State to ask U.S. Supreme Court to review lower court’s decision vacating Frank Gable’s conviction

The Oregon Department of Justice intends to petition the U.S. Supreme Court to review the recent ruling by a lower court that vacated Frank Gable’s conviction in the 1989 murder of Oregon Corrections Director Michael Francke.

The state will file its petition before a late December deadline, Kristina Edmunson, a spokesperson for the state Justice Department, said Friday.

The 9th U.S. Circuit Court of Appeals late last month affirmed an Oregon federal judge’s ruling that led to the release of Gable from prison.

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 the 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 30 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.

During a phone conference Friday with lawyers from both sides, Acosta agreed to maintain a hold on his order pending the outcome of the state’s petition to the nation’s high court to review the case. That means Gable, who has been out of custody living in Kansas since June 2019, is to remain on federal supervision.

On June 28, 2019, Gable walked out of the Lansing Correctional Facility, in Kansas, where he had been most recently held 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.

Gable, a local methamphetamine dealer at the time, was arrested 15 months after Francke’s death when another man said he saw Gable 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. Crouse is no longer alive.

The state had 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.

Oregon Federal Public Defender Lisa Hay said her office is dismayed that the state is continuing to challenge the findings in Gable’s case.

“We are surprised and disappointed that the Oregon Department of Justice is trying to revive a conviction that four federal judges have now found to be unjust,” she said in a statement Friday. “Across the country, prosecutor’s offices are forming conviction integrity units to guard against the kind of unfairness that results in wrongful convictions.  As the Ninth Circuit recognized here, the state’s case against Mr. Gable was tainted by ‘significant investigative misconduct,’ and the trial court unconstitutionally excluded another man’s confession to the same crime. We hope that the Department of Justice will reconsider its position and recognize that Mr. Gable’s conviction does not meet our community’s standards for integrity and fairness.”

Assistant Federal Public Defender Nell Brown, who represented Gable and was the lead attorney on the case, said last month after the appeals court ruling that she was “incredibly happy” for her client. She said she hoped Gable would “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.

Francke’s brothers Patrick Francke and Kevin Francke, who have been staunch defenders of Gable and have long believed he was wrongly convicted, had urged the state in an email not to challenge the 9th Circuit ruling and “end this prosecution, which we consider a persecution of an innocent man.”

— Maxine Bernstein

Email mbernstein@oregonian.com; 503-221-8212

Follow on Twitter @maxoregonian

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