George Thomas Franklin v. Jim Fox Martin Murray Robert Morse Bryan Cassandro John Cuneo, Sergeant Eileen Franklin-Lipsker
Docket: 01-15052
Court: Court of Appeals for the Ninth Circuit; November 27, 2002; Federal Appellate Court
Eileen Franklin-Lipsker reported in 1989 that she witnessed the 1969 sexual molestation and murder of her friend Susan Nason, implicating her father, George Franklin. A jury convicted Franklin of first-degree murder, leading to a life sentence, which he served for five years until a federal court granted him a writ of habeas corpus due to significant constitutional errors in his trial. Following his release, Franklin initiated a federal lawsuit under 42 U.S.C. § 1983, alleging that Franklin-Lipsker conspired with detectives Robert Morse and Bryan Cassandro to arrest him without probable cause, and that she conspired with Assistant District Attorney Martin Murray and jail official John Cuneo to violate his Sixth Amendment rights by attempting to elicit a confession without his counsel present. The district court granted summary judgment in favor of the defendants, and Franklin subsequently appealed. The Ninth Circuit upheld the district court's ruling, affirming the summary judgment on all claims and against all defendants.
The inspector emphasized the inability to provide specific details about the investigation or trial without full knowledge of the case and evidence. During a second call, Barry's wife was informed about her potential role as a witness and what to expect if she reported the crime. A third call revealed Barry's concerns about the perpetrator being a family member who had previously abused his own children, along with fears of retaliation and lack of legal action. The inspector reassured Barry that cases pursued by prosecutors are typically strong, preferring those with a high likelihood of success.
On November 21, 1989, Barry and his wife, referred to as "Mrs. Barry," provided the inspector with details of the crime without naming the perpetrator, seeking assurance that prosecution wouldn't rely solely on her testimony. Franklin-Lipsker recounted being with the perpetrator when they picked up the victim, Susan, and described the subsequent events, including the assault and murder. She mentioned threats made by the perpetrator to ensure her silence. The following day, the inspector and Deputy District Attorney informed her that her information was consistent with existing case knowledge, indicating she was likely a truthful eyewitness. They assured her that the evidence would be thoroughly evaluated before any contact with the suspect, and stressed the ethical responsibility to file charges only if sufficient evidence existed to support a conviction.
Franklin-Lipsker informed Murray that she had not followed media coverage of the case and had not discussed it with anyone, emphasizing that her knowledge should be private to remain credible. Murray noted that her description contained details he believed only a direct witness could know. During a phone call, Franklin-Lipsker became upset when her husband asked for specifics about the crime. Later, she provided her name to the police and agreed to meet Detectives Morse and Cassandro, revealing that she witnessed her father, George Franklin, kill Susan Nason.
In the November 25, 1989 interview, Franklin-Lipsker detailed that her father drove her and her sister to school in a Volkswagen van, where they picked up Susan. He made Janice exit the vehicle and suggested they skip school. They traveled towards Half Moon Bay and ended up in a wooded area on an unpaved road with a mattress in the back of the van. Franklin subsequently assaulted Susan on the mattress, and Franklin-Lipsker observed him lifting a rock and striking Susan on the head twice, causing visible injury.
Franklin-Lipsker fled but was restrained by her father, who threatened her life if she disclosed the incident. He forced her to assist in removing the mattress from the van before they returned home without Susan. After the incident, Franklin-Lipsker confided in her therapist and family, including her mother, who suspected Franklin's involvement in Susan's murder. When questioned about her delayed reporting, she shared that her memories had recently intensified but did not disclose that she had forgotten the incident for twenty years. Additionally, she described a pattern of her father's sexual violence against her and her sisters, as well as his threatening behavior towards the family. The detectives raised concerns about potential bias in her testimony, which she denied.
Franklin-Lipsker informed Murray prior to an interview that she had been in therapy for twenty years, suggesting that her recollections concerning the murder were influenced by these sessions. During the interview, she confirmed her therapeutic history and mentioned considering hypnosis for weight loss, though she had not pursued it. However, there are discrepancies in the notes regarding whether she claimed to have been hypnotized. Morse assessed Franklin-Lipsker as a credible witness after the interview, despite concerns raised by Murray about her mental stability. Following the interview on November 25, 1989, additional investigative measures were taken by Morse and Cassandro before Franklin-Lipsker's arrest three days later.
The investigation involved reviewing 1969 sheriff and coroner files, which corroborated Franklin-Lipsker's statements about a ring and the condition of the victim's remains. A coroner's report supported her claim regarding a ring found at the site, and a newspaper article from the time mentioned a skull fracture but omitted certain details Franklin-Lipsker provided, such as the manner of the victim's death and the condition of the remains. There were inconsistencies between Franklin-Lipsker's recollections and the reported timeline of events regarding the victim's abduction.
