Metropolitan News-Enterprise


Friday, November 29, 2002


Page 3


Suit by Man Charged With Murder in Repressed Memory Case Rejected


From Staff and Wire Service Reports


The Ninth U.S. Circuit Court of Appeals agreed with a district judge yesterday that a man convicted of murder on the basis of his daughter’s repressed-memory testimony has no claim for civil rights damages against the daughter or any of several officials involved in the prosecution of the case.

George Franklin was convicted in 1990 after his daughter, Eileen Franklin-Lipsker, said more than 20 years after the murder she recalled witnessing her father crush 8-year-old Susan Nason’s skull with a rock in 1969.

Franklin, a former firefighter, spent 6 1/2 years in prison before a federal judge overturned his conviction in 1995, saying jurors were improperly told that Franklin confessed by remaining silent when his daughter accused him during a jailhouse visit. The judge also said the defense should have been allowed to prove that details Franklin-Lipsker claimed to remember firsthand were contained in newspaper articles.

After his release, Franklin sued his daughter and her therapist, as well as prosecutors, detectives and expert witnesses in San Mateo County, where he was convicted. Franklin said they “trampled on my rights and the truth.”

The claims against the therapist and an expert witness were thrown out earlier by U.S. District Judge Charles Breyer of the Northern District of California, a ruling that was upheld two years ago on an interlocutory appeal.

Yesterday’s Ninth Circuit panel—Senior Judges Betty B. Fletcher and Robert Boochever and Judge Raymond C. Fisher—agreed with Breyer that retired investigators Bob Morse and Bryan Cassandro are entitled to qualified immunity. The two had reason to believe in good faith that there was probable cause for the arrest, because there was corroborating evidence suggesting that Franklin was a violent pedophile, Fletcher wrote for the panel.

Fletcher also agreed with the district judge that San Mateo County Deputy District Attorney Marty Murray and Sheriff’s Sgt. John Cuneo were immune from liability for violating Franklin’s Sixth Amendment right to counsel by encouraging Franklin-Lipsker to try to obtain a confession during her jailhouse visit.

While the court’s prior ruling throwing out Franklin’s conviction made clear that his right to counsel was violated, Fletcher explained, Murray and Cuneo are immune because the Ninth Circuit law on the subject was not clearly established before that ruling. Cuneo, Fletcher added, cannot be held liable because there was no evidence he knew what Murray was up to.

The case is Franklin v. Fox, 01-15052.


Copyright 2002, Metropolitan News Company