Conviction in Death of Daughter’s Playmate Upheld

A state appeals court Monday upheld the murder conviction of a man whose daughter said she suddenly remembered the 20-year-old killing of her playmate while looking at her own child.

Despite finding a violation of George T. Franklin Sr.’s right against self-incrimination, the 1st District Court of Appeal ruled that he was given a fair trial in 1990 for the 1969 fatal beating of Susan Nason, 8, of San Mateo. Franklin, now 53, was sentenced to life in prison.

The killing was unsolved for two decades until Franklin’s daughter, Eileen Franklin-Lipsker, said she recalled it in January, 1989, while looking into the eyes of her 7-year-old daughter. Her testimony, bolstered by psychiatric evidence about repressed memories, was the heart of the prosecution’s case.

The court did not rule on Franklin’s challenge to his conviction based on statements Franklin-Lipsker made in her book about the case, and a statement by her sister about Franklin-Lipsker’s exposure to media accounts of the killing. But Monday’s 3-0 ruling examined most of the issues raised by defense lawyers.

The issues included a dispute over Franklin-Lipsker’s jailhouse visit to her father after his arrest. She testified that she referred to his guilt and asked him to confess, but he remained silent and pointed to a sign saying conversations might be monitored.

San Mateo County Superior Court Judge Thomas McGinn Smith told jurors they could consider Franklin’s silence as a possible admission of guilt. The appeals court said Smith’s ruling was wrong but concluded that it could not have affected the verdict.

In pointing to the sign, Franklin “was relying on his privilege against self-incrimination,” which was violated when his exercise of his right to remain silent was used as evidence of guilt, said the opinion by Justice William Newsom. But he said the evidence was “harmless beyond a reasonable doubt” because the prosecution case was so strong.

Franklin-Lipsker’s testimony about the murder was “convincing, corroborated--particularly by the physical evidence associated with the murder--and credible,” Newsom said.

Defense lawyer Dennis Riordan said he disagreed with the court’s conclusion that the constitutional violation was harmless, and expected federal courts to have the last word. “Federal law recognizes that because of the political pressures that state courts are subjected to, they cannot be trusted to be the final judges of whether a new trial is required under the federal Constitution,” Riordan said.