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Nell Brown Mark Ahlemeyer Assistant Federal Public Defenders 101 S.W. Main Street, Suite 1700 Portland, Oregon 97204 Telephone: (503) 326-2123 Facsimile: (503) 326-5524 E-mail: [email protected] [email protected]
Attorneys for Petitioner
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
No. 3:07-cv-00413-AC
FRANK E. GABLE, REPLY TO RESPONSE TO BRIEF IN SUPPORT OF Petitioner, AMENDED PETITION FOR WRIT OF HABEAS v. CORPUS
ORAL ARGUMENT REQUESTED MAX WILLIAMS, EVIDENTIARY HEARING Respondent. REQUESTED ______
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TABLE OF CONTENTS
I. INTRODUCTION...... 1
II. THE COURT SHOULD REJECT THE STATE’S ARGUMENT THAT THE PETITIONER HAS NOT DEMONSTRATED INNOCENCE UNDER SCHLUP...... 2
A. Petitioner’s Evidence Of Innocence Is Reliable...... 3
1. The Recantations Are Corroborated By The Witnesses’ Initial Statements Denying Knowledge...... 4
2. The Recantations Are Corroborated By Scientific Evidence Demonstrating The Trial Testimony Is The Product Of Interrogation Tactics That Tend To Produce False Statements...... 5
a. The Task Force’s Use Of The Reid Method Produced False Statements At Trial...... 5
b. Contamination Error And Use Of Polygraphs Shaped The False Statements...... 9
3. The Trial Testimony, Much Of Which Has Been Recanted, Is Unreliable and Uncorroborated...... 16
B. The State’s Attacks On The Petitioner’s Evidence, Recent Investigation, And Newly Submitted Evidence Do Not Diminish Gable’s Innocence Evidence...... 19
1. The State’s Generalized Attacks On The Recantations Fall Short Because The Record Corroborates The Recantations And Undercuts The Sanitized Trial Testimony Relied On By The State...... 19
2. Despite The State’s Attack On Walker’s Recantation, Gable Never Confessed To Walker...... 22
3. Despite The State’s Attack On Walsh’s Recantation, Gable Never Confessed To Walsh...... 24
4. Despite The State’s Attack On Harden’s Recantation, He Was Not An Eyewitness To The Crime...... 25
5. The State Focuses Selectively On Swearingen’s Favorable Pre-Trial Statements And Ignores The Inconsistencies Between Her Testimony And That Of Harden...... 25
i
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6. Despite The State’s Attack, Keerins’s Recantation Is Relevant...... 30
7. Despite The State’s Attack, Dr. Raskin’s Affidavit Is Reliable And Based On The State’s Own Investigation Of Its Key Witnesses...... 31
8. The Reaffirmation Of Problematic Trial Testimony Without Accounting For The Problems Does Not Diminish Gable’s Innocence Evidence...... 33
9. Childers’s New Affidavit Renders Him Less Credible, But Does Not Diminish Gable’s Innocence Evidence...... 34
10. Janyne’s New Affidavit, Which Purports To Recall New Incriminating Information Never Disclosed To The Task Force, Renders Her Less Credible...... 36
11. Janyne’s New Affidavit Contradicts Her Own Trial Testimony, But Gable’s Alibi Remains Intact...... 39
12. The State Omits The Context For Gable’s Statements About Alibi...... 41
13. The State Still Takes Gable’s Innocent Statements Out Of Context To Make Them Appear Inculpatory As It Did At Trial...... 44
C. The State’s Investigation Uncovered Additional Evidence Of Crouse’s Guilt. ... 48
III. RELIEF IS WARRANTED BECAUSE GABLE’S CONSTITUTIONAL RIGHT TO PRESENT A COMPLETE DEFENSE WAS VIOLATED BY THE EXCLUSION OF EVIDENCE OF CROUSE’S GUILT...... 52
A. Chambers Establishes A Fundamental Constitutional Principle...... 52
B. The State’s Analysis Of The Evidence Corroborating Crouse’s Confession Is Flawed...... 57
1. Petitioner Focuses On The Crouse Confession Believed By The Task Force And The FBI...... 58
