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FRANKLIN v. DUNCAN

April 4, 1995

GEORGE THOMAS FRANKLIN, Petitioner,
v.
WILLIAM DUNCAN, Warden, Respondent.



The opinion of the court was delivered by: D. LOWELL JENSEN

 On December 21, 1994, the Court heard arguments on George Thomas Franklin's petition for a writ of habeas corpus. Dennis P. Riordan of Riordan & Rosenthal appeared on behalf of petitioner. Deputy Attorney General Bruce Ortega appeared on behalf of respondent. Having considered the arguments of counsel, the papers submitted, the applicable law, and the entire record herein, the Court GRANTS Franklin's petition for a writ of habeas corpus.

 On September 22, 1969, eight-year-old Susan Nason disappeared from her Foster City home. Her body was found in December 1969 not far off a road in a mountainous area several miles from her home. She had been beaten to death. The murder investigation remained open for many years. In November 1989, Eileen Franklin-Lipsker ("Franklin-Lipsker"), who had been a schoolmate of Susan Nason, contacted the San Mateo County Sheriff's Office, anonymously at first, and told them that she was an eye witness to the murder. Franklin-Lipsker told the police that the murderer was her father, George Franklin ("Franklin"), the petitioner in this habeas corpus proceeding. Based upon this report and the subsequent trial testimony of his daughter, Franklin was arrested, tried, and convicted of first degree murder in San Mateo County Superior Court in November 1990. He was sentenced under California law to life in prison in January 1991.

 This is a "recovered memory" case, in that Franklin-Lipsker explained that twenty years after the event, one afternoon in early 1989 after looking at her daughter, she first remembered what she had seen in 1969. There has been a great deal of review and reflection in the mental health field on this subject in recent times. Petitioner cites to several recent articles critical of the notion of "recovered memory." This developing body of thought, however, is not of controlling effect in this case. The judicial task of this Court is to determine whether or not the petitioner was actually prejudiced by trial conduct in violation of the United States Constitution. It was clear at the time of the trial, as it is today, that reliance by a jury on "recovered memory" testimony does not, in and of itself, violate the Constitution. Then as now, such testimony is admitted into evidence and is then tested as to credibility by the time-honored procedures of the adversary system. Admissibility of the memory is but the first step; it does not establish that the memory is worthy of belief. In this regard mental health experts will undoubtedly, as they must, continue their debate on whether or not the "recovered memory" phenomenon exists, but they can never establish whether or not the asserted memory is true. That must be a function of the trial process.

 By definition, trials are based on memories of the past. The recognition that memory grows dim with the passage of time is part and parcel of the trial system. Jurors are instructed that in assessing credibility they are to consider the ability of the witness to remember the event with the implicit assumption that asserted memories of events long past must be subject to rigorous scrutiny. From the common sense perspective of the trial process, then, a memory which does not even exist for a long passage of time and then is "recovered" must be at least subject to that same rigorous scrutiny.

 This case, then, may be described as a "recovered memory" case, but in reality it is a "memory" case like all others. After direct and cross examination, after consideration of extrinsic evidence that tends to corroborate or to contradict the memory, the focus must be on the credibility, the believability, the truth of the asserted memory. More specifically, from the perspective of this reviewing Court, the focus must be on the test of the credibility of the asserted memory which was conducted in the trial itself. Was it fair? Was it, or was it not, tainted by impermissible violation of Constitutional principles?

 This Court will discuss a number of errors in the trial--some of Constitutional dimension, some not. Errors are inevitable companions of trials. Perfection is an abstraction not a reality in the human context of the trial. In this trial, there are two salient errors of Constitutional dimension of fundamental concern to this Court. For one, the prosecution was allowed to introduce evidence, asserted to be corroborative of credibility, of an occasion when the petitioner, after being told of his right to remain silent, actually remained silent in the face of his daughter's jail house accusation of guilt. Moreover, the prosecutor was permitted to argue that this circumstance "compellingly" proved his guilt, and the court instructed the jury that this circumstance could be considered by the jury as an admission of the petitioner's guilt. Introduction of this evidence was in violation of the United States Constitution. The evidence should not have been introduced, the argument should not have been made, the instruction should not have been given. On the other hand, the defense was denied the ability to introduce evidence, asserted to be contradictory of credibility, that the specifics of the daughter's memory asserted in her trial testimony had in fact been reported in the public media before her testimony. Here again, the prosecutor was permitted to argue, after the evidence had been excluded, that the memory described to the jury could only have been produced by a person who actually witnessed the event. Exclusion of this evidence violated the United States Constitution.

 The State contests these errors and argues that, in any event, any Constitutional error should not affect the verdict as it must be considered legally harmless. This Court must disagree. These errors ineffably skewed the test of credibility presented to the jury in the conduct of this trial. This is a tragic event which cries out for resolution, but it cannot be resolved by a trial where violations of the Constitution have eliminated the necessary presence of fundamental fairness. The conviction must be reversed.

