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‘Repressed Memory’ Conviction Overturned

New York Times

A federal judge in San Francisco on Tuesday overturned the conviction of a California man on murder charges that were based on his daughter’s testimony that she had seen him kill her best friend in 1969 but had repressed the memory for two decades.

Judge Lowell Jensen of U.S. District Court said the judge in the trial of the man, George Thomas Franklin, in 1990 in San Mateo County Superior Court had made two serious constitutional errors that “had a substantial and injurious effect on the jury’s verdict.”

First, the judge said, the prosecution wrongly was allowed to introduce evidence of a visit Franklin had received in jail from his daughter, Eileen Franklin-Lipsker, whose recovered memory formed the basis of the trial.

During the visit, FranklinLipsker urged her father to “tell the truth” about killing her 8-year-old friend, Susan Nason, and Franklin remained silent. Jensen said the prosecution should not have been allowed to argue that his silence was proof of guilt.

Second, Jensen said, the trial judge, Thomas Smith, had wrongly prevented Franklin’s lawyers from introducing evidence that the details of the killing that FranklinLipsker recalled had been reported in the media.

The prosecution argued at trial that only an eyewitness would have known the specifics of the murder.

“These errors ineffably skewed the test of credibility presented to the jury, and the conduct of this trial,” Jensen wrote.

“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.”

At a news conference, Franklin’s lawyer, Dennis Riordan, said he and his client felt a tremendous sense of relief and vindication in a case that he called Kafkaesque.

The Franklin-Lipsker case was the first murder prosecution in the nation based on a repressed memory of a crime.

Franklin-Lipsker, who was 9 at the time of the killing, said the memory of her red-haired, blue-eyed friend’s murder came to her suddenly in 1989, as she watched her red-haired, blue-eyed daughter.

Susan disappeared in September, 1969, and her body was found three months later in a ravine south of San Francisco.

Franklin, a retired firefighter, was convicted of murder in the first degree in 1990 and sentenced to life in prison. The California Court of Appeal upheld the conviction in 1993, and the California Supreme Court declined to hear an appeal.

The federal judge Tuesday vacated the conviction, giving the San Mateo County district attorney 90 days to decide whether to prosecute the case for a second time.