2. The State’s Claims Regarding The Physical Evidence Fail To Account For Corroboration Of The Crouse Confession...... 59
3. The State Ignores Corroborating Evidence And Focuses On What The State Could Not Substantiate...... 62
C. Petitioner Was Prejudiced By The Chambers Error...... 63
D. The Court Should Consider All Of The Crouse Evidence...... 65 ii
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IV. RELIEF IS WARRANTED BECAUSE PETITIONER RECEIVED INEFFECTIVE ASSISTANCE WHEN HIS ATTORNEY FAILED TO MEANINGFULLY CONFRONT THE STATE’S CASE...... 66
V. GABLE’S SENTENCE VIOLATED THE EX POST FACTO CLAUSE AND, BUT FOR COUNSEL’S MISTAKE, HE WOULD HAVE RECEIVED A LAWFUL SENTENCE...... 75
A. This Court Is Free To Address The Merits Of Gable’s Direct Appeal Ex Post Facto Claim...... 76
B. Counsel’s Failure To Object To The Application Of An Ex Post Facto Law At Sentencing Prejudiced Gable In Violation Of Strickland...... 77
C. The State Court Decision Is Unreasonable Because The Court Grafted An Additional Burden Onto The Straightforward Strickland Analysis...... 78
VI. CONCLUSION...... 84
iii
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TABLE OF AUTHORITIES
Alexander v. McCotter, 775 F.2d 595 (5th Cir. 1985) ...... 71
Boyde v. Brown, 404 F.3d 1159 (9th Cir. 2005) ...... 66
Brecht v. Abrahamson, 507 U.S. 619 (1993) ...... 63-64
Brookhart v. Janis, 384 U.S. 1 (1966) ...... 71
Carriger v. Stewart, 132 F.3d 463 (9th Cir. 1997) ...... 20-21
Chambers v. Mississippi, 410 U.S. 284 (1973) ...... passim
Chia v. Cambra, 360 F.3d 997 (9th Cir. 2004) ...... 53, 56, 64
Christian v. Frank, 595 F.3d 1076 (9th Cir. 2010) ...... 54-55
Correll v. Ryan, 465 F.3d 1006 (9th Cir. 2006) ...... 70
Cudjo v. Ayers, 698 F.3d 752 (9th Cir. 2012) ...... 53, 54
Eze v. Senkowski, 321 F.3d 110 (2d Cir. 2003) ...... 74
Glover v. United States, 531 U.S. 198 (2001) ...... 70- 80
Harris ex rel. Ramseyer v. Wood, 64 F.3d 1432 (9th Cir. 1995) ...... 66
Hill v. Lockhart, 474 U.S. 52 (1985) ...... 80
Holmes v. South Carolina, 547 U.S. 319 (2006) ...... 53, 54, 59
iv
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House v. Bell, 547 U.S. 518 (2006) ...... 2
Imbler v. Pachtman, 424 U.S. 409 (1976) ...... 23
Jaramillo v. Stewart, 340 F.3d 877 (9th Cir. 2003) ...... 22
Johnson v. Roth, 276 Or. 883, 557 P.2d 230 (1976) ...... 71
Jones v. Taylor, 763 F.3d 1242 (9th Cir. 2014) ...... 19-20
Kimmelman v. Morrison, 477 U.S. 365 (1986) ...... 75
Lee v. Kemna, 534 U.S. 362 (2002) ...... 77
Lunbery v. Hornbeak, 605 F.3d 754 (9th Cir. 2010) ...... 53-54
Martinez v. Ryan, 132 S. Ct. 1309 (2012) ...... 75
Montana v. Egelhoff, 518 U.S. 37 (1996) ...... 52
Nitschke v. Belleque, 680 F.3d 1105 (9th Cir. 2012) ...... 77
Parle v. Runnels, 505 F.3d 922 (9th Cir. 2007) ...... 68
Pavel v. Hollins, 261 F.3d 210 (2d Cir. 2001) ...... 70
Premo v. Moore, 562 U.S. 115 (2011) ...... 80
Runningeagle v. Ryan, 686 F.3d 758 (9th Cir. 2012) ...... 23
v
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Schlup v. Delo, 513 U.S. 298 (1995) ...... passim
Sophanthavong v. Palmateer, 373 F.3d 859 (9th Cir. 2004) ...... 83
State v. Hitz, 307 Or. 183, 766 P.2d 373 (1988) ...... 77
State v. Langley, 318 Or. 28, 861 P.2d 1012 (1993) ...... 76
State v. Walton, 311 Or. 223, 809 P.2d 81 (1991) ...... 77
State v. Wille, 317 Or. 487, 858 P.2d 128 (1993) ...... 75-78, 82
Turner v. Duncan, 158 F.3d 449 (9th Cir. 1998) ...... 66
United States v. Braggs, 196 F. App’x 442 (8th Cir. 2006) ...... 78
United States v. Myers, 892 F.2d 642 (7th Cir. 1990) ...... 70
United States v. Silva, 106 F.3d 397 at *2 (5th Cir. 1997) ...... 78
