Franklin v. Duncan, C-94-1430 DLJ.

CourtUnited States District Courts. 9th Circuit. United States District Courts. 9th Circuit. Northern District of California
Citation884 F. Supp. 1435
Docket NumberNo. C-94-1430 DLJ.,C-94-1430 DLJ.
PartiesGeorge Thomas FRANKLIN, Petitioner, v. William DUNCAN, Warden, Respondent.
Decision Date04 April 1995

884 F. Supp. 1435

George Thomas FRANKLIN, Petitioner,
William DUNCAN, Warden, Respondent.

No. C-94-1430 DLJ.

United States District Court, N.D. California.

April 4, 1995.

884 F. Supp. 1436
884 F. Supp. 1437
Dennis P. Riordan, of Riordan & Rosenthal, San Francisco, CA, for petitioner

Deputy Atty. Gen. Bruce Ortega, San Francisco, CA, for respondent.


JENSEN, District Judge.

On December 21, 1994, the Court heard arguments on George Thomas Franklin's petition for a writ of habeas corpus. 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.

884 F. Supp. 1438


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

884 F. Supp. 1439
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.


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

884 F. Supp. 1440
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...

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