 II. BACKGROUND

 A. Procedural History

 George Thomas Franklin petitions this Court under 28 U.S.C. § 2254 for a writ of habeas corpus. Petitioner was charged on November 28, 1989 with the murder of Susan Nason, a violation of California Penal Code § 187. Petitioner was convicted of first degree murder, following trial by jury, on November 30, 1990 in San Mateo County Superior Court. Petitioner was sentenced to state prison for life on January 29, 1991.

 Petitioner has properly exhausted his state court remedies. He timely appealed to the state court of appeal and contemporaneously filed a writ of habeas corpus in that court. The court affirmed petitioner's conviction and denied his writ petition on the merits on April 2, 1993. People v. Franklin, No. A052683 (1st App. Dist. Div. 1). His petition for rehearing was denied on May 3, 1993. The California Supreme Court denied his petition for review and his writ petition on July 15, 1993.

 B. Factual Background: The Trial

 Susan Nason disappeared shortly after 3 p.m. on September 22, 1969 following a visit to the home of a friend in Foster City. When Nason did not return home as planned, her parents initiated a search and contacted the police at approximately 8 p.m. The search for Nason continued without success until December 2, 1969, when her body was discovered by a "watershed keeper" for the City and County of San Francisco Water Department in the "Crystal Springs Watershed Area" of San Mateo County. During a routine patrol, the keeper stopped at a turnout on the south side of Highway 92 about "a mile and a half west of the Crystal Springs Reservoir." He went to the edge of the turnout and looked down the embankment along a narrow trail descending into thick brush. He noticed clothing and "an old bed springs" on the ground. Upon further examination, he found skeletal remains of the body of a small child in the bushes near the bed springs. He immediately contacted his office, which then notified the sheriff's department of the discovery of the body.

 Subsequent examination of the body at the scene revealed that one hand "had a ring on it" which was crushed and missing the stone. Near the body were found an orthodontic retainer, a "small portion of hair," a rock with hair on it, one shoe, one sock on a foot and another hanging in a bush five to ten feet away. A rock was found "within the folds" of the dress, which had been "pulled up around the waist area." The body was identified as Nason's by dental records. Nason's mother identified the ring, shoe, and dress as items Nason was wearing when she disappeared.

 According to the testimony of a pathologist, Nason died as the result of "blunt force impact trauma" to the rear portion of the skull inflicted by at least two blows with an object, such as the rock found in her dress. Nason's right hand was "quite distorted," with injuries to the soft tissues, loss of some bones and "discoloration on the articular surfaces of the wrist bones." In the opinion of the pathologist, the right hand suffered a "defense-type injury" which occurred during "an attempt to ward off an attack."

 The murder of Susan Nason remained unsolved for twenty years. In January of 1989, Eileen Franklin-Lipsker, one of petitioner's daughters, claimed to have first remembered that she had witnessed the murder of Nason many years before. Franklin-Lipsker was the primary prosecution witness against petitioner. She testified that she saw her father sexually assault and kill Nason, her "favorite playmate," and that she then repressed that memory for twenty years. She was the only eyewitness to the crime. No physical evidence was found tying Franklin to the crime.

 1. Franklin-Lipsker's Testimony

 Franklin-Lipsker testified that on September 22, 1969, when she was eight years old, she and her father picked up Nason in her father's Volkswagen van. She and Nason were playing as her father drove, and her next memory was of seeing the Crystal Springs reservoir off Highway 92 near Half Moon Bay.

 Franklin-Lipsker testified that petitioner parked the van at the turnoff near the reservoir and got in back with the two girls. He then got on top of Nason, held her hands over her head, and began rubbing his pelvis against hers. Nason was "struggling" and "whimpering." Franklin-Lipsker became "very scared." Franklin-Lipsker said she next saw her father outside the van with Nason. He approached Nason as she crouched on the ground crying, then struck her in the head with a rock. Franklin-Lipsker testified that Nason's hand was bloody, with a "smashed" silver ring. She saw some hair that was "no longer attached to the body." Petitioner next tried to remove a mattress from the back of the van, and then went "down below" and began covering up Nason's body.

 Franklin-Lipsker testified that her father told her that she had to forget what happened; that no one would believe her; that she would be blamed; and that he would kill her if she told anyone. Franklin-Lipsker testified to other acts of violence and physical and sexual abuse by her father directed at her and her siblings and mother throughout her childhood. *fn1"

 Franklin-Lipsker testified that in January 1989, the memory of the murder suddenly began to come back to her as she watched her daughter playing on the floor. She first disclosed the memory of the murder to one of her therapists, Kirk Barrett, in June 1989, to her brother George in August of 1989, to her sister Janice in September of 1989, to her mother in October of 1989, to a criminal attorney in November 1989, and then to her husband. Her husband contacted the police. He did so without her knowledge or consent. After four anonymous conversations with the police, she revealed to them her identity and the identity of the murderer.

 Petitioner was arrested for the murder of Susan Nason on November 28, 1989. The police arrived at petitioner's house and advised him that they "were investigating an old homicide case involving a subject by the name of Susan--Susan Nason." Petitioner responded, "Have you talked to my daughter?"