Washington v. Smith, 219 F.3d 620, 635 (7th Cir. 2000) ...... 66, 79
Wells v. Maass, 2 F.3d 1005 (9th Cir. 1994) ...... 76
Williams v. Taylor, 529 U.S. 362 (2000) ...... 70, 79, 80, 84
Wood v. Ryan, 693 F.3d 1104 (9th Cir. 2012) ...... 68
28 U.S.C. § 2254(e)(2) ...... 65
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I. INTRODUCTION.
This is a truly extraordinary case of innocence. Nothing in the State’s Response impairs the innocence analysis that is set out in the Brief in Support. Indeed, the State’s Response largely repeats the State’s trial case without meaningfully addressing the new evidence of innocence.
Much of this Reply is devoted to providing the context that establishes the unreliability of the
State’s narrative. Immersion into some of the factual details is necessary to fully respond to the
State’s submission, which glosses over those details that expose the fallacy of the State’s trial story.
While submitting the fruits of its year-long investigation to argue against Petitioner Gable’s new evidence of innocence, the State also uncovered additional evidence that supports Gable’s innocence from retired Department of Justice investigator Randy Martinak and recanting witness
Kevin Walker but chose to omit this new exculpatory information from its submission. Gable now submits new evidence from these witnesses to supplement his evidence of innocence.
In the final holistic calculus, the recantations, together with the scientific and factual evidence that corroborates them, the evidence of third-party guilt, and the alibi evidence, there can be no confidence in the outcome of Gable’s trial. Schlup v. Delo, 513 U.S. 298, 338 (1995). The
State’s implausible and unreliable circumstantial case cannot sustain Gable’s conviction for aggravated murder and a term of life in prison without the chance of parole, particularly in light of the new evidence and the documented mistakes that kept the full story from being told, including counsel’s constitutionally ineffective errors and the fact that the jury never heard the compelling evidence of Crouse’s guilt.
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II. THE COURT SHOULD REJECT THE STATE’S ARGUMENT THAT THE PETITIONER HAS NOT DEMONSTRATED INNOCENCE UNDER SCHLUP.
The State’s argument that Gable has not demonstrated his innocence is both legally and factually incorrect. As a legal matter, the State parses the innocence evidence by witness and topic, arguing that each piece of evidence, individually, falls short of establishing the Schlup standard.1
But Schlup requires the Court to undertake a “holistic” review of the evidence presented at trial together with the newly presented evidence. House v. Bell, 547 U.S. 518, 539 (2006) (“[T]he
Schlup inquiry, we repeat, requires a holistic judgment about all the evidence, and its likely effect on reasonable jurors applying the reasonable-doubt standard.”).
While not disputing that Gable has presented “new” evidence of his innocence, the State also argues that certain evidence is not “new” for Schlup purposes.2 To the extent that the State is arguing that this evidence should not be considered by the Court in evaluating innocence, that position is legally incorrect under the required “holistic” review:
Schlup makes plain that the habeas court must consider “all the evidence,” old and new, incriminating and exculpatory, without regard to whether it would necessarily be admitted under “rules of admissibility that would govern at trial.”
Based on this total record, the court must make “a probabilistic determination about what reasonable, properly instructed jurors would do.”
