PASSAGE OF THE DAY: "Oregon Assistant Attorney General Benjamin Gutman said Gable hadn’t produced any new “trustworthy eyewitness accounts” or critical physical evidence to undercut his conviction and that the confessions by Crouse were unreliable and appropriately excluded at trial. The appeals court found otherwise, concluding that Crouse’s confessions appeared strikingly reliable, were corroborated by other evidence including facts that only a participant to the crime would know and that the confessions would have been critical to Gable’s defense."
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GIST: "A federal appeals court Thursday affirmed an Oregon judge’s decision to release Frank Gable and vacate his conviction in the 1989 murder of Oregon Corrections Director Michael Francke.
No reasonable juror would have convicted Gable in light of another man’s multiple confessions to the killing that were excluded from Gable’s trial and the recantations since trial by nearly all witnesses in the case, a three-judge panel of the 9th U.S. Circuit Court of Appeals ruled.
“The facts on appeal are extraordinary,” the ruling said. “In the thirty years since trial, nearly all the witnesses who incriminated Gable have recanted. In short, no reasonable juror could ignore the heavy blow to the State’s evidence given the significance of the recantations. The affidavits show how undisputed investigative misconduct paved the way for a string of criminal associates to turn on Gable to help themselves.”
U.S. Magistrate Judge John V. Acosta in 2019 ordered Gable’s release or a retrial, partly citing a record of improper interrogation and flawed polygraphs used to question the witnesses and shape their statements to police.
On June 28 that year, Gable walked out of the Lansing Correctional Facility, in Kansas, where he had been held last after serving nearly 30 years of a life sentence without the possibility of parole in the killing of Francke, 42, in Salem. Francke was the director of the Oregon Department of Corrections when he was attacked during a confrontation near his state-issued car outside the Dome Building, the agency’s headquarters.
It was a remarkable turnaround involving one of the most publicized and debated murder cases in Oregon’s modern history. Gable, now 63, has been on federal supervision, living with his wife in Kansas as the state’s appeal of Acosta’s decision has been pending.
Gable, a local methamphetamine dealer at the time, was arrested 15 months after Francke’s death when another man said he saw him stab Francke. The state argued at trial that Francke interrupted Gable as Gable broke into Francke’s car to get “snitch papers,” drawing from the grand jury statement of one witness. The trial jury found Gable guilty of aggravated murder and he was sentenced in 1991.
John Crouse, a Salem man who was on parole for a robbery at the time, repeatedly said he had killed Francke on Jan. 17, 1989, telling numerous law enforcement officers as well as his mother, brother and girlfriend that he stabbed Francke when Francke caught Crouse burglarizing his car.
The 9th Circuit found that the exclusion of Crouse’s confessions at Gable’s trial was wrong and violated Gable’s due process rights.
The three judges who heard the appeal were 9th Circuit Judges Richard A. Paez and Jacqueline H. Nguyen and U.S. District Judge John R. Tunheim. Nguyen wrote the 30-page opinion.
The state in its appeal argued that Gable and his lawyers failed to meet the legal threshold for showing Gable didn’t commit the fatal stabbing.
Oregon Assistant Attorney General Benjamin Gutman said Gable hadn’t produced any new “trustworthy eyewitness accounts” or critical physical evidence to undercut his conviction and that the confessions by Crouse were unreliable and appropriately excluded at trial.
The appeals court found otherwise, concluding that Crouse’s confessions appeared strikingly reliable, were corroborated by other evidence including facts that only a participant to the crime would know and that the confessions would have been critical to Gable’s defense.
The ruling laid out the chain of events involving Crouse’s confessions:
A few weeks after the killing, in February 1989, Crouse told his parole officer unprompted that he had information about Francke’s death. Initially, Crouse said he saw a group of men beating up another man outside the Dome Building. Crouse then claimed a man named Juan paid him $300,000 to murder Francke.
But, according to the appeals court, his “most detailed and compelling confession” came in April 1989. According to Crouse, he was walking by the Dome Building when he decided to break into a car, Francke caught him in the act and tried to detain him and Crouse hit Francke in the face and stabbed him before fleeing on foot.
