GST: "On January 17, 1989, 42-year-old Michael Francke, the director of the Oregon Department of Corrections, was stabbed to death on the grounds of the Oregon State Hospital in Salem, Oregon.
Francke was last seen alive around 6:45 p.m. near his office in the Dome Building, which was the hospital reception building (the facility had been immortalized in Ken Kesey’s 1962 novel One Flew over the Cuckoo’s Nest) and housed the administrative offices of the Department of Corrections.
Between 7:05 and 7:20 p.m., several people saw Francke’s car door ajar in the front parking circle. A security guard found Francke’s body several hours later at 12:40 a.m. outside the north portico of the building. Francke died of a fatal stab wound to the heart. Evidence showed that Francke had climbed the stairs and attempted to gain entry to a locked door by breaking a pane of glass. He apparently died before getting any further. His body could not be seen from the ground and was discovered by a security guard who climbed the stairs.
The murder weapon was never found. Several months later, in September 1989, police interviewed Michael Keerins as a possible suspect in the crime. Keerins said that Frank Gable, who had turned 30 a month earlier, had admitted to killing Francke. Keerins said that Gable said he killed him after Francke caught him burglarizing Francke’s car.
Not long after, the news media reported Keerins’s claim and revealed that Gable, who was a methamphetamine user and drug dealer with past convictions for drug crimes, had worked in the past as a police informant.
Ultimately, police assembled a group of people, all of whom knew Gable from the Salem drug scene. All had similar checkered pasts. One, Cappie “Shortly” Harden, reported that he saw Gable stab Francke. Harden claimed that he was at the Dome building picking up his girlfriend, Jodie Swearingen, when he saw the attack.
Five other witnesses claimed Gable incriminated himself.
On April 8, 1990, police arrested Gable just before he was set to be released from jail after serving a sentence for domestic abuse. On April 9, 1990, Gable was charged with Francke’s murder. The prosecution said it would seek the death penalty.
Gable gave an interview from his jail cell, saying, “Don’t let me get railroaded. I just ask that they not stop looking. There’s a killer out there somewhere.”
In March 1991, Gable went to trial in Marion County Superior Court. The prosecution contended that Gable was trying to steal “snitch papers” out of Francke’s car when Francke confronted him. Gable then stabbed him and fled.
There was no physical or forensic evidence tying Gable to the crime.
Wayne Hunsaker, a hospital custodian, testified that around 7 p.m., he saw two men in an altercation, facing each other in the parking circle. Hunsaker said he could not identify either one. He said he heard a sound like someone “had their breath knocked out.”
Hunsaker said one man, whose description resembled Francke, then headed briskly toward the Dome building. The other man, who was wearing a tan trench coat, ran west down the driveway and disappeared behind a hospital generator.
Prior to trial, Keerins, who had been the first to incriminate Gable, recanted and did not testify.
The prosecution’s other witnesses included:
--Earl Childers, who testified he saw Gable driving near the murder scene and that Gable admitted to stabbing Francke while Childers and Gable were consuming methamphetamine.
--Mark Gesner, who testified that Gable asked him to get rid of a bag of clothing the night of the murder.
--John Kevin Walker, who testified that Gable confessed to committing the murder the day after the crime while they were completing a drug deal.
--Daniel Walsh, who told the jury that Gable confessed while he was high a few months after the crime.
--Linda Perkins, who testified that the morning after the murder, Gable admitted that he had “fucked up big time,” and that she would “read about it in the papers.”
--Janyne Vierra Gable, who was Gable’s then-wife [whom he had beaten and gone to jail for prior to the murder]. She testified that she was home alone with her daughter the night of the murder while Gable stayed out that night with their car.
The defense sought to impeach the witnesses with evidence that they had criminal records, were drug dealers or were drug addicts.
Police officers testified about what Gable said during several interviews. Although Gable repeatedly and consistently denied killing Francke or knowing who did, he did admit he had speculated about the case with friends. Gable admitted that he frequently wore a tan trench coat that resembled the coat worn by the man that Hunsaker said he saw running away.
In one of the interviews, Gable said, “My mind keeps saying you did it, you did it, you did it, and all of the time I know I didn’t.”
In another exchange, later characterized by an appeals court as “confusing,” Gable said there were “only two people who know who killed Francke – Francke and God.” When a detective said that Francke couldn’t know because he was dead, Gable replied, with a puzzled look, “Well, there are only two people who know Francke – yeah, me and God.”
Gable then added, “I’m going to the end of the trial saying I didn’t do this…I’ll go to heaven saying it and all those [obscenity] will go to hell for lying.”
