Wrongfully Convicted Man Freed for Murder of Oregon DOC Director, But State Wants Him Back In Prison
by Mark Wilson
"The State can no longer afford to manufacture a case built on lies and half-truths,” wrote Patrick and Kevin Francke in their letter to a federal judge in support of the man wrongfully convicted of killing their brother.
After serving 28 years in prison, Frank E. Gable, then 59 years old, walked out of prison on June 27, 2019. He was a free man but he had a cloud hanging over his head that remains there still. The state of Oregon had filed an appeal to the court order that released him, which remains pending.
On April 18, 2019, U.S. District Court Magistrate Judge John V. Acosta released the stunning decision that Gable was “probably” innocent of murder. In a 94-page opinion, he ordered the state to retry or free Gable within 90 days.
Gable was convicted for the 1989 murder of Michael Francke, Director of the Oregon Department of Corrections (ODOC).
Francke’s brothers wrote in their letter to the judge that the state should “abandon this fruitless endeavor” of trying Gable again. They hoped officials would “concede that they convicted an innocent man.” The sooner they do so, “the better and justice will be served!”
The murder of Francke occurred amidst his efforts to reform a corrupt prison system in Oregon. Francke had already turned around New Mexico’s troubled prisons in just four years when he was recruited. At age 40, Michael Francke was appointed Director of ODOC on May 1, 1987. At the time, the agency was struggling with prison overcrowding. A ten-month drug smuggling investigation of Oregon State Penitentiary (OSP) employees had also forced the 1986 resignation of the superintendent and the firing of several guards.
Francke immediately started cleaning house. By February 1988, he had commissioned a prison population study, developed a $28.5 million prison construction plan, made changes in prison management and implemented tougher disciplinary rules. He also discovered an “organized criminal element” within ODOC, according to his brother Kevin. Whatever Francke found spooked him enough that he started sleeping with a shotgun next to his bed. But that did not save him.
Just after midnight on January 17, 1989, a security guard patrolling the grounds of the ODOC administration in Salem found Francke dead outside his office. His automobile sat nearby, its driver’s door ajar, the dome light on inside.
An autopsy revealed that Francke’s assailant had attempted to stab him at least three times. One knife thrust slashed his overcoat but did not cut him. A second thrust passed through Francke’ s left bicep, slightly penetrating his chest after passing through business cards in his front shirt pocket. The fatal blow passed through Francke’s chest from left to right at a downward angle, piercing his heart. He died from blood and oxygen loss.
Investigators decided that Francke was stabbed as he interrupted a car burglar at about 7 p.m. He then staggered back toward his office and unsuccessfully attempted to punch out a windowpane of the locked door before dying on the porch, where he was found. No murder weapon was ever recovered, and no DNA or other evidence of the assailant’s identity was discovered at the crime scene.
As reported in the inaugural issue of PLN, rumors and reports quickly surfaced linking Francke’s murder to corruption within the prison system that he was about to expose.
“You want to know what I think?” asked his brother Patrick then. “I think he discovered something within the [Oregon] system ... something that he was getting ready to turn over.” [See: PLN, May 1990, p.3]. On July 14, 1989, the Salem Statesman Journal reported that the FBI was “investigating a possible connection between official corruption and drug smuggling at the state penitentiary and the murder.” Yet, local officials had little interest in the corruption allegations.
By September 1989, however, those questions could no longer be ignored, and Oregon’s then-Governor, Neil Goldschmidt (D), appointed retired Judge John C. Warden to conduct an independent investigation of ODOC.
On December 14, 1989, following a three-month inquiry, Warden issued a report finding “significant illegal activities or other wrongdoings” within the prison system, though he did not find a “reasonable” link between that and Francke’s murder. Little detail has been given on what these “significant illegal activities” were, much less prosecuting them.
Meanwhile, during what the Statesman Journal called “the most expensive homicide investigation in Oregon history,” detectives focused their attention on a motley crew of low-level drug dealers and excons.