“Critically, Crouse included key details that were consistent with the evidence but not yet public, like the number and type of wounds Francke suffered. He claimed he stabbed Francke three times: in the heart, arm, and torso. Although Francke was stabbed through the left bicep, and not the right forearm like Crouse said, Crouse accurately identified his other injuries: he said he slashed Francke’s arms and hands, and hit Francke on the left side of his face and eyeglasses,” Nguyen wrote.
Crouse also admitted he wore a tan jacket, which matched a description by a witness of the coat worn by an alleged fleeing assailant.
Crouse repeated his confession three more times to family members in the police’s presence, including on a recorded call to his brother and in-person to his girlfriend. He later recanted his statements and disavowed his prior confessions after the state offered him immunity from prosecution for “false statements,” the court noted.
“The fact that Crouse ‘confessed without immunity and overwhelmingly against his own penal interest’ is ‘a strong indicator of reliability,’” Nguyen wrote in the opinion.
Kristina Edmunson, spokeswoman for the Oregon Department of Justice, said the office is reviewing the appeals court decision.
Assistant Federal Public Defender Nell Brown, who represented Gable and was the lead attorney on the case, said she’s “incredibly happy” for her client.
“Although he will never get back the three decades of his life that he lost, this decision vindicates his steadfast claim of innocence and powerfully exposes the systemic flaws that led to his wrongful conviction,” she said in a statement. “The Ninth Circuit decision makes clear that, with the full story told, no reasonable jury would convict him. I’m proud of our exceptional and dedicated Federal Public Defender team for doing the work to tell that story.
She said she hopes Gable “will finally be able to enjoy the life he has created for himself in the community without this case hanging over him.” Brown said Gable has lived “a quiet, positive and successful life in the community,” while on federal supervision for more than three years.
Oregon Public Defender Lisa Hay said, “We are grateful that the rule of law prevailed and that the Ninth Circuit recognized the injustice done to Mr. Gable.”
Patrick Francke, older brother of the slain prisons chief, and his brother, Kevin Francke, have been staunch defenders of Gable and have long believed he was wrongly convicted. Patrick Francke praised Gable’s lawyer in a mass email announcing the appeals decision.
“Oregon has no case. ...Unsolved Mystery again,” he wrote in an email."
The entire story can be read at:
PUBLISHER'S NOTE: I am monitoring this case/issue/resurce. Keep your eye on the Charles Smith Blog for reports on developments. The Toronto Star, my previous employer for more than twenty incredible years, has put considerable effort into exposing the harm caused by Dr. Charles Smith and his protectors - and into pushing for reform of Ontario's forensic pediatric pathology system. The Star has a "topic" section which focuses on recent stories related to Dr. Charles Smith. It can be found at: http://www.thestar.com/topic/charlessmith. Information on "The Charles Smith Blog Award"- and its nomination process - can be found at: http://smithforensic.blogspot.com/2011/05/charles-smith-blog-award-nominations.html Please send any comments or information on other cases and issues of interest to the readers of this blog to: hlevy15@gmail.com. Harold Levy: Publisher: The Charles Smith Blog;
SEE BREAKDOWN OF SOME OF THE ON-GOING INTERNATIONAL CASES (OUTSIDE OF THE CONTINENTAL USA) THAT I AM FOLLOWING ON THIS BLOG, AT THE LINK BELOW: HL:
https://www.blogger.com/blog/post/edit/120008354894645705/4704913685758792985
FINAL WORD: (Applicable to all of our wrongful conviction cases): "Whenever there is a wrongful conviction, it exposes errors in our criminal legal system, and we hope that this case — and lessons from it — can prevent future injustices."
Lawyer Radha Natarajan:
Executive Director: New England Innocence Project;
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FINAL, FINAL WORD: "Since its inception, the Innocence Project has pushed the criminal legal system to confront and correct the laws and policies that cause and contribute to wrongful convictions. They never shied away from the hard cases — the ones involving eyewitness identifications, confessions, and bite marks. Instead, in the course of presenting scientific evidence of innocence, they've exposed the unreliability of evidence that was, for centuries, deemed untouchable." So true!
Christina Swarns: Executive Director: The Innocence Project;