House, 547 U.S. at 537-38 (citing Schlup, 513 U.S. at 327-29) (some internal quotations and citations omitted). Gable’s “new” evidence—the recantations, scientific evidence, reports of pre- trial interrogations, and third-party guilt evidence—triggers the holistic analysis of “old and new.”
Id. at 538.
1 E.g., CR 101 at 103, 113, 107-110, 114, 120, 124, 128, 131, 135, 141, 143, 153. 2 E.g., CR 101 at 154, 114, 123, 127-28, 134.
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As a factual matter, throughout its Response, the State focuses on the rote repetition of the final, polished trial testimony of its witnesses as gospel without genuinely addressing the evidence demonstrating that much of that testimony is recanted, false, mistaken, or taken out of context.3
The trial testimony appears to fit nicely together because it was sanitized through the prosecution’s omission of inconvenient facts and glossing over of inconsistencies, and because it was never subjected to vigorous, probing cross-examination by defense counsel. The newly presented evidence of the process that produced the trial testimony exposes the unreliability of that testimony, while confirming the veracity of the recantations.
A. Petitioner’s Evidence Of Innocence Is Reliable.
Despite the State’s assertions to the contrary, the recantations are reliable evidence corroborated by undisputed, historical facts memorialized in the State’s own reports, and explained by science. The trial testimony of the State’s witnesses—now the mantra of the State in this proceeding—does not adequately account for the “material” witnesses’ initial denials of knowledge about the murder, nor does it account for the inconsistencies in the witnesses’ stories as they developed in response to repeated Task Force interrogation. Science, however, together with the recantations, explains how the Reid Method employed by the Task Force produced false testimony. In contrast to the recantations, which are corroborated by this newly presented evidence, the trial testimony was largely unreliable and uncorroborated in any real sense and is now fatally undermined by the new evidence.
3 E.g., CR 101 at 13-14, 109, 129.
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1. The Recantations Are Corroborated By The Witnesses’ Initial Statements Denying Knowledge.
The recantations are corroborated by the witnesses’ initial statements to police that they had no information that Gable was involved in the murder but were willing to implicate him in drug or other crimes. Defense counsel failed to elicit this information at trial, so the State was not required to confront the fact that these witnesses actually “snitched” from the beginning. The Brief in Support squarely raised the fact that the Task Force’s own reports indicate that the witnesses readily “snitched” during their initial interviews, demonstrating that the State’s explanation at trial for their shifting stories was hollow. CR 74 at 164 (citing Pet. Ex. E at 19-27, 40-52, 152-55, 254-
58, 264-67). Yet, without addressing that it is contrary to the historical facts set out in the State’s own reports, the State continues to rely on trial testimony it elicited from its cooperating witnesses that these initial denials of knowledge were lies told to avoid the stigma of being “snitch” witnesses.4
For example, Walker, who was out of custody at the time, initially told the Task Force he had no information about the Francke murder. Pet. Ex. E at 254-58. In its Response, the State argues that Walker denied knowledge because he was concerned about being labeled a “rat.” CR
101 at 14, 130. Yet, the State’s own report of the initial interview reflects that Walker readily told the Task Force that Gable was involved with illegal drugs and guns (i.e., “ratted”), just not in the murder. Id. The fact that Gable was involved in street crime was already before the jury so there was no tactical reason to avoid such evidence. Walker’s recantation attests that he originally told the truth when he denied knowledge of the murder. Pet. Ex. A at 37; Pet. Ex. J ¶¶ 2-4.
4 E.g., CR 101 at 5, 14, 15, 128, 130, 133.
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2. The Recantations Are Corroborated By Scientific Evidence Demonstrating The Trial Testimony Is The Product Of Interrogation Tactics That Tend To Produce False Statements.
a. The Task Force’s Use Of The Reid Method Produced False Statements At Trial.
The psychological pressure exerted by the guilt-presuming interrogation practices used by the Task Force, including the use of polygraphs (the so-called “Fourth Degree”), made it likely that the Task Force would elicit false information. CR 74 at 143-53; Pet. Ex. B at 5-16. The trial testimony upon which the State relies so heavily is silent on why it took numerous interrogations— even after witnesses implicated Gable—to develop the final trial testimony. Facts that should have been easy to recall if witnesses were drawing on memory continued to change in response to interrogation. The Task Force’s own reports record these inconsistent pretrial statements (e.g., the inconsistencies between Swearingen and Harden’s developing pretrial stories, between Studer and
Perkins’s accounts, or the internal inconsistencies that can be found in the chronology of the accounts of witnesses like Walker and Gesner).
