312 F.3d 423 (9th Cir. 2002), 01-15052, Franklin v. Fox

Docket Nº:01-15052.
Citation:312 F.3d 423
Party Name:George Thomas FRANKLIN, Plaintiff-Appellant, v. Jim FOX; Martin Murray; Robert Morse; Bryan Cassandro; John Cuneo, Sergeant; Eileen Franklin-Lipsker, Defendants-Appellees.
Case Date:November 27, 2002
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit

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312 F.3d 423 (9th Cir. 2002)

George Thomas FRANKLIN, Plaintiff-Appellant,


Jim FOX; Martin Murray; Robert Morse; Bryan Cassandro; John Cuneo, Sergeant; Eileen Franklin-Lipsker, Defendants-Appellees.

No. 01-15052.

United States Court of Appeals, Ninth Circuit

November 27, 2002

Argued and Submitted Dec. 6, 2001.

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Dennis P. Riordan, Riordan and Rosenthal, San Francisco, CA; Andrew C. Schwartz, Casper, Meadows, and Schwartz, Walnut Creek, CA, for the plaintiff-appellant.

James M. Wagstaffe and Pamela Urueta, Kerr and WagstaffeP, San Francisco, CA, for defendants-appellees Martin Murray, Robert Morse, Bryan Cassandro, and John Cuneo.

Richard S. Diestel, Bledsoe, Catheart, Diestel, Livingston and Pedersen, San Francisco, CA, for defendant-appellee Eileen Franklin-Lipsker.

Appeal from the United States District Court for the Northern District of California; Charles R. Breyer, District Judge, Presiding. D.C. No. CV-97-02443-CRB.

Before: B. FLETCHER, BOOCHEVER and FISHER, Circuit Judges.

BETTY B. FLETCHER, Circuit Judge:

In 1989, Defendant Eileen Franklin-Lipsker ("Franklin-Lipsker") informed the police that she had been an eyewitness to the 1969 sexual molestation and murder of her eight-year-old best friend, Susan Nason. She implicated her father, Plaintiff George Franklin ("Franklin"), in the twenty-year-old unsolved case; a San Mateo County, California jury convicted him of first degree murder. Franklin served five years of a life sentence before a federal district court granted him a writ of habeas corpus due to unconstitutional errors in his state court trial. Franklin v. Duncan, 884 F.Supp. 1435 (N.D.Cal.1995). We affirmed. Franklin v. Duncan, 70 F.3d 75 (9th Cir. 1995) (per curiam) (adopting the district court opinion and supplementing the factual record).

On the heels of his release, Franklin sued in federal district court, alleging claims arising under 42 U.S.C. § 1983 and state law. See Franklin v. Fox, 107 F.Supp.2d 1154 (N.D.Cal.2000). He appeals the district court's final order of summary judgment in favor of defendants with respect to two claims: (1) Franklin alleges that Franklin-Lipsker conspired with detectives Robert Morse ("Morse") and Bryan Cassandro ("Cassandro") to arrest him without probable cause in violation

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of his Fourth and Fourteenth Amendment rights by, among other things, relying on Franklin-Lipsker's hypnotically-induced memories; (2) he further claims that Franklin-Lipsker conspired with Assistant District Attorney Martin Murray ("Murray") and jail official John Cuneo ("Cuneo") to violate his Sixth Amendment rights by using Franklin-Lipsker as an agent of the government to attempt to elicit a confession outside the presence of Franklin's counsel.

The district court entered summary judgment for the defendants on these claims1 pursuant to Federal Rule of Civil Procedure 54(b).2 See James v. Price Stern Sloan, Inc., 283 F.3d 1064, 1068 n. 6 (9th Cir. 2002). We have subject matter jurisdiction pursuant to 28 U.S.C. § 1291. We affirm the district court with respect to all claims and all defendants.


1969: Susan Nason's Murder

Eight-year-old Susan Nason ("Susan") disappeared after school on September 22, 1969. Just over two months later, a San Francisco Water Department employee found the girl's broken, decomposed remains in a ravine off Highway 92, a route not far from Susan's home that leads to Half Moon Bay on the Pacific coast. She had been bludgeoned. Police did not find her killer.

