Oregon appeals ruling to release or retry Frank Gable; victim's family objects

Patrick Francke smoked his cigar in the afternoon sunlight a few yards away from where his brother died violently.

Near the bench and memorial built in Michael Francke's honor, Patrick pointed to where his brother would've been parked the night he was killed. 

On January 17, 1989, Oregon Department of Corrections Director Michael Francke left work at the corrections' Dome Building in Salem. When he reached his car, an attacker struggled with him, stabbing him in the heart. 

Frank Gable was convicted of the crime in 1991. But a federal judge ruled last month that Gable should either be released from prison or retried within 90 days because of errors during his trial.

On Wednesday, the Oregon Department of Justice announced it would appeal that ruling and wants to keep Gable incarcerated while the case is hashed out in court. 

Meanwhile, Marion County prosecutors haven't commented on whether they will retry Gable, who's imprisoned in Kansas. They say they are still reviewing evidence and testimony from the case. 

Timeline:One of Oregon's highest-profile cases, the murder of Michael Francke

Brother: Decision 'galling and baffling'

The Justice Department's decision to appeal frustrated the Francke brothers. 

Kevin Francke called the state's decision to appeal "galling and baffling."

He said Wednesday he and his family were ignored during the decision process and not allowed to contribute their hopes and desires regarding the direction of the proceedings. 

In his correspondence to the Department of Justice, he asked for a sane, reasonable explanation for why they continued to "whip this dead horse unmercifully."

"Hasn't an innocent man's life been sacrifice enough? And the millions upon millions of taxpayer dollars fabricating this sham investigation," Kevin wrote. 

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Pain of brother's murder remains

Patrick met with his brother Kevin outside Dome building on April 28. He walked up to the porch near the window where his brother was found, covered in blood. 

It has been more than 30 years since his brother was murdered, but the pain lingered. 

"If you've never been through it, there's no way to explain it," Patrick said. "It destroyed my parents. It crushed everybody in the family."

In the weeks after the ruling, Patrick felt relief. Gable, the man he long believed to be innocent, might be released, with his "freedom within sight." 

"We're urging the district attorney's office and the state attorney general to drop this farce and release Frank Gable," Patrick said. 

Kevin added, "Immediately."

During Gable's 1991 trial, the brothers attested to his innocence and urged investigators to track down the true killer.

Patrick said the evidence against Gable was weak. 

"I watched them re-enact the crime and thought it was the stupidest thing I'd ever seen," Patrick said. "None of it made any sense."

A Marion County jury convicted Gable of murder and sentenced him to life in prison without the possibility of parole. 

Judge finds flaws around confession

In his opinion issued April 18, U.S. Magistrate Judge John Acosta said the court erred in excluding evidence pointing to another possible suspect — John Crouse, a convicted felon who confessed to murdering Francke.

Acosta also ruled that Gable's defense attorneys provided ineffective counsel by failing to assert his due process rights in the face of the trial court's error.

After being arrested on an unrelated assault charge in April 1989, Crouse told investigators he saw five assailants kill Francke. He changed his story, saying a man named "Juan" promised to pay him $300,000 to kill the corrections director. 

Several details given by Crouse matched the physical evidence found at the crime scene, including Francke's stab wounds and other injuries. 

Days later, he recanted his confession.  

In a motion appealing the federal judge's ruling, attorneys for the Justice Department said investigations did not have "sufficient assurances of trustworthiness" of Crouse's confession. 

"In summary, Crouse appears to have had a penchant for telling 'stories,' regardless of
whether they were inculpatory or exculpatory, and he gave several differing accounts of his own involvement in Francke’s death, some of which bordered on the absurd," stated the motion. 

In the 30 years after the murder, several trial and grand jury witnesses recounted their confessions.

Some said they were threatened by police and coerced into giving false testimony, according to the opinion. Others said they lied to punish Gable for being a "snitch for Keizer P.D."

Acosta found that the recantations, paired with Crouse's confession, compelled officials to either give Gable a new, fair trial or release him. 

Kevin said he's hoping for the latter. 

"There's absolutely no reason for them to keep a man captive another day that is obviously innocent," he said. 

Kevin said he believes Crouse knew his brother's killer, but wasn't the one who dealt the deadly knife wound.

He pointed to several people connected to the original case, including former inmates Timothy Natividad and Charles "Buck" Burgess along with Oregon Department of Corrections officials tied up in corruption that his brother was investigating.

Francke turned prison system around

Patrick recounted Michael's childhood and years investigating prison riots, corruption and drug trafficking. 

The family grew up in an idyllic suburb of Kansas City, stay out late playing in the summer and sledding down the streets in winter. 

After graduating from college, Michael attended the University of Virginia School of Law and spent four years on active duty with the Navy. 

From there, he moved to New Mexico to work with the attorney general's office as a lawyer and eventually became head of the New Mexico corrections department. 

"He took a system that was in the pits and in four years he turned it completely around," Patrick said. "He figured out how to solve the problems, hired really good people and got it all taken care of."

His brother also recognized the importance of education. Several scholarships for Santa Fe Community College were later set up in his name. 

"He wanted inmates to have access to education," Patrick said. "It was very, very important to him. He felt education was a path out of the spiral in and out of prison." 

Gov. Neil Goldschmidt chose Michael Francke in 1987 to lead the Oregon Department of Corrections, bringing him in a reformer. 

Following his murder, a massive investigation to find the killer was launched. By 1990, it would be the longest and most expensive homicide investigation in Oregon history. 

After Gable's conviction, he was transferred to out-of-state prisons, the most recent being Lansing Correctional Facility in Kansas. He later changed his name to Franke J. Different Cloud. 

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Gable 'nervous' about possible release

Now 59 and married, Gable is waiting to find out his fate. He maintains contact with the Francke brothers. 

"I got a note through his wife thanking me, thanking the family for our efforts," Patrick said. 

He said Gable is nervous about the possibility of getting out of prison after almost 29 years. 

Through their attorney Steve Krasik, the brothers sent a letter to the Marion County district attorney and Department of Justice re-asserting their rights as crime victims and asking to be notified of critical developments and consulted by prosecutors. 

"Kevin and Patrick Francke are aware of the recent sudden change in the certainty of the conviction of the individual found guilty, 28 years ago, of killing their brother, Michael," Krasik said in the letter. "They know the current conviction’s future is immediately dependent upon tactical decisions by the Attorney General and the District Attorney."

He said the brothers were concerned about state would choose to retry the "'probably not guilty' now-convicted individual."

They were also aware the murder investigation could revert to cold-case, unsolved-homicide status. 

"The biggest thing in my mind right now is to get Frank Gable out of jail," Patrick said. "Hopefully, there's enough noise coming out of this sentence being overturned that it'll start some people talking."

The state's appeal, while unsettling, just seemed to be the more of the same to the Francke brothers. The asked that Gable at least be released while the case is pending. 

"We are convinced of Frank Gable's innocence," they said in a statement. "At the end, we believe Frank will prevail and the State will then be facing millions in reparations." 

Previous coverage:Release or retry Frank Gable, man imprisoned 30 years for killing Oregon prison director

For questions, comments and news tips, email reporter Whitney Woodworth at wmwoodwort@statesmanjournal.com, call 503-399-6884 or follow on Twitter @wmwoodworth