FOSTER CITY, Calif. — In the annals of criminal law, there has never been anything quite like the case of the People vs. George Thomas Franklin Sr.
Franklin, a craggy-faced middle-aged man, was living near Sacramento in 1989 when his grown daughter, Eileen Franklin-Lipsker of Canoga Park, came forward and told an incredible tale.
As a child 20 years earlier, she said, she witnessed her father rape her childhood friend, 8-year-old Susan Nason, then smash the little girl's skull with a rock. Even moreastonishing, Franklin-Lipsker said she had repressed the memory for two decades, recovering it only after her own daughter neared Susan's age.
Armed with Franklin-Lipsker's story, San Mateo County prosecutors reopened the long-forgotten murder and won a conviction in 1990. Superior Court Judge Thomas M. Smith denounced Franklin as "wicked and depraved," and sentenced the onetime firefighter to life in prison. It was a first. Never before had recovered memory been used in a criminal prosecution.
Franklin remains in prison today. But the case against him seems to be unraveling. U.S. District Judge Lowell Jensen, appointed to the bench by President Ronald Reagan in 1986, reversed the conviction this year, concluding that "the risk of an unreliable outcome in this trial is unacceptable."
San Mateo County Dist. Atty. Jim Fox is expected to decide within a month whether to try Franklin again or allow his release. But even as prosecutors remain convinced of Franklin's guilt, they know that persuading a jury beyond a reasonable doubt that Franklin committed the murder 26 years ago will be far more difficult the second time.
"Let's be honest, in the five years since the conviction, there is a whole lot more skepticism about repressed memory," said Deputy Atty. Gen. Bruce Ortega, who argued the prosecution's case on appeal.
The crucial question facing prosecutors is whether a jury would trust the reliability of repressed memories enough to win a conviction. Mental health experts are divided over whether recollections called up years after an event are real and numerous recantations in similar cases in the years since the Franklin conviction have fortified the doubters.
"There is no good scientific support for it," said Dr. Elizabeth Loftus, University of Washington professor of psychology. "We should not be dragging people through the courts on folklore."
Loftus testified for the Franklin defense in the first trial, and since has joined the ranks of the harshest critics of the recovered memory theory. But like many others, she wants a Franklin retrial, hoping it will help resolve the debate.
"The psychotherapy community is so viciously divided on the subject, and that vicious division may play itself out in the trial," Loftus said.
Before making their decision on whether to retry Franklin, San Mateo County prosecutors are studying the latest science on repressed memory and talking to experts.
"From the beginning, we felt the man did commit the crime," Chief Deputy Dist. Atty. Stephen Wagstaffe said. "But you can never take a case to trial unless there is reasonable probability that the jury will return a verdict of guilty."
For all the problems, there are powerful reasons for a retrial, not the least of which is the attention the case attracted. Franklin-Lipsker's story has been the focus of two books, including one she coauthored, plus chapters in other books, and a made-for-TV movie. Most important, if they drop the case, prosecutors would be acknowledging that they discount a story that kept a man in prison for five years.
"Politically, they've got to retry it," Harry Maclean, a lawyer who wrote one of the Franklin books, "Once Upon a Time." "They're going to give it to the jury, and let the jury decide. There's no way to back off."
When the story began in September, 1969, the Nasons and the Franklins lived a few doors from one another in Foster City, then a quiet tract populated by young families and lined with inexpensive homes built on bay fill. Developers tried to make it more idyllic by carving a series of lagoons.
To the families there, the neighborhood radiated safeness.
Susan Nason and Eileen Franklin were third-graders at a school down the block from their homes. One autumn afternoon, Susan's mother sent the child on a brief errand. She never returned.
The little girl's remains were found months later, left under an old mattress, near Crystal Springs Reservoir about 15 miles west of Foster City. A ring on her finger was bent, suggesting she had tried to ward off blows. What leads there were dried up over time.