Additionally, Franklin-Lipsker's sister, Janice, provided her own recollections of the day of the murder, which differed from Franklin-Lipsker's account. Janice did not recall seeing Susan get into Franklin’s van but had a vague feeling about it, and she remembered Susan's attire but was uncertain about their interactions after school.
Janice's recollection of the Volkswagen van aligns with Franklin-Lipsker's description, noting the removal of the back seat for a bed. After Susan's disappearance, Janice observed the mattress missing and informed detectives of Franklin's penchant for drives towards Half Moon Bay and Highway 92. She indicated her belief about where Susan could be found and described Franklin's affection for Susan, recalling instances of him interacting playfully with both Susan and her sister Eileen. Janice disclosed her own history of sexual abuse by Franklin, starting in elementary school and escalating to attempted intercourse and forced oral sex in later years. She also noted Franklin's violent behavior toward their family.
On the night of Susan's disappearance, Janice found Franklin behaving oddly and felt frightened by his greeting. Following the police inquiry into Susan's case, Franklin physically assaulted Janice, injuring her and threatening her against speaking to the authorities. Despite Susan and Eileen's close friendship, Janice found it peculiar that Franklin's household did not discuss Susan's disappearance. She had previously contacted the police in 1984, expressing her suspicion that Franklin was involved in Susan's murder, but was told her information was insufficient for further action. Janice's mother also suspected Franklin's involvement but was too afraid to report it.
Detective Morse, in an affidavit for a search warrant at Franklin's residence, outlined his discussions with Janice and Franklin-Lipsker. He consulted with a child sexual crimes specialist who classified Franklin as a pedophile, which reinforced Morse's belief that the murderer was likely someone known to Susan. The affidavit noted that Franklin-Lipsker possessed detailed knowledge about the crime that suggested eyewitness status, providing probable cause for concluding that Franklin was Susan's murderer. Prior to confronting Franklin, police located his old van based on Franklin-Lipsker's memory of the license plate and documented potential evidence inside. Additionally, they interviewed Susan's parents and one of Franklin's ex-girlfriends, with Mrs. Nason recalling a sexual advance made by Franklin a year after Susan's murder.
Franklin was identified as a suspect in the Susan Nason murder during a police interview, which he declined to conduct at home, opting instead to go to the police station. After he refused to answer questions and requested legal counsel, he was arrested, and a search warrant was executed at his residence later that day.
In December 1989, weeks post-arrest, Franklin-Lipsker sought to visit her father at San Mateo County Jail, intending to persuade him to confess. She contacted Murray from the District Attorney's office to inquire about the visit. Murray advised against it, suggesting it could negatively impact the case and complicate the trial if Franklin made allegations against her. However, Franklin-Lipsker later recounted in her book that Murray appeared supportive of the visit, despite initially expressing concerns.
Murray refused to facilitate the visit but offered to gather information about visiting hours. He communicated with jail official Cuneo, who confirmed that Franklin could have visitors and that non-standard visiting hours were permissible for out-of-town guests. Murray instructed Cuneo to treat Franklin-Lipsker as any other witness, clarifying that her visit was not a request from the District Attorney's office. Contrarily, Franklin-Lipsker later claimed she was promptly connected to Cuneo, who informed her she could visit outside typical hours.
Franklin-Lipsker testified at Franklin's trial that her father, during a jail visit, pointed to a sign indicating that conversations might be monitored instead of responding to her pleas. This silence was highlighted by Prosecutor Elaine Tipton during closing arguments. Franklin received a life sentence for first-degree murder and, after exhausting state remedies, sought federal habeas corpus relief. The state appeals court found that Franklin-Lipsker acted with the district attorney's office's approval during her visit, which occurred while Franklin's Fifth Amendment rights were in effect and he was represented by counsel. The federal district court ruled that the prosecution violated Franklin's Fifth Amendment rights by interpreting his gesture toward the sign as an invocation of his right to remain silent.
Additionally, the court found that the circumstances of Franklin-Lipsker's visit violated his Sixth Amendment rights, referencing Massiah v. United States. The court determined that the government's involvement in the visit was substantial enough to constitute a violation, as district attorney Murray had encouraged Franklin-Lipsker and facilitated her visit. The court concluded that the state improperly exploited the opportunity to question Franklin without his counsel present, thereby violating his constitutional rights. Consequently, the court vacated Franklin's conviction and granted him a writ of habeas corpus, leading to the appeal in question.