1989: Eileen Franklin-Lipsker Implicates Her Father

On November 17, 1989, a caller identifying himself only as "Barry" told the police that his wife had witnessed a murder at the hands of someone she knew well when she was just eight years old.3 Barry—in reality Barry Lipsker, Franklin-Lipsker's then-husband—expressed his wife's extreme reluctance to come forward with her information because the murderer had threatened her before and because she feared that, even were he convicted, he would only serve a short sentence. The inspector who took the call explained repeatedly that he could not make any concrete representations about what form an investigation or trial would take without understanding the case and all its evidence. In a second call on the same day, Barry's wife joined the two men on the phone. The inspector informed her about what her role might be as a witness and what she might expect if she decided to report the crime.

During a third call three days later, Barry relayed his wife's continuing hesitation

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to report what she had seen as a child. Barry informed the inspector that the killer was a family member and that he had raped his own children. In the span between calls, the couple had spoken to family members who reportedly feared disruption and danger should the matter come to light. Barry reiterated fears that the killer would know his accuser's identity but would not go to jail. Attempting to reassure the caller, the inspector told him that prosecutors would not pursue a case they did not believe was strong: "[T]hey like a good case, and they're not gonna go unless they have a good, solid case, and they don't like sixty-percent cases. They like them about ninety-five, ninety-nine or a hundred percent . . . a sixty-percent case probably would never be taken into court."

On November 21, 1989—four days after the initial call—Barry and his wife (defendant Franklin-Lipsker, at that point referring to herself as "Mrs. Barry") called to give the inspector details about the crime, though not the perpetrator's name. The couple hoped the sheriff's office could locate whatever evidence might have remained in county files about the crime; Franklin-Lipsker would not divulge the killer's identity without some assurance that any possible prosecution would not rely solely on her testimony. In order to allow the inspector to consider whether she could, in fact, have been an eyewitness, Franklin-Lipsker told him the following:

• She had been in a car with the perpetrator when they picked Susan up across the street from her Foster city home.

• The threesome drove to "the woods . . . out towards Half Moon Bay." It was a pleasant, "autumnal" day.

• The killer raped Susan in the back of the car.

• After the rape, Susan was sitting on something elevated a "little tiny hill, or maybe it was a rock," fifteen to twenty feet from the car.

• The killer struck Susan on her head with a rock. Susan raised her hand to her head before the killer landed a second blow with the rock.

• She could not remember Susan's clothes, but thought she was wearing a dress. She recalled that the perpetrator did not remove Susan's clothes to rape her but simply pushed up her dress.

• The perpetrator made her help him put a mattress over the dead girl. He then pushed her to the ground and told her that if she told anyone what had happened, no one would ever believe her and that "they would say that I was a part of it. And that they would put me away . . . and that he would kill me if I ever talked about it."

Franklin-Lipsker promised to give the inspector all of the details if the ones she had provided proved consistent with the case file.

The next day, November 22, 1989, the inspector and Deputy District Attorney Murray informed Franklin-Lipsker that her information was "excellent" and "connect[ed] to everything" they knew about the case at that point. The inspector told Barry Lipsker, "all the information that we found leads us to believe that your wife was an eyewitness, she's being very truthful with us." Murray reassured Franklin-Lipsker, however, that the county would evaluate all the evidence and would not contact the suspect "until we make a determination that this is a prosecutable case." He cautioned that he could not guarantee a conviction and stressed that it was his ethical duty "not to file a criminal charge against someone unless I believe that there is sufficient evidence to prove beyond a reasonable doubt, the person's guilt." Franklin-Lipsker told Murray she had never read newspapers about the case

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and had not discussed it with other people. She understood that if all her information was public knowledge, it would not be useful. Murray told her she had described details he believed "only a person who saw the crime would know." Both Murray and Franklin-Lipsker acknowledged the importance of leaving Franklin-Lipsker's recollection untainted; Franklin-Lipsker, in fact, got angry at her husband on the call when he asked for details about the crime.

Later the same day, in a sixth phone call, Franklin-Lipsker finally gave police her name and agreed to an in-person interview with Detectives Morse and Cassandro. She also revealed that the person she had seen kill Susan Nason was her father, George Franklin.

Franklin-Lipsker met with Morse and Cassandro on November 25, 1989. During their interview of her, Franklin-Lipsker offered a more detailed account of her recollection. She reported the following:

• Franklin was driving Franklin-Lipsker and her sister, Janice, to school in his Volkswagen van. They picked Susan up and Franklin made Janice get out of the car. It was a clear, fall day.

• Franklin told the two girls they were going to play "hookie." Franklin-Lipsker thought it was possible that the event took place after lunch rather than in the morning.

• The trio rode past the reservoirs, "like the way you would drive up towards Half Moon Bay." Franklin-Lipsker believed they were in the woods on a fire road. She recalled that the road was unpaved...

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