Repressed-Memory Murder Conviction Is Appealed

The conviction of a man implicated by his daughter’s repressed memory of a 1969 murder should be overturned because of revelations in a book she wrote about the bizarre case, a state Court of Appeal was told Wednesday.

A lawyer for George T. Franklin said a book by Eileen Franklin-Lipsker shows she acted as an unlawful agent for the prosecution when she made a pretrial jailhouse visit to her father and urged him to confess that he killed 8-year-old Susan Nason, her childhood playmate.

Franklin, a retired firefighter from San Mateo, remained silent--and the judge at his 1990 trial said jurors could consider his silence as evidence of guilt. He was convicted of first-degree murder and sentenced to life in prison.

The U.S. Supreme Court has held that the questioning of defendants, without their lawyers present, by a private person acting for the prosecution violates the Constitution--and that neither the defendant’s admissions nor silence can be used against him.

In Wednesday’s hourlong hearing, defense attorney Dennis P. Riordan contended that prosecutors had taken legal shortcuts to assure a conviction of a man they believed was a “monster” who had committed a “horrible . . . highly unusual” and long-unsolved crime.

“But no case is worth sacrificing the rules of law,” said Riordan. “This case should be sent back for retrial and a fair proceeding.”

The investigation of the murder had proved fruitless until Franklin-Lipsker, in a move that gained nationwide attention, came forward to say she had suddenly recalled seeing her father commit the murder two decades before. Her testimony was the key element in the prosecution’s case.

In the book, called “Sins of the Father,” Franklin-Lipsker said she told a prosecutor she wished to visit her father in jail. The prosecutor said “he could not ask me to do that,” she wrote, but “said he didn’t think it was such a bad idea.” The prosecutor provided the name of the officer to arrange the visit.

At the jailhouse, Franklin said nothing after his daughter’s plea that he confess. He gestured to a sign warning that prisoner conversations may be monitored.

State Deputy Atty. Gen. Bruce Ortega argued Wednesday that Franklin’s silence was a legitimate issue for the jury because his daughter was not acting at the instigation of the prosecution.

“I don’t think the court can find that the government and Eileen Franklin-Lipsker were in complicity,” Ortega said. “The government did not create a situation likely to induce (Franklin) to confess.”

Defense attorney Riordan also contended that jurors should have been shown evidence of news accounts of details of the crime released by authorities--a crushed ring and a rock found near the body. Riordan said the daughter could have learned such details from newspapers, rebutting prosecution claims that the daughter’s testimony about those details could have come only from her repressed memory, he said.

Prosecutor Ortega countered that there was no proof that Franklin-Lipsker had access to such news accounts and that the material was properly withheld from the jury.

In their appeal, Franklin’s lawyers contend that the book shows that Franklin-Lipsker’s decision to accuse her father was a carefully orchestrated effort to gain attention and make money--not, as she said at trial, a reluctant decision to serve justice. Since the trial, she has appeared on numerous television and radio shows and a made-for-TV movie is to appear next fall.

Franklin’s attorneys say the book discloses information about Franklin-Lipsker’s previous conviction for prostitution and arrest for cocaine possession--information that the defense was improperly denied at trial. A decision by the panel is due within 90 days.