Judge Overturns Conviction in Memory Case

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 was convicted of first-degree murder in January, 1990, for the 1969 slaying 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 remembered seeing her father raising a rock above Susan’s head. She was the main witness against him.

U.S. District Judge D. Lowell Jensen cited inadmissible evidence of a purported confession in overturning the conviction. “This verdict was the product of a trial which was not fundamentally fair,” Jensen said.

The judge 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 about repressed memory cases.

Matt Ross, a spokesman for Atty. Gen. Dan Lungren, declined comment on whether the state would appeal the ruling.

In overturning the conviction, Jensen cited a jailhouse visit to Franklin by his daughter, which a prosecutor had helped to 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 that 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 because Franklin was relying on his right against self-incrimination. But the court upheld the conviction, saying that Franklin would have been found guilty anyway based on his daughter’s testimony.

But Jensen said he could not determine beyond a reasonable doubt that jurors would have convicted Franklin based solely on his daughter’s testimony.