The State did not have to confront these inconsistencies at trial because defense counsel largely failed to expose them. However, the Brief in Support, supported by Dr. Raskin’s expert testimony, explained that using Reid Method tactics on individuals with virtually nothing to lose and something to gain by confirming the investigators’ belief in Gable’s guilt was bound to—and did—produce these false statements. See Pet. Ex. B; see also The Interview, The New Yorker,
Dec. 9, 2013, found at http://www.newyorker.com/magazine/2013/12/09/the-interview-7. Yet, the State still fails to meaningfully address these inconsistencies or the scientific evidence that explains them.
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Instead of taking on the problems with the Reid Method, the State mischaracterizes Gable’s argument as being that the recanting witnesses were all “coerced” by the Task Force, chiefly though polygraph examinations, into providing false testimony. E.g., CR 101 at 150. The State construes “coercion” narrowly, focusing on intimidation, and repeats the trial testimony that the witnesses were not intimidated and did not receive benefits. E.g., CR 101 at 130. The State’s position oversimplifies what occurred.
The Task Force interviewed possible witnesses based on names Gable provided. Using the
Reid Method, the Task Force determined that certain witnesses were lying during these initial non- confrontational interviews.5 Reid premises this determination on junk science—the ability of interrogators to detect lying in verbal responses and through body language. The ability of investigators to make this all-important determination is no better than a coin flip. Once the interrogator makes the determination that a witness is lying, the interview is converted into a highly confrontational, guilt-presumptive interrogation—of the same type used on a suspect—designed to induce admissions about whatever the witness is believed to be lying.
During the subsequent interrogations, the Task Force did what Reid instructs: pursue a confession from the subject relentlessly using various techniques designed to extract the information the interrogators believe the witness possesses. Pet. Ex. B at 6. The Task Force repeatedly communicated confidence in Gable’s guilt and the belief that the subjects were lying, and used techniques to increase the anxiety associated with resisting the interrogators. The
5 E.g., Gesner, Walker, Harden, Walsh, Studer, and others who did not become material witnesses.
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interrogations only concluded once the interrogators were satisfied that the witness had disclosed what he or she knew.
These tactics are highly effective at eliciting confessions from the guilty, but where the initial determination is incorrect and a truthful person is selected for relentless interrogation, these tactics are highly likely to produce false statements. Of the witnesses that the Task Force selected for further interrogation, it was those witnesses who responded to the Reid Method by telling the
Task Force information that correlated with what the Task Force already believed and wanted to hear, i.e., that Gable was guilty, who ultimately became the “material” witnesses. The State fails to address confirmation bias, i.e., that the Task Force tended to ignore inconvenient facts and focus on facts that fit with their view that Gable was guilty. Pet. Ex. B at 7.
Whether a false statement is produced in this context depends too on the witness being interrogated. Id. Each witness in this case brought his or her own vulnerabilities to the interrogations by virtue of differences in personality traits, age, gender, cognitive abilities, and malleability or susceptibility to the interrogation process. Each witness also had his or her own motives—and not necessarily a single reason—based on his or her relationship to Gable or lack thereof, his or her fears of potential criminal charges and desire for leniency in this or other cases, and because barriers to implicating Gable were lowered because he was reported to be a snitch.6
For most of those who eventually became “material” witnesses, there was a turning point at which each decided it was in his or her own best interest to implicate Gable. This is the personal cost-benefit analysis that Reid seeks to affect. Pet. Ex. B at 6. Contrary to the State’s equation of
6 Gable does not contend that Janyne or Perkins was subjected to Reid Method interrogation. These witnesses had their own motivations to share information with the Task Force and appear to have been subjected only to non-confrontational interviews.