During the interviews, which began eight months after the murder, Gable said his memory of dates was hazy because of his significant drug use. He said he could not be certain of his whereabouts on the night of the crime, but he believed he was home with his wife hosting a party. He also said he could have been out with a friend doing or selling drugs.
The defense sought to present evidence that John Crouse had confessed to killing Francke. A few weeks after the murder, Crouse made an unprompted statement to his parole officer that he had information about Francke’s death. At first, Crouse said he saw a group of men beating up another man outside the Dome building. But then, he said a man named Juan had paid him $300,000 to kill Francke.
Two months later, in April 1989, Crouse said he was walking by the Dome building when he decided to break into a car. He said Francke caught him in the act and tried to detain him. Crouse said he punched Francke in the face and stabbed him before running away.
Crouse had repeated his confession three more times to family members in the presence of police officers. First, he asked to call his brother. During the call, which was recorded, Crouse again admitted to the crime, and noted that he might face the death penalty. He then called his mother and confessed again. And finally, police brought in his girlfriend and, in tears, he confessed the crime to her.
Crouse had recanted twice. After his first recantation, he then recanted the recantation days later. In June 1989, he had said, he was involved in a conspiracy with corrections officials who wanted Francke killed because he had learned they were allowing drugs to be smuggled into the prison.
In November 1989, the prosecution had offered Crouse immunity from prosecution for any “false statements” to police. Crouse accepted the offer, and then recanted for the final time.
The defense argued that Crouse had provided details that were consistent with evidence that had not been publicly revealed. This included that Francke had been stabbed three times. He accurately said he slashed Francke’s arms and hands and hit Francke on the left side of his face and eyeglasses. Crouse had admitted he wore a tan jacket as described by Hunsaker.
The prosecution objected and the trial judge refused to allow the evidence to be presented.
Jodie Swearingen, Harden’s girlfriend, testified for the defense and rebutted Harden’s claim that he saw Gable stab Francke. She said his account was false and that the police had pressured her to lie to the grand jury to support Harden. The prosecution was allowed to impeach Swearingen with her grand jury testimony, which had corroborated Harden.
Gable’s landlord testified that Gable and his wife had hosted a loud party on the night of the murder. She said she served them with an eviction notice the following day because of the raucous affair. The defense did not use her testimony to impeach Gable’s then-wife’s testimony that she was home alone all night with her daughter.
On June 27, 1991, after four months of trial, the jury convicted Gable of aggravated murder, a capital crime. The jury rejected the prosecution’s plea for a death sentence and voted to sentence Gable to life in prison without parole.
The Oregon Court of Appeals affirmed his conviction in 1994. By then, the façade of the prosecution’s case was starting to crumble. In 1993, Walker admitted that his testimony that Gable confessed to him was a lie. And Walker further said that Keerins and Gesner had admitted to him that they had lied as well.
In March 2007, Gable filed a federal petition for a writ of habeas corpus. The case moved slowly. In March 2014, Gable’s legal team, Nell Brown and Mark Ahlemeyer, filed an amended habeas petition asserting more than two dozen claims for relief. Although 19 of those claims had been defaulted because they were not raised in state court, the federal court eventually ruled that the default was excused because the evidence showed “actual innocence.”
The petition offered evidence of further recantations.
Harden had recanted in 2005 and again in 2009. He said his trial testimony that he was picking up Swearingen when he saw Gable stab Francke was fabricated. He said that he first told police that he was not a witness. However, after being repeatedly questioned, polygraphed, threatened with arrest, and told that Gable had implicated him in the crime, Harden decided to frame Gable.
In 2010, Swearingen, who had testified for the defense, gave two affidavits saying she had lied to the grand jury when she said she and Harden saw the murder. Swearingen, who was at the time a teenage drug addict, had been polygraphed by police 23 times and interviewed by police 12 separate times prior to testifying before the grand jury. She said the police had repeatedly threatened to charge her with a crime until she accused Gable. She said that she decided to implicate Gable in part because she believed that as a police informant, he was “a rat.”
Gable’s former wife, Janyne, had given a statement in 2010. She said that after being shown a copy of the eviction notice, she recalled that she and Gable had hosted a party the night of the murder. She said that Walker and Gesner had attended. Her statement contradicted her trial testimony that Gable was out all night.
In 2011, Walsh recanted his trial testimony that Gable, while “strung out” on drugs, had admitted he stabbed Francke after Francke caught Gable “jockey-boxing” Francke’s car. The term is used to describe the action of walking along cars and pulling on car door handles to find unlocked vehicles to search for valuables. Walsh said Gable never confessed to him.
