Ninth Circuit Upholds Order Vacating Conviction in Oregon Prison Director’s 1989 Murder; SCOTUS Declines Review
by Mark Wilson
On September 29, 2022, the U.S. Court of Appeals for the Ninth Circuit upheld a lower court’s decision to toss the murder conviction of Frank Gable, now 62, in the 1989 killing of Oregon Department of Corrections (DOC) Director Michael Francke outside his office. Although the claims were procedurally defaulted, the court concluded that default was excused under the “actual innocence” exception announced in Schlup v. Delo, 513 U.S. 298 (1995).
DOC hired Franke, then 40, in 1987, after a corruption scandal forced out several guards and a state prison warden. By 1988, Francke had discovered an “organized criminal element” of DOC employees. He was found fatally stabbed outside his Salem office just after midnight on January 17, 1989. Despite an investigation that confirmed “significant illegal activities” within the prison system, it was a parolee who confessed to the killing. Yet Johnny Lee Crouse was then granted immunity from prosecution, and investigators focused on Frank E. Gable, a low-level drug dealer and police informant. He was convicted of the murder in 1991 and spent almost three decades in prison before his conviction was overturned by the federal court for the District of Oregon in April 2019. [See: PLN, Nov. 2021, p.1.]
It was that decision which the state appealed to the Ninth Circuit. “[I]n the thirty years since trial,” the Court began, “nearly all the witnesses who incriminated Gable have recanted,” the significance of which “no reasonable juror could ignore.” Moreover, it was “undisputed investigative misconduct” that had “paved the way for a string of criminal associates to turn on Gable to help themselves.”
That investigative misconduct included “using polygraphs as a psychological club in order to elicit statements from witnesses,” the Court noted. During interviews with those witnesses who all later recanted – and all of whom “were polygraphed multiple times” – investigators confronted them with their “purported [polygraph] results in real-time,” accusing them of “lying when they were actually truthful,” feeding information during successive rounds of polygraph tests “until their stories were deemed ‘truthful,’” the Court found.
“The coercive effects of these procedures were exacerbated by ‘abusive and frightening’ interrogation techniques – threats of prosecution and prison, threats concerning the witnesses’ children and families, or promises of rewards,” the Court continued. One witness “was particularly vulnerable because she was at the time a teenage drug addict with a juvenile record,” the Court noted. “Yet, the investigators polygraphed her 23 times – the most polygraph tests that [Gable’s expert witness] had ever seen given to one person – and interviewed her 12 times. During these sessions, the investigators repeatedly threatened her with criminal repercussions until she accused Gable.” She was ultimately given immunity, like many of other witnesses.
Although Gable’s claims had been procedurally defaulted, the Court agreed the default must be excused because “the recantation evidence alone presents a compelling claim of ‘actual innocence”’ that fit Schlup. Yet Gable did “not rely on that alone,” the Court noted. “The jury never learned that before Gable was a suspect, John Crouse had confessed to the crime several times, over many months, revealing details that had not been made public.”
“Crouse’s detailed and compelling confessions, when considered with the recantation of nearly all the State’s key witnesses, are more than sufficient to satisfy Schlup’s demanding standard,” the Court held. As a result, “Gable’s procedural default is excused under Schlup because it is ‘more likely than not that no reasonable juror would have convicted him in light of the new evidence.’”
The Court ultimately concluded that exclusion of Crouse’s confessions “eviscerated” Gable’s defense and violated his due-process rights under Chambers v. Mississippi, 410 U.S. 284 (1973). It therefore affirmed the district court’s order vacating Gable’s convictions, taxing costs of the appeal to the state. See: Gable v. Williams, 49 F.4th 1315 (9th Cir. 2022).
“The State can no longer afford to manufacture a case built on lies and half-truths,” wrote Patrick and Kevin Francke, the victim’s brothers, in a 2019 letter supporting Gable. Both are certain Crouse killed their brother and that prison officials were involved. But Crouse took confirmation of that to his grave in 2013.
After Gable was released in 2019, the brothers started a GoFundMe page for him, saying their brother’s legacy “should not be that an innocent man’s life was tossed onto the trash pile of incarceration.”
“Although he will never get back the three decades of his life that he lost,” agreed Gable’s lead attorney, Assistant Federal Public Defender Nell Brown, “this decision vindicates his steadfast claim of innocence and powerfully exposes the systemic flaws that led to his wrongful conviction.”
“Oregon has no case,” Patrick Francke added. “Unsolved Mystery again.”
Incredibly, the state didn’t give up. It asked the U.S. Supreme Court for a writ of certiorari to hear an appeal to the Ninth Circuit’s decision. But that petition was denied on April 24, 2023, letting the appellate court’s ruling stand. See: Steward v. Gable, 2023 U.S. LEXIS 1720.
Additional sources: KOIN, KGW, Portland Tribune, The Oregonian, Statesman Journal
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