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Gable appeal: Innocent man in prison too long

New evidence arises, key witnesses recant in 1989 murder case


An innocent Oregon man was falsely convicted and has been wrongly imprisoned for more than 23 years.

That is the charge at the center of the federal appeal recently filed on behalf of Frank Gable, the man convicted of the controversial killing of Oregon Corrections Director Michael Francke in 1989. It asks the U.S. District Court for the District of Oregon “to grant long-delayed justice to an innocent man who became the fall guy for a crime he did not commit.”

The appeal poses a dilemma for Oregon Attorney General Ellen Rosenblum. She oversees the Oregon Department of Justice, which has 90 days to respond to the appeal. The department has successfully fought all of Gable’s appeals at the state level. They were primarily based on procedural issues, however.

Rosenblum now must decide whether to fight a much more substantial appeal that argues keeping Gable in jail perpetuates a “miscarriage of justice.”

The department declined to say how it will respond to the appeal.

“DOJ is in the process of reviewing the appeal, and we will respond in the appropriate amount of time,” spokeswoman Kristina Edmunson told the Portland Tribune.

The detailed and well-documented appeal filed by the Federal Public Defenders Office does not hinge on technicalities. The appeal does not merely allege that the investigation into Gable was flawed, although it offers plenty of reasons to believe that was the case. Nor does the appeal only contend that Gable did not receive a fair trial, although it drives that point home, too.

The appeal actually presents new evidence that Gable did not kill Francke — a sworn affidavit from his former wife, Janyne Vierra, that Gable was home when the murder was committed, based on evidence that was not available to the two of them during the investigation and trial.

In her statement, Vierra swears under penalty of law that telephone records she had not previously seen place Gable in their former house the night Francke was killed. They also reminded her of a disturbance by visitors that night that resulted in their landlord serving an eviction notice the next morning.

The appeal also includes sworn affidavits from several key witnesses at Gable’s trial recanting their testimony. This is especially important because Gable has always maintained his innocence, and no physical evidence was ever found tying Gable to the murder.

And the appeal names numerous other suspects who could have killed Francke, suspects who Gable’s attorneys were not allowed to mention to jurors. They include a man who confessed to killing Francke with detailed knowledge of the crime. An Oregon Department of Justice investigator strongly objected when that man was bypassed in favor of Gable at the time.

New trial or parole sought

The appeal was prepared by federal public defender Nell Bown. It demands that Gable either be granted a new trial or be immediately granted the possibility of parole. The main brief is 189 pages long, including detailed summaries of the killing, investigation and trial, new evidence obtained by the public defender’s office since the conviction, and numerous legal precedents supporting the appeal. It is accompanied by reams of detailed supporting documents.

Many Oregonians are familiar with the basic facts of the case, which were highly publicized at the time. Francke was discovered murdered outside the Oregon corrections headquarters in Salem on the night of Jan. 17, 1989. An autopsy revealed he died of a stab wound to the heart and also was wounded in one arm. Francke’s car was found in the parking lot with the driver’s side door open. Nothing apparently was missing from the car, and Francke still had his wallet and watch on him. A possible eyewitness said he saw Francke and a man in a light-colored trench coat near Francke’s car around the time of the murder, but could not describe the man.

No one was arrested for the crime for 13 months. During that time, rumors swirled that Francke had been investigating corruption within the corrections department. The speculation became so intense — thanks in large part to former newspaper columnist Phil Stanford — that a committee of the Oregon Legislature held hearings on the charges and then-Gov. Neil Goldschmidt appointed a special commission to investigate them. Although the committee and commission found no proof Francke was investigating corruption at the time of his death, the appeal argues the constant publicity increased the pressure on investigators to charge someone with the murder.

Frank Gable, a small-time Salem thief and methamphetamine addict, was indicted in April 1990. Marion County District Attorney Dale Penn convinced the grand jury that Francke had caught Gable burglarizing his car, and that Gable had stabbed him to death trying to escape. Because Gable never confessed, much of the testimony against him came from friends and associates, most of whom also were small-time criminals.

Gable did not testify in his own defense. The jury convicted him in May 1991 and he was sentenced to life without parole.

Five stories change

Now the Federal Public Defenders Office has filed recantations from five witnesses against Gable who said they lied under pressure from investigators or for personal gain. They are: Michael Keerins, a jailhouse snitch who was the first to implicate Gable; Cappie “Shorty” Harden, who said he saw Gable stab Francke; Jodie Swearingen, who said she also witnessed the murder; Dan Walsh, who said Gable confessed killing Francke to him; and Kevin Walker, who also said Gable confessed to him.

The appeal also names several people who could have killed Francke, drawn from the original investigative records and research conducted after Gable was convicted. One, John Crouse, confessed to killing Francke and described the scenario that eventually became the prosecution case in great detail. According to the appeal, Oregon Justice Department investigator Randy Martinek, who interviewed and investigated Crouse, is still convinced his confession was genuine.

“Numerous suspects with better motives and opportunity than Gable, and even suspects who confessed to the murder such as John Crouse, were briefly investigated and then bypassed for eight months until the investigation stalled,” according to the appeal.

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