Standards of review for legal determinations, including summary judgment, qualified immunity, and probable cause findings, are assessed de novo. In Franklin's case against defendants Morse, Cassandro, and Franklin-Lipsker, he alleges conspiracy for an arrest without probable cause, asserting that (1) Franklin-Lipsker's memories, which emerged through hypnosis, were known to the detectives; (2) details recalled by her were previously reported in 1969 news articles about a murder; (3) the detectives suppressed evidence of Franklin-Lipsker's past arrests, undermining her credibility; and (4) they falsified a statement he made before his arrest.
Morse and Cassandro assert qualified immunity, which protects officials from liability if their actions do not violate clearly established rights that a reasonable person would recognize. The analysis involves two steps: determining if the governing law was clearly established and whether a reasonable officer could have believed their actions were lawful. The inquiry is objective, focusing on the facts known to the officers at the time of the arrest. The law at the time affirmed that an arrest requires probable cause. Thus, the court must evaluate whether, viewing evidence favorably to Franklin, Morse and Cassandro could reasonably believe they had probable cause for the arrest. Probable cause exists when officers possess reliable information that would lead a prudent person to believe a crime has been committed, requiring only a probability of criminal activity rather than a definitive proof.
Morse and Cassandro established probable cause to arrest Franklin based on information received from Franklin-Lipsker, Janice Franklin, and files from the coroner and sheriff. As they sought summary judgment, they needed to show a lack of genuine factual disputes, in line with Celotex Corp. v. Catrett. Their investigation began with six phone calls to Franklin-Lipsker, who, after some reluctance, provided reliable details in an interview, including specific knowledge about the victim's injuries and the crime scene's location. Although there were minor discrepancies in her account, these were deemed reasonable given the time elapsed since the event. Morse and Cassandro assessed Franklin-Lipsker's credibility and found her trustworthy, a determination that Franklin failed to contest effectively.
Additionally, they corroborated her claims with Janice Franklin, who confirmed her father's abusive behavior and suspicion regarding his involvement in Susan's disappearance. The detectives concluded that the evidence available supported a reasonable belief in probable cause for Franklin's arrest. To counter the summary judgment, Franklin needed to show genuine disputes about the facts known to the officers at the time of the arrest. However, he did not present sufficient evidence to challenge the reasonableness of Morse's and Cassandro's belief in their probable cause, leading to the affirmation of the district court's decision regarding Franklin's claims against them.
Franklin asserts a genuine dispute regarding whether Franklin-Lipsker's recollection of Susan's murder, allegedly recovered through hypnotherapy, was known by detectives Morse and Cassandro. California law from 1989 establishes that testimony from a witness who regains memory through hypnosis is inadmissible. Franklin argues that if Morse and Cassandro were aware that Franklin-Lipsker's memories were induced by hypnosis, they could not legitimately rely on her statements for probable cause.
Evidence presented by Franklin includes statements from Franklin-Lipsker to family members about recovering memories through hypnosis and a finding from a habeas court indicating she would be considered an "invalid witness" if hypnotized. Franklin also cites Janice Franklin's sworn admission that both she and Franklin-Lipsker underwent hypnotherapy prior to Franklin's arrest and had previously lied about it.
Despite these assertions, the court concluded that Franklin has not provided sufficient evidence to show that Morse and Cassandro knew Franklin-Lipsker's memories were obtained through hypnosis at the time of arrest. Testimonies indicate that during a conversation on November 25, 1989, Franklin-Lipsker only mentioned considering hypnosis for weight loss, not for recalling the murder. Assistant District Attorney Murray corroborated this account. A note from Cassandro mentioning hypnosis for weight loss does not imply that the detectives were aware of any connection to the murder.
Additionally, Franklin claims Franklin-Lipsker's memories lack credibility because details were available in media reports from 1969. However, he fails to provide evidence that the officers read these articles before the arrest, and the qualified immunity analysis focuses on what the officers could reasonably conclude from the information they had at that time.
The coroner's file lacked details regarding Susan's crushed hand and ring, and Franklin does not contest that Franklin-Lipsker informed Morse and Cassandro she had avoided media coverage of the murder to prevent biasing her memory. Although Morse and Cassandro could have conducted a more comprehensive newspaper search, they reasonably concluded that Franklin-Lipsker was aware of undisclosed facts about the case.
