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Stunning ruling in 30-year-old murder of Oregon prisons chief hinged on legal hurdle

By Maxine Bernstein, The Oregonian
Published: April 27, 2019, 10:47am

PORTLAND — What led a judge to overturn the notorious case against the man convicted of killing Oregon’s prisons chief in 1989 when other judges upheld his verdict and life sentence over decades of appeals?

Last week’s stunning ruling boiled down to one critical and difficult legal hurdle cleared by Frank Gable’s federal public defenders, plus two new federal constitutional claims that hadn’t been raised before.

First, Gable’s lawyers successfully convinced U.S. Magistrate Judge John V. Acosta there was a showing of “actual innocence” supported by new and old information.

The judge cited eight material witnesses in the case who have now recanted their testimony and a record of improper interrogation and flawed polygraphs used to question the witnesses and shape many of their statements to police.

The “actual innocence’’ showing opened the door for the judge to then consider the merits of Gable’s petition, despite procedural hurdles that typically would have barred further review of his case.

The judge then pored over the two main claims made by Gable’s lawyers: that the U.S. Constitution required the jury at Gable’s murder trial to hear evidence that another man had confessed to the crime and that Gable’s lawyers provided ineffective counsel by not arguing that the trial court’s exclusion of the confession violated Gable’s federal rights.

Acosta found that the confession would have raised reasonable doubt in Gable’s case and its exclusion violated Gable’s Sixth Amendment right to confront witnesses and his 14th Amendment due process right to present a complete defense and show that another person may have committed the crime.

Citing the constitutional violations, Acosta ordered the state to either release Gable from custody or retry him in 90 days. The latter option, legal observers say, isn’t viable, based on the case record and the judge’s findings.

“Although the evidence presented at trial in 1991 resulted in a guilty verdict, the court concludes that it is more likely than not that no reasonable juror would find Gable guilty in light of the totality of all of the evidence uncovered since that time, particularly the newly presented evidence of witness recantations,” Acosta wrote in his 94-page decision.

The ruling has given Gable hope of leaving prison soon as an exonerated man in a 30-year-old murder case that spurred conspiracy theories and accusations of a bungled investigation almost from the moment it began.

Gable, now 59, is serving life without the possibility of parole in the Jan. 17, 1989, killing of Michael Franke, who was brought in to lead the state Department of Corrections two years earlier.

Francke, 42, bled to death from stab wounds, and was found dead on the north porch of the Dome Building in Salem where he worked. The door of his nearby state-issued Pontiac stood open, its dome light found on.

Gable, a local methamphetamine dealer at the time, was arrested 15 months later after a series of his cohorts said they saw him stab Franke. The state argued at trial that Francke interrupted Gable as Gable burgled Francke’s car to get “snitch papers.”

Before Acosta’s order, both sides agreed to allow his ruling to stand without review by a federal district judge.

That means Gable and his attorneys now anxiously wait to see if Oregon’s attorney general will appeal to the 9th U.S. Circuit Court of Appeals. The state Attorney General’s Office hasn’t yet indicated what it will do. It has 30 days to file a notice of appeal with the 9th Circuit.

If the state appeals, it also likely will seek to halt Gable’s release in the interim, which Gables lawyers are expected to fight.

One complication is that Gable has a nearly nine-year federal sentence for a September 1991 gun conviction hovering over him. It was supposed to run consecutively to his state murder case. If the state case is completely vacated, the 30 years he’s already served should suffice for the federal sentence, but Gable could face three years of federal post-prison supervision from that case.

Gable’s new wife, Rainy Storm, was the first to tell him of the judge’s ruling. Gable’s lawyers sent him a copy of the decision by mail to the prison in Lansing, Kansas, where he’s now being held and have talked to him since.

Assistant Federal Public Defender Nell Brown, who was first appointed to the case in May 2007, said she was “relieved” to receive the favorable decision because she believes, “based on years of investigation by her team, that her client is innocent.”

“Without federal relief, Mr. Gable will spend the rest of his life in prison for a crime he did not commit,” she said.

Gable was getting anxious, wondering when the judge’s ruling would be issued, said his older sister, Francine Sinnett, based on her phone conversations and visits with him in prison. The last oral argument in the case occurred nearly two and a half years ago, in November 2016.

“The longer it took the more worried we got, but it sounds like the judge must have read every scrap of paper he got his hands on, and for that, we’re very thankful,’’ Sinnett said.

Witnesses recant, polygraphs flawed, other confession excluded

The Oregon Court of Appeals had upheld the verdict against Gable in the Marion County trial. The Oregon Supreme Court denied review at one point and then later considered the case but rejected a prior argument about the sentencing options presented to the jury.

In 2007, Gable first filed a petition in federal court for habeas corpus relief, asking a judge to consider whether his imprisonment is lawful. He wrote the document himself. Brown, along with Assistant Federal Public Defender Mark Ahlemeyer, amended it, and in 2014, added the “actual innocence’’ claim.

What appeared to stand out to Acosta was new evidence that Gable’s lawyers presented in detailed briefs, a Power Point presentation and a videotaped recording played in court of the other man’s confession.

The magistrate judge identified numerous problems with the case against Gable:

— Eight witnesses have recanted their statements to police. They had either reported seeing Gable at the scene or said they heard him confess to killing the prisons director, but now all say they lied in implicating Gable.

Although lawyers for the state argued that the recantations weren’t credible, Acosta found they were.

