Recovered Rape Memory Fails to Win New Trial

A murder conviction remains in place despite the killer’s request for a new trial because of memories he says he recovered. Personal Restraint Petition of Marvin Sides Faircloth, ___ Wn.App. ___ (Dkt. No. 42318-9-II, 10/8/13, Washington Court of Appeals).

Faircloth was convicted in 1996 of murdering his father. His petition for a new trial rested in part on his claim that, beginning in 2000, he recovered a memory of his father anally raping him while Marvin was “under the influence of substances.” Faircloth contended this evidence would have strengthened the defense he unsuccessfully presented at trial: that his capacity to premeditate the killing was diminished because he suffered from post-traumatic stress disorder. Faircloth also contended this memory would have helped show that he suffered from battered child syndrome and so had killed his father in self-defense.

Memory recovery is quite controversial. Many memory scientists believe “repression” and later “recovery” of memory of a horrific experience does not happen. I have reported on this, for example, here. The court, here, though, seemed to assume that Faircloth’s claim that he had recovered this memory would have been admissible. Instead it rejected the arguments that the recovered memory could have changed the outcome of Faircloth’s trial.

The court said evidence that the killing went on for twenty minutes established premeditation too well for this new evidence to put it in doubt.

The court cited State v. Janes (a landmark case in which I had the privilege to serve as trial counsel) in its analysis of Faircloth’s battered child syndrome argument. The court concluded that, even if Faircloth suffered from battered child syndrome, other facts in the case would have precluded finding the killing done in self-defense.