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coercion with intimidation or “explicit threats,” CR 101 at 130, one of the most compelling
“benefits” after several hours of this type of interrogation is simply ending the interrogation. The
State also fails to address that several witnesses (e.g., Swearingen, Walker, Harden, and Keerins) feared being implicated in the murder along with Gable, and that not being charged along with
Gable (or in other crimes) was also a “benefit” that motivated witnesses.7 Some witnesses also received more traditional benefits.8
Walker explains that the Task Force did not explicitly order him to change his story, but that he “felt tremendous pressure to do so.” Pet. Ex. J at 2. Echoing his 1993 recantation, Walker explains the pressure the Task Force employed and his response:
The police told me to “get on the bus” with them or be left standing “on the curb” with Frank Gable. I took this to mean that I would be charged in the murder as well if I did not cooperate. I feared being charged in the murder.
The police also threatened me with other new charges, such as weapons charges.
The police repeatedly told me I was lying when I was being truthful.
Little by little I changed my story in response to their questions and polygraphs, until eventually I was telling them that, after the murder, Frank Gable had confessed to me and then threatened me and my family.
In short, I changed my story to the false story I told at trial about Frank Gable confessing to murder in order to tell the police what I felt they wanted to hear and to protect myself from new criminal charges.
7 For example, when Ackom told him the polygraph results showed he participated in the murder, Harden cried and said “you’re really scaring me,” and thereafter implicated Gable. Pet. Ex. B at 13 (quoting Pet. Ex. E at 300). For Swearingen: “it became apparent during the first couple of interviews that they had already made up their minds that I was involved.” Pet. Ex. A at 22. She explained: “I was scared I would be in jail for the rest of my life if I did not tell the police what they wanted to hear.” Pet. Ex. A at 26. 8 The State argues that Studer fails to cite any favorable sentence he received for his cooperation. CR 101 at 139, n.79. He received a suspended sentence and avoided prison altogether despite facing a mandatory minimum of ten years for sodomy. Resp. Ex. 254; see also Pet. Ex. E at 161-62.
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Id. at 2, 4; Pet. Ex. A at 46; Pet. Ex. B at 14.
Many witnesses who did not become “material” witnesses were interviewed by the Task
Force using these same techniques. Many never confirmed the Task Force’s belief in Gable’s guilt, and their statements were ignored or omitted from the State’s trial case. The Brief in Support discusses witnesses, e.g., Rick Ringler, from whom the Task Force was successful in eliciting confirmation of false information, but who the State ultimately did not use because their statements did not fit with the State’s trial theory. E.g., CR 74 at 84-86.9 Some, like Studer, Swearingen, and
John and Kelly Bender, succumbed to interrogation, but recanted their false statements before trial.
Pet. Ex. A at 21-31; Pet. Ex. F at 1-6. Others, such as Shelli Thomas, never succumbed to the Reid
Method nor falsely implicated Gable despite repeated interrogations. Pet. Ex. F at 14-16.
Witnesses, such as Rick Ringler, the Benders, and Thomas, who never became “material” witnesses, describe the same pressure to tell the Task Force “what they wanted to hear” described by the “material” witnesses. See generally Pet. Ex. F.
b. Contamination Error And Use Of Polygraphs Shaped The False Statements.
For many witnesses, once they decided to implicate Gable, it still took numerous interrogations to produce the story to which they testified (e.g., Walker, Gesner, Swearingen, and
Harden). As described in the Brief in Support, these subsequent inconsistencies were the result of
9 Likewise, the State points to Chris Warila, who initially denied knowledge, but, after interrogation and polygraph, told the Task Force that Gable confessed. Warila was a Grand Jury witness, Resp. Ex. 103, but was never declared “material” to the State’s case or called at trial. The progression of Warila’s interrogations was similar to that of the recanting witnesses. He initially denied any knowledge, but implicated Gable in street crime. He was thereafter arrested and polygraphed. After a twelve-hour interrogation and being told the polygraph said he was being deceptive on whether Gable confessed, he told the Task Force Gable confessed. E.g., Resp. Ex. 280.
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the witnesses attempting to satisfy their interrogators. E.g., CR 74 at 69-78. Just as a visit to the crime scene or exposure to another witness’s statements would contaminate a subject, as occurred with Harden and Swearingen, another driving force behind the significant changes in witness testimony was the polygraphs.10 The polygraph questions exposed witnesses to facts they then incorporated into their statements.