He noted that none of the witnesses who withdrew their statements are related to Gable; they were acquaintances of his over two decades ago in the seedy drug and criminal world of Salem. They have no personal relationship with him now and their recantations occurred at different times with reasonable explanations, the judge said.

At the time of their testimony, Acosta also noted, many of these witnesses had an antagonistic relationship with Gable, including two who both believed Gable’s cooperation with police had led to their own arrests and another who claimed Gable owed him money.

Two of the eight recanted their stories before his trial and three others had admitted to friends before the trial that their testimony against Gable would be false.

— The judge found a pattern of coercive interrogation tactics and excessive polygraph examinations to secure incriminating statements from the witnesses.

He quoted, for example, one witness, Cappie Harden, who said, “The police questioned and polygraphed me many times[.] I initially told the truth, which was that I was not an eyewitness to the Francke murder. However, after the police threatened me and my family I eventually adopted the false story to which I testified at grand jury trial.”

The judge relied heavily on a polygraph expert hired by Gable’s attorneys, David C. Raskin, who has taught university courses about polygraph techniques and trained government and law enforcement polygraph examiners.

Raskin analyzed the records of the police interrogations and concluded that “guilt presumptive” police interview practices and giving people polygraph tests multiple times in a single day or multiple times over several days produced false testimony.

The more someone is tested, the less reliable the results are, according to Raskin. The tests were used as a “psychological club’’ to pressure witnesses to change their accounts, he said.

One witness, Jodie Swearingen, had 23 polygraphs, including nine by one detective from Jan.16 to Jan. 19, 1990.

“I have never seen this many tests administered to one person in the 43 years I have been working in this field,” Raskin told the court, referring to Swearingen’s experience.

The judge noted: Swearingen “says she would tell them the truth and they would say she was lying, and that when she told them what they wanted to hear, they said she was telling the truth, when in fact it was a lie.”

Swearingen ended up being a defense witness for Gable at trial, but then was impeached by a state prosecutor during cross-examination, based on her prior statements to police.

— Then-Salem resident Johnny Crouse confessed to killing Francke but the trial judge wouldn’t allow it to be admitted.

Crouse, who was on parole for a robbery at the time, repeatedly confessed to murdering Francke, telling numerous law enforcement officers as well as his mother, brother and girlfriend that he stabbed Francke when Francke caught him burglarizing his car.

Crouse’s confession, Gable’s lawyers argued, was consistent with the crime scene and autopsy evidence, corroborated by eyewitness testimony and considered truthful by the one neutral polygrapher from the FBI who was flown in from out of state to test him.

Crouse described the altercation in detail, including where he wounded Francke — in the arm and chest — a description consistent with the knife wounds on Francke’s body, the judge said. Crouse also said he made a “round house” punch with his right hand and hit Franke on the left side of his face. That would account for abrasions to Francke’s face that remained unexplained at trial, Acosta said.

“Less than three months after Francke’s murder, before any witness accounts emerged which described the altercation, Crouse knew a plethora of physical details about events immediately before, during, and immediately following the altercation that he could not have known unless he killed Francke,” the judge wrote.

While the judge noted that Crouse gave conflicting statements to police and later recanted his confession, Acosta found others described Crouse’s initial confession as credible. He cited an investigator’s contemporaneous notes taken of Crouse’s interview that indicated Crouse was “spontaneous and smoothly spoken” when he confessed and didn’t hesitate answering questions like he did at other times.

In an April 5, 1989, phone call to his brother, Crouse confessed to killing Francke and described how the altercation unfolded, consistent with his confession to police. He also admitted to the murder on five separate occasions to four different people that same month.

“Gable has demonstrated that the exclusion of Crouse’s statements had a substantial and injurious effect or influence in determining the jury’s verdict: evidence of Crouse’s confession ‘would have filled a major gap in the defense case, and would have greatly increased the likelihood of the jury’s entertaining a reasonable doubt of (Gable’s) guilt,’ ‘’ the judge wrote.

Frank Gable has changed name, ‘wants to get on with life,’ sister says

Frank E. Gable legally changed his name to Franke J. Different Cloud. “He never accepted the fact that he was going to do life – no matter what it took, no matter how many appeals, no matter how many lawyers he went through – he was going to get out,’’ his older sister, Francine Sinnett, told The Oregonian/OregonLive.

Yet while Acosta found Gable’s lawyers “cast serious doubt” on the state’s case, he stopped short of declaring Gable innocent.

“Although Gable has presented sufficient evidence of a constitutional violation that probably resulted in the conviction of someone who is actually innocent, Gable has not made the ‘truly persuasive’ and ‘extraordinarily high’ showing necessary to support a finding that he is actually innocent,’ he said.

Acosta denied what’s called a “free-standing claim” of actual innocence, which legal experts say rarely occurs unless there’s some proof of exoneration through DNA evidence. In this case, Francke’s clothing was retested for any DNA evidence but it was too soaked with his own blood to turn up any useful information, according to federal public defenders.

Oregon Federal Public Defender Lisa Hay credited the work of Brown and Ahlemeyer, and their investigators Wendy Kunkel and Brian Warner, who she said exhaustively researched, investigated, and briefed Gable’s case.

“Our arguments were grounded in longstanding constitutional principles and we relied on safeguards set out in federal law to protect people in Mr. Gable’s position,’’ Brown said.

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