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State opposes some DNA testing in Gable murder appeal

UPDATE: Defense attorneys ask court to consider wishes of victim's family


DNA testing is the latest contested issue in Oregon's most controversial murder case, the 1989 killing of state Correction Department Director Michael Franke.

Public defenders for the man convicted of killing him, petty Salem criminal Frank Gable, have asked to retest Franke's glass and two articles of clothing for additional evidence as part of their appeal of his life-without-parole sentence.

Attorneys with the Federal Public Defender's Office say the areas they want tested are different than where tests had previously been conducted. In addition, the attorneys say, newer testing techniques now available may reveal new evidence, a position supported by a technician who assisted with the original testing.

But the Oregon Department of Justice is opposing the request. In a May 16 filing in the Oregon United State District Court, state attorneys say the case against Gable was not based on physical evidence connecting him to the scene of the crime.

"Rather, the State’s case against petitioner was based largely on witness statements, petitioner’s statements, and other circumstantial evidence. Petitioner’s case has never been a 'physical evidence' case, and, as the record stands, there is no DNA evidence linking petitioner to Francke or the crime scene," the state's filing says.

Gable's attorneys filed a request on May 3 to retest Franke's glasses, overcoat and scarf. In their filing, the attorneys say the retesting is in support of Gable's claim that he is innocent of the crime. According to the filing, new testing techniques could identify DNA from a suspect the state did not fully investigate.

"Good cause for DNA testing of the three items exists because the request is narrow and specifically tied to Mr. Gable’s innocence claim, and there is a likelihood that the results will further support Mr. Gable’s innocence and/or inculpate a third party," the filing says.

As part of its filing, Gable's attorneys included a declaration from a chief investigator of the public defender's office who interviewed Alan Keel, a criminalist employed by Forensic Analytical Sciences of Hayward, California. Keel had assisted with the original DNA testing in 2000 and 2001 while working with Forensic Science Associates, of Richmond, California.

"Mr. Keel said that in his opinion as a criminalist and DNA expert it is reasonable for us to request that the court authorize additional DNA testing … and that such testing may lead to the discovery of new relevant scientific evidence regarding Mr. Francke’s assailant," reads the declaration by William Teesdale.

Retesting the glasses could be especially significant. In an earlier filing, Gable's attorneys revealed that another petty Salem criminal, Johnny Crouse, confessed to killing Franke before Gable emerged as a suspect. Among other things, Crouse said he hit Franke in the head when they struggled.

Franke's autopsy revealed bruising around one of his eyes, a fact that had not been released before Crouse confessed. Crouse was never charged in the crime, although his description of the fatal encounter is almost exactly how prosecutors said Gable killed Franke.

In a May 24 reply, Gable's attorneys say, "The fact that the State did not use physical evidence to convict Petitioner does not mean that Petitioner should not be allowed to use physical evidence to show someone else committed the murder. Petitioner’s position is, and has been for twenty-seven years, that he did not commit this murder. DNA testing could establish who did. Although the State has not addressed it, the victim’s family would like the requested testing completed and the Court can and should consider the family’s wishes."

According to prosecutors, Franke caught Gable breaking into his car as he was leaving his office on the evening of Jan. 17, 1989. Prosecutors say Franke grabbed Gable, who pulled out a knife and stabbed him in the heart before running office. Franke's body was found at the scene the next morning.

The conviction is controversial for several reasons, including reporting at the time that Franke, who had been hired from out of state, had discovered evidence of corruption within the Oregon Department of Justice that he was trying to root out. Gable has always maintained his innocence.

The state is not opposing the testing of three hairs found at the scene. Two have not been tested before.

You can read the public defender's request for additional DNA testing at http://tinyurl.com/gmudu7d.

You can read the state's response http://tinyurl.com/h2mvk43.