First in line was Johnny Lee Crouse, a parolee first interviewed by detectives on February 15, 1989, after telling his parole officer that he had information about the Francke murder. He said he had been walking by the crime scene when he witnessed five men “drop some guy” and run off. Crouse even claimed to have chased one of the men for about three and a half miles but was unable to catch him. He denied any involvement in the crime, though he knew from news reports that Francke had been killed with a knife.
Detectives interviewed Crouse a second time on April 4, 1989, after he was arrested on an unrelated assault charge. For the first hour of the interview, Crouse repeated his story about the five assailants. When detectives said they did not believe him, Crouse changed his story, this time implicating himself as the killer. He said a man named “Juan” agreed to pay him $300,000 to “take care of Francke.” Crouse said he was paid a $1,500 down payment.
Crouse claimed that as Francke was getting into his car, he approached and stabbed the prison director once or twice. He later decided on twice, but he provided other details consistent with the physical evidence at the crime scene, the autopsy findings and Francke’s physical characteristics.
Later that same day, when detectives interviewed him again, Crouse changed his story once more. However, he continued to implicate himself as the killer. When he was interviewed again the next day, April 5, 1989, he asked all but one detective to leave the room before describing how he had stabbed Francke. Crouse again offered details—that he stabbed Francke “at least once in the heart, in a downward motion”—which were consistent with the autopsy results.
Detectives allowed Crouse to call his brother, and they recorded the call, during which he asked if the brother remembered a previous telephone conversation in which Crouse had admitted to killing Francke. Later that day, Crouse accompanied detectives to the crime scene, taking umbrage and becoming hostile when one touched him.
Returning to an interrogation room, one of the detectives suggested to Crouse that his violent reaction to being touched might have played a part in what happened between him and Francke. Sure enough, Crouse changed his story one more time, saying that he had targeted a car for burglary and been surprised by a man—presumably its owner—whom Crouse stabbed when the man started a fist fight. He claimed that he did not know the victim was Francke until hearing news reports the following day.
Detectives noted that this was the most convincing of all of the versions of the story Crouse had offered. But when a new detective attempted to interview Crouse on April 9, 1989, he recanted his prior confessions and denied killing Francke.
Crouse then asked to speak with the original detectives again on April 13, 1989, and recanted his recantation, saying that he “thought he would have a ray of hope to get away with” the murder when he saw the new detective. But he insisted to the others that he “could not live with getting away with the Francke murder.” During this interview, he also admitted to punching Francke on the left side of his face, consistent with a wound that Francke sustained.
On April 19, 1989, an FBI polygrapher gave Crouse two polygraph examinations. He found that Crouse was not deceptive in telling detectives that he stabbed Francke.
On June 15, 1989, Crouse was interrogated again. This time he denied killing Francke but claimed he was part of a conspiracy to cover up the murder. Also involved in the conspiracy, he said, were ODOC officials who wanted to kill Francke. Crouse even claimed that he knew who had actually committed the murder.
For reasons that were not clear to Judge Acosta, the state decided on November 29, 1989 to grant Crouse immunity from prosecution for previous false statements he had made concerning the Francke homicide. In what would be his final law enforcement interview, Crouse told detectives on November 30, 1989, that he did not kill Francke and had no involvement in the murder.
By then, investigators had lost interest in Crouse as the suspected killer. Ignoring the way his multiple confessions were corroborated by the physical evidence, they turned their attention to another low-level drug dealer and police informant named Frank E. Gable.
“I don’t know how I first got implicated,” said Gable, “but I’m real scared it’s going to end in me getting [convicted] for something I ain’t did.” [See: PLN, May 1990, p. 4].
In fact, what implicated him was a tip from another low-level drug dealer, Michael Keerins, whose brother, Kris, had been identified as a “person of interest” to the investigation in January and February 1989. That tip led investigators to interrogate Michael Keerins in May 1989, when he did not mention Gable.
