Judge orders state to ‘completely expunge’ records of Frank Gable’s conviction in 1989 killing of Oregon prison chief

Citing the extraordinary circumstances of Frank Gable’s “constitutionally invalid” conviction in the 1989 killing of Oregon prison chief Michael Francke, a federal magistrate has ordered the state to “completely expunge” all records of his prosecution.

U.S. Magistrate Judge John V. Acosta’s nine-page written ruling Friday expands on his brief order Monday that barred the state from retrying Gable for Francke’s fatal stabbing and granted Gable’s full release, lifting his federal supervision.

“Considering this court’s determination that Gable is entitled to unconditional discharge from the constitutionally invalid conviction obtained against him by the state of Oregon, Gable is entitled to have that conviction and all the effects stemming therefrom completely expunged from his record,” Acosta wrote.

Gable, now 63, had served nearly 30 years of a life-without-parole sentence when he left prison on June 28, 2019, shortly after Acosta issued his first stunning ruling in the case, throwing out Gable’s murder conviction. Gable has remained on federal supervision since then, living in Kansas and working for a concrete contractor.

Francke, 42, bled to death from stab wounds and was found dead on the north porch of the Dome Building, where he worked in Salem. The door of his nearby state-issued Pontiac stood open, its dome light found on.

Acosta found in April 2019 that no reasonable juror would have convicted Gable in light of another man’s multiple confessions to Francke’s killing, which had been excluded from Gable’s trial, and because nearly all the witnesses in the case have recanted since the trial. Acosta also found that Gable’s conviction resulted from improper interrogation of witnesses by investigators and flawed polygraphs that further shaped witness statements to police.

In his latest ruling, Acosta pointed out that many of the witnesses who directly implicated Gable and have since recanted “explain they intended to frame Gable after hearing he was a police informant. They attribute their false testimony to significant investigative misconduct, which the State – remarkably – does not dispute.” He quoted from the 9th U.S. Circuit Court of Appeals, which affirmed his original decision to throw out Gable’s conviction.

If he were to be retried, Gable would be “irredeemably prejudiced,” Acosta wrote Friday.

But even if somehow the state retried Gable and won a new conviction, the judge wrote that Gable has served the prison term he would likely get under current state law. The sentence for aggravated murder is life with the possibility of parole after 30 years.

The state does not plan to appeal Acosta’s latest order, said Roy Kaufmann, spokesperson for the Oregon Department of Justice.

Last week, Oregon Solicitor General Benjamin Gutman told Acosta that the Marion County District Attorney’s Office didn’t plan to retry or reindict Gable within a 90-day deadline Acosta had set, but wanted to reserve the right to reinvestigate the case and rearrest or reindict him in the future.

But the judge made it clear that wasn’t ever an option.

“When the state elected not to retry Gable within the 90-day limit, Gable’s release became permanent and unconditional,” Acosta wrote.

Patrick Francke, Michael Francke’s older brother who has been a staunch supporter of Gable and believed in his innocence, said Friday, “I’m greatly relieved that it is all over and Frank doesn’t have to live with his wrongful conviction on his record.”

Gable, a local methamphetamine dealer at the time, was arrested 15 months after Francke’s death when another man said he saw him 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 to life without the possibility of parole.

Many of the witnesses had an antagonistic relationship with Gable, including two who believed Gable’s cooperation with police had led to their own arrests and another who claimed Gable owed him money. Eight witnesses since trial recanted their statements to police. They had either reported seeing Gable at the scene or said they heard him confess to killing the prisons director, but later all said they lied in implicating Gable.

While lawyers for the state argued the recantations weren’t credible, Acosta found they were.

Patrick Francke and his brother Kevin Francke have believed that there was a conspiracy to kill Michael Francke to cover up widespread corruption inside the state’s prison system. No one else has been charged in Francke’s killing.

John Crouse, a Salem man who was on parole for a robbery at the time, repeatedly said he killed Francke, 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 judge in Gable’s trial had excluded Crouse’s confession. Crouse is no longer alive.

While Acosta previously noted that Crouse gave conflicting statements to police and later recanted his confession, he found that 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 also cited an investigator’s contemporaneous notes taken of Crouse’s interview that indicated Crouse was “spontaneous and smoothly spoken” when he confessed and didn’t hesitate answering questions like he did at other times.

Acosta found that the exclusion of Crouse’s confessions violated Gable’s due process rights. The 9th Circuit upheld Acosta’s ruling, calling the facts of the appeal extraordinary. The state petitioned the U.S. Supreme Court to intervene and reinstate Gable’s conviction, but the nation’s high court last month declined to hear the case.