Walker’s explanation for how he changed his story incrementally illustrates how the polygraphs shaped the final testimony. The Task Force chose not to audio record the interrogations, but reports show how, in response to questioning and polygraph, Walker’s story morphed from no confession—to a plan to commit a murder in the future—to a post-murder confession and threat.
In February 1990, the Task Force arrested Walker on outstanding warrants, and told him that “Gable committed a murder” and was telling the police that Walker was with him on the day of the murder. Pet. Ex. E at 259-63; Pet. Ex. J at 4. Walker, reasoning that he had not been involved in any murder, told police he was not with Gable. Pet. Ex. J at 4. Although Walker said he had no information relevant to the murder, Task Force lead Detective Pierce, applying Reid
Method techniques now known to amount to junk science, decided that Walker had more information. Thus, the process of polygraphing, confronting, and interrogating began. Once
Walker decided to tell police what he believed they wanted to hear, the following polygraph tests drove the material changes in his story.
10 For a discussion of “contamination error,” see CR 74 at 49 & n.28 (citing Brandon L. Garrett, Convicting The Innocent, Ch. 2 “Contaminated Confessions” (2011) and The Confessions, (PBS Frontline television broadcast Nov. 9, 2010); Pet. Ex. B at 7.
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1st Ackom Polygraph. February 22, 1990.
Ackom asked:
Q: Before January 17, 1989, did Frank Gable tell you he was going to kill a big-shot for the Corrections Department? A: No.
Q: Did Gable confess to you? A: No.
Pet. Ex. E at 406. It is not clear why Ackom focused on whether Gable confessed to Walker. Task
Force reports do not show any evidence that would have prompted this line of inquiry. Ackom told Walker that the polygraph showed his truthful denial of knowledge was a lie, Pet. Ex. J ¶ 5;
Pet. Ex. E at 405-07, and refused to rule out Walker’s participation in the murder, Pet. Ex. E at
406 (test “inconclusive” as to participation). Ackom confronted Walker about the results, and
Walker responded that “Gable never talked about Michael Francke in those terms, but, before the murder, Gable said things like “take dude of out picture” or “Dude man is going to be taken out of the box,” but did not mention names. Id. at 408-09. Walker mentioned that others—Janyne,
Kenny Farrell, and Mickey Goss—had also heard Gable make statement about “taking a guy out.”
Id. at 407. The Task Force never corroborated that Gable made such a statement in the presence of Goss, Farrell, and Janyne.
Pierce “was standing by” and interrogated Walker further the same day and got a “full statement with further admissions.” Id. Walker told Pierce that, before the murder, on two or three occasions, as early as October 1988 and possibly on a phone call on the day of the murder,
Gable told Walker he was going to “do dude man,” that “dude man” seemed like a leader, and that
Walker thought it was Francke. Resp. Ex. 287 at 10.
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2nd Ackom Polygraph. March 3, 1990.
In summarizing the investigation to date, Ackom stated that “Walker was truthful to actual participation in the murder,” even though the previous test results had been “inconclusive” on this question. Pet. Ex. E at 409. Ackom explained that “investigating officers desired a determination” on the following questions:
Q: Prior to the murder, did Gable use the word “corrections” in relation to taking dude man out of the picture? A: No.
Q: Prior to the murder, did you know, for sure, Frank Gable was being paid for killing dude man? A: No.
Q: Prior to the murder, did you know, for sure, who Frank Gable was talking about when he said he was taking dude man out of the picture? A: No.
Id. at 408-11. Ackom found Walker deceptive on all three questions. Task Force reports do not indicate that any other evidence suggested the word “corrections” had been used, nor that Gable had been paid.
3rd Ackom Polygraph. March 3, 1990.
Ackom proceeded as though he had established as a factual matter that Gable was paid for the murder after finding Walker deceptive on the payment question above. Pet. Ex. E at 408-11.