In 2015, Walker gave an additional recantation, repeating that he and Gesner were at the party. He added that his testimony at the trial that he had not seen Gable until the day after murder was false.
Walker and Walsh said that when police first interviewed them, they said they knew nothing about the murder. However, after being repeatedly polygraphed and told their claims of ignorance were untruthful, they relented. Walker said he was threatened with being charged with Francke’s murder. Walker also said that he and Gesner had been arrested in a drug raid prior to the murder after Gable snitched on them, so he and Gesner retaliated by falsely implicating Gable.
Childers, who had testified that he saw Gable driving near the scene of the murder and that Gable later confessed to him, no longer had confidence that either fact was true.
During the habeas litigation, Gable’s lawyers presented the opinion of Dr. David C. Raskin, an expert in experimental psychology and human psychophysiology. He said he researches and trains law enforcement on polygraph techniques. Raskin said that the “techniques used in this case suggest that the police were using polygraphs as a psychological club in order to elicit statements from witnesses.”
Raskin said that during the polygraph sessions, the police confronted the witnesses with the purported results, accused them of lying when they were actually truthful, fed them information, and kept repeating polygraphs until their stories were deemed “truthful.” He said the 23 polygraphs administered to Swearingen were the most he had ever encountered for one person.
Raskin said the coercive effects were heightened by the “abusive and frightening” interrogation techniques – threats of prosecution and prison, threats concerning the witnesses’ children and families, as well as promises of rewards.
In April 2019, U.S. Magistrate Judge John Acosta, in a 94-page ruling, granted Gable’s petition on the ground that his defense should have been allowed to present the evidence of Crouse’s admissions at Gable’s trial. Judge Acosta also ruled that Gable’s trial defense lawyers had provided an inadequate legal defense by “failing to present appropriate legal support, including citation to federal law, in support of [Crouse’s] guilt.” Judge Acosta granted the writ, ordered Gable’s conviction vacated, and granted a new trial.
The prosecution appealed. On June 28, 2019, Gable was released on bond.
On September 29, 2022, the Ninth Circuit U.S. Court of Appeals affirmed the new trial ruling. The appeals court noted, “The facts on appeal are extraordinary. Since trial, nearly all the witnesses who directly implicated Gable have recanted. Many explain they intended to frame Gable because he was a police informant. They attribute their false testimony to significant investigative misconduct, which the State – remarkably – does not dispute.”
“What we now know, and the jury did not, is that the testimony of the State’s main witnesses was irreversibly tainted by coercive investigative techniques, and that another man gave compelling confessions on multiple occasions,” the appeals court declared.
The court painstakingly detailed the recantations and concluded that in the aftermath, the only prosecution witness left was Linda Perkins, who said that the morning after the murder, Gable said he had done something bad. However, the court noted that two people who were present during that conversation had said Perkins was not truthful.
One of those two, Randy Studer, said that he, too, had been questioned by police, said he knew nothing. But after he was repeatedly polygraphed and interrogated, he agreed to falsely accuse Gable before the grand jury. Studer had recanted prior to the trial, did not testify and “to this day maintains that Perkins made up her story,” the appeals court said.
The appeals court said that the trial judge’s exclusion of the evidence of Crouse’s confessions, relying upon application of the Oregon evidence rules, was “incomplete and almost certainly wrong.” But even if the application of the rule was correct, the exclusion violated Gable’s right to due process, the court said.
“Crouse’s confessions have strong indicia of reliability,” the appeals court said. “He confessed within months of the murder, multiple times, in several forms, to nearly unimpeachable witnesses and his family, with no apparent ulterior motive, and clear against his penal interest.”
The court noted that Gable’s defense was innocence, but the exclusion of Crouse “left only Gable in view. As the only suspect, Gable’s cryptic statements to the police and his meth-fueled boasts to his friends appeared to confirm the police’s focus on him at trial.” That evidence, however, “pales in comparison to Crouse’s detailed and accurate confessions, made under circumstances that strongly support their reliability.”
On May 8, 2023, Judge Acosta ordered the indictment against Gable to be dismissed “with prejudice,” meaning that Gable could not be retried again.
– Maurice Possley
PUBLISHER'S NOTE: I am monitoring this case/issue/resource. 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/120008354894645705/47049136857587929
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;
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YET ANOTHER FINAL WORD:
David Hammond, one of Broadwater’s attorneys who sought his exoneration, told the Syracuse Post-Standard, “Sprinkle some junk science onto a faulty identification, and it’s the perfect recipe for a wrongful conviction.”
https://deadline.com/2021/11/alice-sebold-lucky-rape-conviction-overturned-anthony-broadwater-1234880143/
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