 2. Expert Testimony

 Both the prosecution and the defense presented expert testimony regarding whether it was plausible that Franklin-Lipsker saw her father murder her best friend, and then involuntarily repressed the memory for twenty years. The prosecution's expert witness was Dr. Lenore Terr. Petitioner's expert witnesses were Dr. David Spiegel and Elizabeth Loftus, Ph.D.

 a. Dr. Terr's Testimony

 On cross-examination, Dr. Terr described a number of instances where children had false visual memories about accidents or homicides.

 b. Dr. Spiegel's Testimony

 Dr. Spiegel, a psychiatrist and Stanford University professor, testified that people who have suffered trauma may block out the memory of the traumatic events. Dr. Spiegel stated that he would expect a person who had repressed the memory of a murder to experience nightmares about the murder and behavioral changes. He also testified that people with repressed memories tend to avoid those things that remind them of the repressed memory. *fn3"

 Dr. Spiegel testified that repressed memories can resurface years later. He testified that retrieval of false memories is also common: people may unconsciously distort their thoughts, memories or ideas when something bad happens and falsely-believe that someone they dislike is responsible for the bad event.

 c. Dr. Loftus' Testimony

 Dr. Elizabeth Loftus, a psychology professor at the University of Washington, testified that there is little if any relationship between the confidence of a person in her recollection of a particular event and the accuracy of that recollection. She noted that repeated retellings of an untrue memory can cause the teller to become increasingly confident that the memory is true. She testified that a person's memory can become "contaminated" by "post-event information." Contamination from post-event information is more likely to occur if a long period of time has passed since the event.

 3. The Credibility of Franklin-Lipsker's Testimony

 The credibility of Franklin-Lipsker's testimony about her repressed memory of the events of September 22, 1969 was the primary issue at petitioner's trial. The overriding thrust of the defense was to challenge the credibility of that testimony, including the possibility that Franklin-Lipsker intentionally or unintentionally fabricated her story, or that her memory was a by-product of hypnosis or otherwise an example of "memory contamination."

 Petitioner's counsel argued, based on the expert testimony, that Franklin-Lipsker's account of the murder might be a conscious or unconscious fantasy: Franklin-Lipsker knew Nason had been murdered and believed her father was violent and abusive; why should she not then ask herself, "Did Dad do this, too? Did Dad take away my friend?"

 Petitioner also raised the possibility that Franklin-Lipsker's husband may have affected Franklin-Lipsker's memory. Barry Lipsker, a "controlling person," had "an intense dislike" for petitioner. The was a "history of animosity" between Barry Lipsker and petitioner. Barry Lipsker was the one who initially encouraged Franklin-Lipsker to come forward with her accusation against her father. In fact, he was the one who first contacted the police about Franklin-Lipsker's memory, without her knowledge. Barry Lipsker kept a file of articles about the Nason murder in the couple's home, and made a videotape of a pretrial "Today" show episode in which Franklin-Lipsker was interviewed about the case. Franklin-Lipsker testified that she never looked at any of the articles Barry collected, but that Barry tried to read her articles about the case as many as fifty time. The defense subpoenaed Barry Lipsker, but he declined to return from Switzerland to testify at trial.

 The defense also suggested that Franklin-Lipsker may have been motivated to accuse petitioner due to the financial benefit she received from a "book and movie deal" concerning the case which she signed in late June or early July 1990.

 The defense further raised the possibility that Franklin-Lipsker's testimony was based on a false memory, triggered while under hypnosis or by some other means. George Franklin Jr., petitioner's son, testified that Franklin-Lipsker had told him in August 1989 that she had remembered their father committing a murder, and that the memory had surfaced under hypnotherapy. In November of 1989, Franklin-Lipsker retracted her statement about hypnotherapy and told George Franklin not to mention hypnosis if called to testify. *fn4" Franklin-Lipsker admitted that she had made statements about being hypnotized to her brother and mother, but said that she had lied to her brother and mother in making such statements.

 The defense also pointed up inconsistencies between Franklin-Lipsker's testimony at trial and her first report of the crime to the police in November 1989. At trial, Franklin-Lipsker testified that she thought she remembered that her sister Janice was in a nearby field when she and her father picked up Nason. Prior to trial, she had told the police and others that her sister Janice was in the van with them, and that her father had told Janice to get out of the vehicle when they picked up Nason. Janice testified at trial, however, that she remembered the day Nason disappeared, but did not recall seeing her sister Eileen, Nason, or her father that day.

 Franklin-Lipsker originally told the police in November 1989 that her father drove his van into the woods before stopping to rape and murder Nason. At the trial, she described the assault as occurring at a turnout off Highway 92.

 Franklin-Lipsker testified that the changes in her testimony were due to an improvement in her memory over time, whereas the defense claimed that she may have consulted media reports. Franklin-Lipsker denied that she consulted any media reports on the murder, with the ...


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