Harry MacLean's vindication arrived on April 4 from San Francisco--a federal district judge overturned the 1990 conviction of George Franklin, who'd been found guilty of a twenty-year-old murder based solely on his daughter's recovered memory. The judge ruled that Franklin had not received a fair trial.
That's something MacLean, a Denver author and attorney, has been saying for years. And he made that argument in his book Once Upon A Time, in which he scrutinized the Franklin case and questioned the validity of repressed memories ("You Must Remember This," June 16, 1993).
MacLean's view proved unpopular in certain circles. Once, while appearing on a Boulder radio talk show, MacLean recalls, an angry listener accused him of either "covering up for perverts" or of being one himself.
"That," he says, "is the kind of grief I got."
The Franklin case was born one January afternoon in 1989, when California housewife Eileen Franklin-Lipsker gazed upon her young daughter and suddenly flashed back to her best friend, Susan Nason, who was bludgeoned to death in 1969. Nason's killer had never been identified. But on that winter day, Franklin-Lipsker later testified, her mind retrieved a picture of her father crushing Nason's skull with a rock. George Franklin was ultimately arrested and charged with first-degree murder.
Over the next eighteen months, Franklin-Lipsker claimed to have retreived more memories, filling in additional details of the crime as needed. Her ability to remember was fluid, in that she changed her version of events several times after being confronted with discrepancies between the facts and her original story.
More importantly, every verified detail that Franklin-Lipsker remembered had been printed in the local papers about the time of Nason's death, a point George Franklin's attorney fought hard to have admitted at trial. The trial judge, however, ruled that inadmissible. "What he said," MacLean recalls, "was that [the defense] would have to prove she read those newspapers. And that's absurd. You don't need to make that connection. You can allow a jury to make an inference."
The prosecution used the judge's ruling to its advantage. In closing arguments, prosecutor Elaine Tipton contended that there was not a single shred of evidence proving that Eileen Franklin-Lipsker had gotten information about the murder from any source other than her own memory.
It took the jury less than a day to convict George Franklin. He was sentenced to life in prison.
But though the jury believed Franklin's daughter, MacLean, who was looking for a book project, did not.
"From what I knew about Eileen, and what I've learned since, I wouldn't take her word for anything," MacLean says. "Whether she's lying or confused or convinced herself it's true, I don't know. But without some sort of corroboration, I wouldn't take her word for anything. Her mind is just too porous and too creative. It's got its own reality."
But at the time, MacLean says, his was a lone voice in the wilderness. "Nobody knew the ins and outs of repressed memory back then," MacLean says. "No one knew that in some cases it was being cooked up in clinical settings by therapists."
Nor were most reporters particularly perceptive, he says. "The media were holding her up as the great truth-sayer victim," says MacLean. "They all gave her uncritical acceptance."
The result was that Eileen Franklin-Lipsker became a tragic heroine for the repressed-memory "movement."
But if there was a tragedy, U.S. District Judge Lowell Jensen decided last month, it was that George Franklin did not get a fair trial. In a 51-page decision, Jensen ruled that the Franklin trial was fundamentally flawed. First, he wrote, the defense should have been allowed to admit as evidence the newspaper articles quoting the facts that Franklin-Lipsker "remembered."
The second decision grew out of a jailhouse meeting between Franklin and his daughter that was later brought out at trial. Franklin-Lipsker urged her father at that meeting "to tell the truth" and confess to the murder. But he remained silent instead. In court, the prosecution pointed to that as "evidence" that George Franklin was guilty. But silence, Jensen wrote, is evidence of nothing. Citing a Supreme Court ruling, he added, "It is difficult to imagine a more egregious...error, or one that so infected the entire conduct of a trial."
The prosecution has since appealed Jensen's decision, but the defense is confident that the ruling will stand. If it does, the prosecution will have to decide whether to retry Franklin or to free him from jail.
If there is a retrial, is there a sequel in it for MacLean? He says no. MacLean is presently esconced in the San Juan Islands of Washington state, where he's working on his third book, a novel.
The book, based loosely on the 1993 Tom Hollar carjacking/murder in Denver, is a legal thriller. And unlike Once Upon A Time, he says, readers will know from the beginning what is fiction and what is not.