ABLEnews Extra

                    Fundamentally Unfair

     [The following file may be freq'd as FMS50405.* from
     1:109/909; 275/14; and other BBSs that carry the
     ABLEFiles Distribution Network (AFDN) and--for a week--
     ftp'd from FTP.FIDONET.ORG on the Internet. Please allow a
     few days for processing.]

     N.B.--The following story addressing critical issues of
     justice concerns a trial involving a heinous crime and is
     not intended for children.

A retired Foster City firefighter, convicted of a child's murder on
the basis of his own daughter's recovered memories of the 1969 event,
may go free.
   
US District Court Judge Lowell Jensen ruled Tuesday that George
Franklin's trial was unfair and overturned his conviction. But
Jensen's ruling was not based on the daughter's repressed-memory
testimony, the trial's most controversial and precedent-setting
aspect.
   
Instead, Jensen said, the jury that heard the Franklin case in 1990
should not have been told that it was tantamount to a confession when
in a jailhouse visit Franklin refused to answer his daughter Eileen's
plea to confess.
   
Jensen also ruled that jurors should have been allowed to read
newspaper articles about the murder of 8-year-old Susan Nason to help
them determine whether Eileen Franklin-Lipsker could have learned from
them details of the crime.
   
"This Court finds that violations of the Constitution in this trial
had a substantial and injurious effect on the jury's verdict, that the
risk of an unreliable outcome in this trial is unacceptable, and that
this verdict was the product of a trial that was not fundamentally
fair," Jensen wrote.
   
Franklin was the first person convicted on the basis of
repressed-memory testimony. In the years since, civil and criminal
cases based on repressed-memory testimony have greatly increased, but
researchers have begun to seriously question such testimony's
validity.
   
In his 51-page order, Jensen said repressed-memory testimony could be
assessed by jurors like any other testimony by a witness. But, he
said, testimony in this case had been unfairly bolstered by improper
and misleading testimony that Franklin had admitted the killing.
   
Jensen also said he questioned "whether the evidence against
(Franklin) was overwhelming." He said there were numerous
contradictions in Franklin-Lipsker's testimony, and no physical
evidence against her father.
   
Franklin, 55, has been serving out a life sentence in a prison in San
Luis Obispo, and was scheduled for a parole hearing in July. "He felt
extraordinary relief," said his appeals attorney, Dennis Riordan.
   
Franklin-Lipsker was unavailable for comment.
   
   Prosecutor disappointed
   
San Mateo County prosecutor Steve Wagstaffe said Jensen's ruling was
surprising. "We are extremely disappointed," he said.
   
State attorneys have 30 days to file an appeal of Jensen's ruling; if
they decide not to appeal, then county prosecutors have 90 days to
decide whether they will retry Franklin. Wagstaffe said he will ask
that bail be set at $2 million.
   
They will find out how witnesses feel about going through the trial a
second time, Wagstaffe said. And he acknowledged that the issue of
repressed memory's scientific validity may play more of a role this
time. "There has been quite a bit occurring in the field since then
and we will study carefully whether a conviction could be obtained on
a retrial."
   
An elated Riordan said he would petition to have Franklin released on
bail within two weeks. "I feel a tremendous sense of vindication," he
said. "This ruling was not about a technicality. It was literally
about a jury being misled."
   
"The grounds are not surprising," said Harry McLean, an award-winning
author who wrote a book about the case. "I know from my research with
the jury that her testimony on the lack of response was very important
to them."
   
   Widely publicized case
   
The Franklin case has had more than its share of publicity since
Franklin-Lipsker made an anonymous phone call to the San Mateo County
Sheriffs Department in 1989. Franklin-Lipsker also wrote a book, the
story was made into a made-for-TV movie starring Shelley Long, and
Franklin-Lipsker has made appearances on a series of talk shows,
including Oprah, Larry King Live, and most recently on an NBC Dateline
segment about repressed memory.
   
