Man Won’t Be Retried in Repressed Memory Case

SAN FRANCISCO —  Six years after his daughter’s recovered memory helped convict George Franklin Sr. of murdering her childhood friend, San Mateo County prosecutors announced Tuesday that Franklin will be set free today because they do not have enough evidence to retry him for the 1969 murder.

San Mateo County Dist. Atty. Jim Fox told reporters that his decision not to retry Franklin after an appellate court judge threw out his 1990 conviction last year was “very difficult.” Prosecutors still believe Eileen Franklin-Lipsker’s recollection of the murder, Fox said, but “do not believe we could meet our burden in a jury trial.”

Franklin’s attorney, Douglas Horngrad, said the prosecutor’s decision vindicates his client, who has always maintained his innocence.

“George has been in prison or jail for six years, seven months and four days” since his arrest, Horngrad said. “It is an absolute travesty and a tragedy. George is going to get out of jail tomorrow and put his life back together. This has been a Kafkaesque experience for him.”

Horngrad declined to say whether Franklin will file suit against the state for wrongful imprisonment, but said his client will “consider all his options” after taking some time to put his life back together.

Prosecutors said that testimony given by Janice Franklin, Eileen’s sister, in a court hearing last month was particularly damaging to their case. Janice Franklin said that she and her sister had been hypnotized before their father’s trial to enhance their memories of events surrounding the death.

In 1989, Eileen Franklin-Lipsker, then 29, told investigators that she had suddenly remembered watching her father molest and murder 8-year-old Susan Nason, who lived on the same block in Foster City as the Franklin family. Franklin-Lipsker said her father picked her and Susan up in his Volkswagen van in September 1969 and drove them to a remote spot. There, Franklin-Lipsker recalled, her father molested Susan in the back of the van before smashing the girl’s head with a rock because she would not stop crying.

Susan’s body was discovered three months after she disappeared, under a mattress near a reservoir several miles from her home.

In dramatic testimony, Franklin-Lipsker said that the memory of the incident returned to her as she watched her own daughter, who was close to Susan’s age, at play in their Canoga Park home in 1989.

Largely on the basis of Franklin-Lipsker’s memory of the crime, Franklin was convicted of first-degree murder in 1990 and sentenced to life in prison with possibility of parole. It was the first time that repressed memory testimony was used to convict someone of a crime. Such memories have since come under widespread criticism as unreliable, and psychology experts are bitterly divided over their authenticity.

The case against Franklin began to unravel in April 1995, when U.S. District Court Judge Lowell Jensen overturned his conviction, saying he had been denied a fair trial. Jensen faulted the trial judge, Superior Court Judge Thomas M. Smith, for refusing to let defense attorneys introduce newspaper articles about Susan’s murder that they said could have provided Franklin-Lipsker with details of the crime that she later claimed to have dredged from repressed childhood memories.

Jensen also said that Smith should not have allowed Franklin-Lipsker’s testimony that she visited her father in jail and that he had pointed to a sign that said “conversations are monitored” when she pleaded with him to confess to the murder. The prosecution portrayed Franklin’s silence as tantamount to a confession. The jury was not told that the prosecution arranged Franklin-Lipsker’s visit.

But even after his conviction was overturned last year, Franklin, 57, was kept in jail. Prosecutors filed several appeals of Jensen’s decision, all of which were rejected.

Also, Franklin-Lipsker had told investigators in 1990 that she remembered her father committing two more murders, Horngrad said. Her memory of one of the murders was so sketchy that investigators could not link it with any unsolved crime.

But early this year, Horngrad said, prosecutors considered charging Franklin with the rape and murder of 18-year-old Veronica Cascio, who disappeared from her Pacifica home Jan. 7, 1976.

Franklin-Lipsker identified a picture of the teenager, whose body was found on a Pacifica golf course. She told prosecutors that she remembered witnessing her godfather, Stan Smith, rape Cascio and seeing her father murder her.

But Franklin’s defense attorneys uncovered evidence in May that Franklin was at a union meeting at the time of the murder. DNA tests of semen found on Cascio proved that neither Franklin nor Smith could have raped Cascio, Horngrad said.

The final blow to the prosecution came with Janice Franklin’s testimony about being hypnotized before testifying against her father. In California, testimony influenced by hypnotic suggestion is inadmissible.

It was not until Tuesday, however, that prosecutors formally abandoned their efforts to retry Franklin for the Nason murder.

Prosecutors hung on as long as they did, Deputy Chief Dist. Atty. Stephen Wagstaffe said, because “this is a case where six years ago, 12 people in our community determined that there was enough evidence to convict, and we have not changed our view that the evidence was valid and appropriate.”

Wagstaffe said it is “heartbreaking” that Franklin will go free. “I don’t think we’ll ever see a case like this again, nor do we want to,” he said.

Horngrad said Franklin’s life was destroyed by his daughter’s charges and his murder conviction.

“He’s been flattened like a pancake” by his years in prison, Horngrad said. “He lost everything he had earned in the world. He lost his house, his reputation, his liberty--all his worldly possessions.

“The broader lesson here is that you cannot--nor should you--charge someone criminally, deprive them of their liberty, based on so-called repressed memory,” Horngrad said in a telephone interview from Idaho, where he is vacationing.

During his murder trial, witnesses portrayed Franklin, a father of five, as a bizarre character. Janice Franklin testified during the first trial that her father had physically and sexually abused her. Leah Franklin, who divorced him in the 1970s, also testified that her husband was physically abusive.

Judge Smith called Franklin a “wicked and depraved” man in sentencing him to life in prison. Franklin’s defense did not contest the prosecution’s portrayal of their client as a man obsessed with child pornography.

But Leah Franklin, after testifying against her husband in the 1990 trial, later said that she did not believe in the concept of repressed memory or in her daughter’s account of Susan Nason’s murder.

A made-for-television movie and two books were written about the case, including one by Franklin-Lipsker.

Fox said the San Mateo County prosecutor’s office contacted both Franklin-Lipsker, who now lives out of state, and Susan Nason’s parents, who still live in the same Foster City home, before announcing that Franklin will not be retried.

“They are terribly disappointed with this decision, but they absolutely understand it,” he said.