By the time they returned to interview him a second time in September 1989, though, Keerins was ready to pass along a “jailhouse confession” he allegedly overheard from Gable when the two were incarcerated together at the Marion County Jail in May—the same month that he gave his first interview and failed to bring it up. Indeed, this story seems to be a tale of a group of police snitches eager to pin the blame for Francke’s murder on their fellow snitches in what would become a macabre game of pin the murder on the snitch. Gable would ultimately win.
Keerins would later admit that he lied, making up the confession he said he overheard so as to deflect suspicion from his family, as well as for personal gain and because he learned that Gable was a “snitch for Keizer PD” (the police department in Keizer, Oregon).
Like Crouse, Gable was interviewed by detectives many times, starting in May 1989, the same month Keerins later said he overheard Gable’s confession.
He was interviewed again in June 1989, after he started working as an informant for Keizer PD and an officer there noticed a resemblance between Gable and the composite sketch of Francke’s killer.
At a third interview on September 13, 1989, he continued to maintain that he did not kill Francke and had never said so. But he told the interviewer he had started to fear that “you sons of bitches were going to try to hang this on me.”
After a fourth interview on September 15, 1989, Gable was booked into jail for assaulting his then-wife. At about 12:30 a.m. on September 16, 1989, after he mentioned thinking of killing himself in the jail, a detective seized the opportunity to get him talking about the Francke murder. Gable continued to talk extensively with investigators later that day, as well as November 3, 1989, December 22, 1989, December 23, 1989 and January 21, 1990.
Like Crouse, Gable presented a version of events that shifted over the course of different interviews. Unlike Crouse, however, Gable always maintained his innocence. Furthermore, no physical evidence placed him at the crime scene nor identified him as the killer.
But after hearing testimony from Keerins and several other drug dealer and ex-con snitches, all claiming that they either witnessed Gable commit the Francke homicide or that he confessed to them that he had done so, a grand jury indicted him for murder, and he was arrested on April 8, 1990.
Gable’s four-month trial began one year later. The defense intended to introduce evidence of Crouse’s confession and called him as a witness. However, Crouse invoked his Fifth Amendment privilege against self-incrimination. The trial court then agreed with prosecutors that no other evidence about his confession could be considered by the jury. Gable’s attorneys objected that this would violate the Oregon Evidence Code. But they did not argue that it would deprive him of his due process right to present a defense, which would have been a much stronger point to make with the judge.
At trial, the state offered testimony from the drug dealers and felons who claimed that they had witnessed Gable commit the murder or that he had confessed to them afterwards. The jury did not see any physical evidence linking Gable to the homicide.
But once they were prohibited from introducing evidence of Crouse’s confession, Gable’s attorneys had no line of defense except to challenge the credibility of the state’s witnesses and to question the reliability and adequacy of the investigation. Gable did not testify.
On June 27, 1991, after deliberating less than 24 hours, the jury voted unanimously to find Gable guilty on all six counts against him of aggravated murder and one count of murder. The surviving Francke brothers were in the courtroom.
“If I had been on the jury, I wouldn’t have voted for a guilty verdict,” scoffed Kevin Francke, whose brother agreed.
“I watched them re-enact the crime and thought it was the stupidest thing I’d ever seen,” Patrick Francke said. “None of it made any sense.”
The prosecution pursued the death penalty on the aggravated murder convictions. At the conclusion of the penalty phase, however, the jury voted 10-to-2 against death. On July 11, 1991, Gable was sentenced to life imprisonment without the possibility of parole, even though that was not an available penalty at the time of the offense.
“I’m glad I didn’t get the death penalty,” Gable told the Statesman Journal. “But I’m not happy that I’m in prison without parole for a crime I didn’t do.”