Franklin claims that Morse and Cassandro conspired with Franklin-Lipsker to suppress her arrest record for prostitution and cocaine possession, arguing such suppression could have affected his ability to challenge her credibility at trial. However, this suppression is irrelevant to the assessments of probable cause and qualified immunity. The determination of whether Morse and Cassandro had qualified immunity depends solely on the information available to police at the time of Franklin's arrest. Although the police were aware of Franklin-Lipsker's drug history, Franklin failed to demonstrate that this undermined her credibility regarding her testimony about the murder. Additionally, her past does not inherently cast doubt on her ability to accurately recall unrelated events.
Franklin's inquiry to the police about whether they had spoken to his daughters, given Susan's close friendship with Franklin-Lipsker, does not create a factual dispute regarding probable cause. Morse's affidavit indicated that probable cause for Franklin's arrest existed before he was approached by the detectives. The collective evidence, including statements from Franklin-Lipsker and Janice Franklin, as well as expert evaluations, supported a reasonable officer's belief in probable cause.
Ultimately, Franklin did not provide sufficient evidence to challenge the conclusion that Morse and Cassandro reasonably believed they had probable cause to arrest him, justifying the district court's ruling that they were entitled to qualified immunity. Franklin's claim against Franklin-Lipsker for conspiracy to violate his constitutional rights under 42 U.S.C. 1983 hinges on this probable cause issue.
To establish a conspiracy claim under 42 U.S.C. § 1983, Franklin must demonstrate an agreement or "meeting of the minds" to violate constitutional rights between police officers and Franklin-Lipsker. It is sufficient for participants to share a common objective without needing to know all details of the conspiracy. Franklin failed to provide evidence indicating that Morse and Cassandro conspired to violate his rights or that they engaged in a conspiracy with Franklin-Lipsker. The officers had probable cause for Franklin's arrest, undermining his claim against his daughter regarding probable cause. Additionally, there is no evidence suggesting Franklin-Lipsker conspired with the detectives; rather, her actions indicated a reluctance to cooperate until police were confident in a credible case. Consequently, Franklin-Lipsker is entitled to summary judgment on Franklin's probable cause claim.
Regarding the Sixth Amendment, Franklin's rights were violated during an interrogation with Franklin-Lipsker, arranged by Assistant District Attorney Murray, without his lawyer present. The court found that the waiver of Sixth Amendment rights does not apply when interacting with an undisclosed government informant. Evidence presented showed that Franklin-Lipsker contacted Murray to discuss her father’s potential guilty plea, leading to arrangements for her to visit him in jail without legal representation. Murray facilitated this visit, which included discussions about it prior and subsequent to the meeting, confirming the violation of Franklin's rights.
Murray and Cuneo could reasonably be seen as having knowledge of Franklin-Lipsker's intent to persuade her father to confess, and they facilitated her visit by coordinating with Cuneo. This conduct is deemed to have violated Franklin's Sixth Amendment rights, as established in Franklin v. Duncan. The key question is whether the defendants can claim qualified immunity under Section 1983.
In assessing this, the law at the time clearly prohibited government agents from interrogating a prisoner without the presence of counsel. The determination hinges on whether a reasonable official in Murray's and Cuneo's positions could have believed their actions were lawful. The Supreme Court's ruling in Anderson v. Creighton emphasizes that a reasonable official must recognize when their actions violate established rights.
Franklin cites Maine v. Moulton, which held that exploiting a situation to confront an accused without counsel breaches the obligation to uphold the right to counsel. However, this case is distinguishable because there was no evidence of any agreement between Murray and Franklin-Lipsker, unlike Moulton. The record indicates that Murray did not solicit Franklin-Lipsker’s assistance or offer her anything for her visit.
The court referenced United States v. Surridge, where a visitor unintentionally provided information to a detained defendant without any governmental coercion or agreement, leading the Eighth Circuit to find no violations of the Fifth or Sixth Amendments. This precedent supports the argument that Murray’s actions did not constitute a clear infringement of Franklin's rights.
Franklin v. Duncan established that Franklin experienced a Sixth Amendment deprivation. However, the court found that a reasonable official in Murray's position could have mistakenly believed his actions did not violate Franklin's rights, thus granting Murray qualified immunity. The Supreme Court's precedent in Saucier v. Katz emphasizes the recognition of reasonable mistakes in the context of immunity inquiries. Although facilitation of interrogations is now clearly unlawful, Murray could have reasonably thought otherwise at the time of his actions.
Regarding Cuneo, there was no evidence that he was aware of Franklin-Lipsker's intent to seek a confession from her father. Given the information he possessed—that Franklin’s daughter wished to visit him and was treated like other witnesses—Cuneo reasonably believed that arranging a non-visiting hours visit did not infringe upon Franklin's Sixth Amendment rights. Franklin did not present facts indicating that Cuneo acted with knowledge beyond his assertions or offered Franklin-Lipsker preferential treatment.