What began it all was the disappearance of Susan Nason, a red-haired,
blue-eyed, freckle-faced chum of Franklin-Lipsker. They lived near
each other in Foster City. Late one afternoon Susan went to a
neighbor's house to return a pair of sneakers and did not come home.
Her skeleton was found two months later by a county employee near the
Crystal Springs Reservoir.
   
A coroner testified that Susan died most likely from a blow to her
head that fractured her skull. The state of her body made it
impossible to determine much more.
   
The murder went unsolved for almost exactly 20 years, until
Franklin-Lipsker, married and the mother of two children, called to
say she had begun to remember seeing her father rape and kill Susan.
   
   What sparked memories
   
The memory was triggered one day in her Los Angeles home, she said, as
she looked at her own daughter, who bears a striking resemblance to
Susan.
   
As time passed, Franklin-Lipsker also said she remembered a series of
sexual assaults her father made on her.
   
Prosecutors took the case to trial, with very little direct evidence
against Franklin except his daughter's recollections. What the jurors
heard most dramatically from Franklin-Lipsker was the series of images
she said she remembered: Susan's cries of terror, the look she gave
Franklin-Lipsker just before her head was smashed by a rock, George
Franklin's threats to put his daughter "away" if she told what she had
seen.
   
Franklin's trial attorney, Douglas Horngrad, had argued strongly with
the trial judge, Thomas McGuinn Smith, that Franklin-Lipsker could
easily have known the key facts of the crime from newspaper articles
written in 1969. Smith's ruling against allowing the jury to see the
stories was "the most preposterous ruling" he had ever seen, Horngrad
said.
   
"The icing on the cake was when the prosecutor was allowed to argue,
How could she have known all these facts if she wasn't there?'"
Horngrad said. "What the prosecution was allowed to do was to argue
the absence of evidence which she had suppressed."
   
   Details of jail visit
   
The jailhouse "confession" scene took place shortly after Franklin was
arrested and his daughter visited him in jail.
   
"I told him when I was a child he had always told me that the truth
shall set you free and that I think that he meant that for both of us,
not just for me, and that I thought that he should tell the truth,"
Franklin-Lipsker testified at the trial. His response was to
wordlessly point to the sign above him that notifies jail inmates that
conversations are monitored.
   
Horngrad said he had advised Franklin not to speak to his daughter if
she came to the jail. "We knew that if he saw her, she could claim
that he said anything. We trusted her as far as we could throw her."
   
Franklin has protested his innocence then and now, Horngrad said. "I
continue to tell him to have faith in the system and I think today
those feelings are vindicated."
   
[Dad in Memory-recall Case May Get Off, S.L. Wykes, San Jose Mercury
News, April 5, 1995]

ABLEnews Editor's Note: Note the prejudicial headline "get off" used
to describe the judicial process for a defendant whose guilt has not
been proven beyond a reasonable doubt in a manner consistent with the
Constitution. For further coverage of the Franklin case, see
FMS50410.* wherever ABLETEXT files are found. For further background
on false memory syndrome, see FMS50130.*.

     Brought to you as a public service by ABLEnews. A
     Fidonet-backbone echo featuring disability/medical       
     news and information, ABLEnews is carried by more than       
     500 BBSs in the  US,  Canada, Australia, Great Britain,     
     Greece, New Zealand, and Sweden. Available from Fidonet      
     and Planet Connect, ABLEnews is gated to the ADANet,       
     FamilyNet, and World Message Exchange networks.      
     (Additional gating welcome on request.)
                                     
     ABLEnews text files--including our digests Of Note and
     MedNotes (suitable for bulletin use) are disseminated via
     the ABLEFile Distribution Network, available from the
     filebone, Planet Connect, and ftp. fidonet.org

...For further information, contact CURE, 812 Stephen St.,
Berkeley Springs, WV 25411. 304-258-LIFE/258-5433
(earl.appleby@emailworld.com