Given the high-profile nature of the offense, prison officials transferred Gable out of state. He served his sentence at prisons in California, Idaho, Florida, Ohio and Nevada before he ended up in a cell in Kansas, where prison officials at Lansing Correctional Facility described him as a “model inmate.”
After Gable’s trial, the Francke brothers met with Crouse at OSP, where he was incarcerated on an unrelated conviction. Crouse told them that he did not kill Michael Francke, but he wouldn’t say who did.
Neither Kevin nor Patrick Francke believes that Crouse was the killer, but they are both certain that he knew who killed their brother. Unfortunately, that is a secret that Crouse took to his grave when he died in 2013, shortly after his release from the Nebraska State Penitentiary.
Both Kevin and Patrick still also believe that prison officials were involved in Michael’s murder.
“Francke’s family, his brothers Kevin and Pat, have been saying for years that their brother was killed because he discovered corruption within his department and was going to clean house,” noted journalist Phil Stanford, who has written extensively on the case since 1989. “Almost immediately after Francke’s murder, the authorities in charge of the investigation denied this was so—but as is now clear, that was part of the cover-up. But they needed a patsy, someone to take the fall, and Gable was it.”
After several years of unsuccessful state court litigation, Gable finally filed a federal habeas corpus action under 28 U.S.C. § 2254. He was represented in that action by Assistant Federal Public Defender Nell Brown, with assistance from the Oregon Innocence Project, to challenge his conviction.
Their efforts finally paid off when Acosta issued his April 2019 ruling vacating the conviction. In it, the judge extensively discussed the strong evidence that Gable offered in the recantations of eight grand jury and/or trial witnesses. Each admitted that they had previously lied, some because Gable was a police informant, others to divert attention from themselves and their family members, still others who received inducements and incentives from prosecutors.
Virtually every prosecution witness described threats and other coercive police interrogation tactics. Gable also offered the testimony of a polygraph expert, David C. Raskin, Ph.D., who concluded that “it is abundantly clear that polygraph testing procedures conducted in this investigation were fundamentally and seriously flawed.”
“The unethical and flawed polygraph testing procedures combined with improper and coercive interrogations appear to have provided the means to shape their statements in order to obtain false testimony from the examinees,” Dr. Raskin concluded.
By way of example, he highlighted witness Jodie Swearingen’s experience. One of those who testified against Gable at his trial was another small-time methamphetamine dealer named Cappie Harden, who said he was giving Swearingen a ride in the vicinity of the crime scene when he saw and recognized Gable and then watched him stab Francke. Swearingen stuck to the same script when she testified before the grand jury. But at Gable’s trial she recanted that testimony.
Acosta recorded what happened next: “Specifically, as to Swearingen, Dr. Raskin noted that investigators gave her 23 polygraphs in 12 separate sessions, and that she was ‘administered multiple polygraphs on at least 7 different days.’ On numerous occasions, investigators ‘confronted’ her with supposed defective responses…. Raskin states, ‘I have never seen this many tests administered to one person in the 43 years I have been working in this field…’ and (he) opined that the pattern of interrogation and confrontation combined with the sheer number of tests would have produced flawed polygraph results for Swearingen.”
“Dr. Raskin described similar flaws in the polygraph examinations of the other witnesses,” Acosta added, before finally turning his attention to Crouse.
“There is no evidence in the record that Crouse had any connection whatsoever with Gable, Swearingen, Harden, or any other member of the group of Gable’s acquaintances,” the judge noted. “Yet, 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 concluded that “the trial court’s mechanistic application of the Oregon Rules of Evidence denied Gable his federal constitutional right to present a defense.”
Finding that the error was not harmless, Acosta ruled that, “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.”’
Granting Gable’s petition for habeas corpus relief, the judge ordered the state to retry him or release him from custody within 90 days. In doing so, the court made its view of the proper outcome clear.
“In light of the totality of the evidence, including the newly presented evidence, the court concludes it is more likely than not that no reasonable juror would find Gable guilty beyond a reasonable doubt of the crimes charged.”