On the matter of Franklin-Lipsker's liability, while Murray is protected by qualified immunity, Franklin-Lipsker, a private individual, is not entitled to such immunity under Section 1983. The district court noted the inconsistency in holding a non-lawyer like Franklin-Lipsker liable while granting immunity to the prosecutor. The court also acknowledged a potential "good faith defense" for private defendants, although it did not need to decide on its applicability. It concluded that Franklin-Lipsker was not acting under color of state law during her visit to the jail and was not the proximate cause of her father's Sixth Amendment violation. Under Section 1983, liability requires demonstrating that the private individual acted under color of state law, which Franklin-Lipsker did not.
In cases involving state action, the focus is on whether a private party's conduct, which caused harm to a plaintiff, can be attributed to state involvement. A key determinant is whether the State has accepted benefits from unconstitutional actions (Nat'l Collegiate Athletic Ass'n. v. Tarkanian). Constitutional accountability arises only when the State is responsible for the specific actions complained of (Brentwood Acad. v. Tennessee Secondary Sch. Athletic Ass'n). A plaintiff must demonstrate that a defendant's actions are "fairly attributable" to the government (Collins v. Womancare).
State action may be established if there is "significant" state involvement in a private individual's actions (Johnson v. Knowles). The Supreme Court has outlined four tests for determining state action, with the joint action test being particularly relevant in this context. This test examines whether state officials and private parties have collaborated in violating constitutional rights (Gallagher v. Neil Young Freedom Concert). It focuses on the degree of interdependence between the state and the private actor.
A plaintiff can show joint action by proving a conspiracy or demonstrating that the private party acted as a willing participant alongside state agents (Collins). Co-conspirators do not need to know the full details of the plan but must share a common objective of violating constitutional rights (Phelps Dodge Corp). Furthermore, substantial cooperation is required for imposing civil liability on private individuals who infringe upon civil rights, as illustrated in Howerton v. Gabica, where a landlord's actions in collaboration with police were deemed sufficient due to the extent of police involvement in the eviction process.
No evidence exists to support a conspiracy or joint action between Franklin-Lipsker and Murray. Franklin-Lipsker did not make repeated requests for Murray's input regarding questions to ask her father, and the jail visit was initiated by Franklin-Lipsker rather than by the state to elicit a confession. Although the interview's use against Franklin at trial violated the Massiah ruling, the government did not sufficiently involve itself in the jail visit to classify her actions as state actions. Franklin failed to demonstrate that his daughter acted under color of state law during her visit. Furthermore, Franklin's attempt to hold his daughter accountable for Murray's facilitation of the visit or prosecutor Tipton's use of his silence at trial is unsubstantiated because a private individual can only be liable for a § 1983 violation if they are the proximate cause of the state actor's conduct. Precedent indicates that involvement in an investigation does not equate to proximate cause unless the private party directed state action. There is no evidence that Murray or Tipton were influenced by Franklin-Lipsker, nor that she facilitated the state's violations. Franklin-Lipsker was unaware of Tipton's use of Franklin's silence as evidence. The court concludes that she did not proximately cause Franklin's injuries, thus is not liable under § 1983.
Detectives Morse and Cassandro had sufficient evidence for probable cause to arrest Franklin, and he failed to show any genuine issue of material fact regarding a conspiracy to arrest him without probable cause. Murray and Cuneo are entitled to qualified immunity concerning the Sixth Amendment violations that led to Franklin's release. The judgment of the district court is affirmed. The court did not grant summary judgment on two remaining claims against Franklin-Lipsker for allegedly conspiring to present false testimony at Franklin's murder trial, while no other claims remain against the other officials involved.
In actions involving multiple claims for relief or parties, a court can issue a final judgment for some claims or parties before all claims are resolved only if it explicitly finds no just reason for delay and directs the entry of judgment. Under Rule 54(b), district courts may sever particular claims for immediate appeal, provided they state there is no just reason for delay, and such decisions are given significant deference by appellate courts. The excerpt references several cases to support this principle. Additionally, it includes details about discrepancies in witness accounts related to therapy sessions, the reliability of evidence, and the expectations for officers’ probable cause determinations, emphasizing the distinction between admissible evidence and what can inform such determinations during investigations. Notably, while discrepancies in witness accounts were acknowledged, they were considered understandable given the time elapsed since the events. Furthermore, it mentions that no substantial evidence has been presented to indicate that certain articles were reviewed prior to an arrest, and the book by Eileen Franklin is noted but not part of the case record.
