judge who said the first trial was unfair.
George Franklin Sr. of San Mateo, Calif., was convicted of first-degree
murder in January 1990 for the 1969 slayng of 8-year-old Susan Nason, his
daughter's childhood friend. He was sentenced to life in prison.
The killing was unsolved until Eileen Franklin-Lipsker said she was looking
at her own daughter in January 1989 and suddenly rememberd seeing her father
raising a rock above Susan's head. She was the main witness against her
U.S. District Judge D. Lowell Jensen cited inadmissable evidence of a
purported confession in overturning the conviction.
"This verdict was the product of a trial which was not fundamentally fair,"
Jensen said jurors should assess repressed-memory testimony like any other
recollection of a witness, but it was unfairly bolstered in this case by
improper and misleading testimony that Franklin had admitted the killing.
The ruling "states the obvious--you can't lie to juries," Franklin's
appellate lawyer, Dennis Riordan, told reporters.
If Franklin is retried, Riordan said, a conviction would be unlikely
because of increasing public skepticism of repressed memory.
Matt Ross, a spokesman for Atty. Gen. Dan Lungren, declined to comment on
whether the state will appeal.
In overturning the conviction, Jensen cited a jailhouse visit to Franklin
by his daughter, which a prosecutor had helped arrange.
Franklin-Lipsker testified that, during the visit, she referred to her
father's guilt and asked him to confess, but he silently pointed to a sign that
said conversations might be monitored.
San Mateo County Superior Court Judge Thomas McGinn Smith told jurors they
could consider Franklin's silence as a possible admission of guilt.
A state appeals court ruled in 1993 that the evidence should have been
excluded but said Franklin would have been found guilty anyway on the basis of
his daughter's testimony.
Jensen, though, said he could not determine beyond a reasonable doubt that
jurors would have convicted Franklin solely on the basis of his daughter's
Under a U.S. Supreme Court ruling prohibiting use of a defendant's silence
as evidence of guilt, "it is difficult to imagine a more egregious...error or
one that infected the entire conduct of a trial," Jensen wrote.
It would have been nice to see the actual "memories" discussed more, but it
seems this trial was a tragedy of errors all around...