Gable’s attorneys agree with Acosta’s assessment.
“There’s no physical evidence to convict our client; there were just inconsistent statements by supposed eyewitnesses,” said Oregon Federal Public Defender Lisa Hay. “At the end, most of the trial witnesses later admitted they lied at the trial and there are concerns about the coercive and improper interrogation techniques that were used. No one should have confidence in the 1991 verdict.”
The ruling also brought the Francke family a measure of joy and relief.
“My brother and I have been working toward this day for almost 30 years,” Patrick Francke wrote on Facebook, adding that he and Kevin “are happy in the extreme that the very real probability that Frank Gable will be released and his freedom is within sight.”
“If nothing ever comes of this, Michael’s legacy is ‘an innocent man was set free,”’ said Patrick Francke.
For his brother, though, it will not be enough until the real killer is found. Still, Kevin Francke said, “There is no doubt in my mind that Frank Gable is innocent.”
Neither man was consulted about the state’s decision to appeal Judge Acosta’s ruling, despite the requirements of Oregon victim’s rights law. The state has also taken steps to revive its original prosecution, with detectives contacting (though hopefully not threatening) several of the witnesses who recanted their statements, according to Brown, Gable’s lead attorney.
“Mr. Gable has served nearly thirty years in prison for a conviction that is, at worst, the wrongful conviction of an innocent man, and at best, the product of a trial rife with highly suspect evidence and marred by errors of a constitutional magnitude,” she said.
In a recent letter to Oregon Department of Justice officials that called their decision to appeal “galling and baffling,” Kevin Francke also noted his family’s frustration that they were ignored in the decision-making process.
“Hasn’t an innocent man’s life been sacrificed enough?” he asked. “And the millions upon millions of taxpayer dollars fabricating this sham investigation?”
Now out of prison, Gable—who changed his name several years earlier to Franke J. Different Cloud, to honor his Native American heritage—can finally spend time with his wife, Rainy Storm, a prison pen-pal he married about four years before his release.
The state’s appeal hanging overhead still has Kevin Francke incensed. “There is absolutely no more inhumane thing they can do, because Frank Gable is an innocent man,” he declared. “They have no physical evidence. They have no witnesses. They don’t even have circumstantial evidence. They have no case left.”
Patrick Francke agrees, “There’s never going to be any pursuit of this case by the State of Oregon or Marion County district attorney. The witnesses, their evidence, has gone to the winds. People are dead. So that’s the end of it, as far as I’m concerned”
The brothers urged “the district attorney’s office and the state attorney general to drop this farce.” But they also recognized that release would represent a frightening new beginning for Gable, who “has been out of the real world for almost 30 years and will need a job and money to get started in his new life with his wife,” they wrote on a GoFundMe page they established “to help Frank get started anew.”
Kevin Francke also wrote on the GofundMe page that “Mike Francke’s legacy should not be that an innocent man’s life was tossed onto the trash pile of incarceration, then left to rot outside the walls, forgotten and abandoned.”
The only burning question that remains is whether Oregon officials will continue their efforts to taint that legacy by trying to reinstate a clearly wrongful conviction of an innocent man, or if they will now fully investigate whether there was a cover-up and work to bring Michael Francke’s real killer to justice. If Gable did not kill Francke, who did and why? The state of Oregon seems to show little interest in learning the answers to these questions.
As of October 11, 2021, the state’s appeal of Judge Acosta’s order was still pending before the U.S. Court of Appeals for the 9th Circuit. See: Gable v. Williams, USDC OR, Case No. 3:07-cv-00413-AC.
Sources: The Oregonian/OregonLive, The Statesman Journal, The Portland Tribune, KOIN, KGW, Pamplinmedia.com, gofundme.com
Related legal case
Gable v. William
|Cite||USDC OR, Case No. 3:07-cv-00413-AC|
|Level||Court of Appeals|