Thus, Ackom conducted a Peak of Tension test to find out how Gable was paid: As a favor? For money? For guns? For drugs? For revenge? For some other reason? Id. Walker initially said no to all possibilities, but Ackom found that the test showed Gable received at least partial payment in guns.11 The fact of payment, along with the pre-murder threat itself, would later be sanitized out of Walker’s testimony.
11 A Peak of Tension test may only confirm facts known to both the polygrapher and the subject, Pet. Ex. B at 4, and Ackom had no evidence of payment prior to the test.
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Ackom immediately confronted Walker about failing the polygraphs, telling Walker that he had lied about what Gable told him and that guns and something other than what he had listed were the payment. Pet. Ex. E at 410-11. Walker, fully trying to appease his interrogator, responded:
Yes, Gable used the word “corrections.”
Yes, Gable told him before the murder that he was being paid for taking “dude man” out.
Yes, Walker knew after the murder who “dude man” was.
Yes, guns were a possible payment for the murder.
Id. Again, Pierce was “standing by” and “got further admissions” from Walker. Id. at 411. In fact, Walker changed his story from a pre-murder threat to the post-murder confession to which he eventually testified. Resp. Ex. 287 at 10-12. Walker indicated that Robert Cornett (and possibly
Mickey Goss) also overheard the confession, but the Task Force could not corroborate this so it was omitted from the trial testimony. Id. at 12.
4th Ackom Polygraph. March 6, 1990.
Ackom then used the invalid “Statement Verification” test to conclude that Walker’s statement was true. Pet. Ex. E at 412-14. As Walker explained in his affidavit: “When the police polygraphed this statement, the polygrapher and Pierce said words to the effect that they had
‘gotten what they needed,’ and Pierce told me: ‘good job.’ I understood them to be happy with the result and with that statement.” Pet. Ex. J at 2.12
12 The State’s argument that the trial testimony was confirmed by polygraphs, CR 101 at 153, should be afforded little weight in light of the fact that the confirmatory test religiously used by Ackom for this purpose, the Statement Verification test, was invalid. Pet. Ex. B at 4.
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5th Ackom Polygraph. March 6, 1990.
Ackom then decided to administer an additional polygraph to determine whether Walker withheld any information, and concluded that he had. Pet. Ex. E at 413-14. Pierce interrogated
Walker further and Walker added that the gun he sold Gable was to be used as “backup” for a job, and that he believed the “job” was regarding “dude man” at the “joint.” Id. at 414. This additional information, along with all earlier references to a pre-murder plan to take “dude man” out and the uncorroborated fact that Cornett or others heard the post-murder confession, was omitted from
Walker’s final trial testimony, which described a confession made to Walker in private, the day after the murder.
As with most witnesses, defense counsel failed at trial to elicit testimony about Walker’s prior inconsistent statements, focusing instead on benefits he obtained in exchange for his testimony. Tr. 8187-99. Thus, the jury never knew how the details of Walker’s testimony were formed in response to questions by a seemingly omniscient Ackom, or heard the information that was omitted from trial or inconsistent with the State’s theory, problems that the State continues to ignore.
Walker’s experience is illustrative, not aberrant. Other witnesses reacted similarly to polygraphs. For example, the State cites Gesner’s trial testimony that he threw the bag Gable supposedly gave him into the Willamette River from a beach in a nearby park, CR 101 at 10-11, but fails to address that Gesner earlier told police he threw the bag from a bridge, Pet. Ex. E at
290-91. Gesner surely would remember whether he was standing on a bridge over a river or at the water’s edge in a park had his story been true. These inconsistencies on this collateral issue are also the product of the Reid Method, and, particularly, Ackom’s polygraphs, as well as Gesner’s
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desire to tell Ackom what he thought Ackom wanted to hear. Gesner told the Task Force he threw the bag off the bridge, but Ackom, relying on polygraph, told Gesner he was lying. So Gesner obliged his interrogator and adopted the riverside theory. Compare id. at 290 (Ackom: “Did you in fact throw the bag of evidence off the bridge over the Willamette River coming into Salem?”
Gesner: “Yes.”), with id. at 291 (“When confronted about the deceptiveness [on the question about from where he threw the bag]. . . Gesner stated he did not throw the bag of evidence off of the
Center Street Bridge, but rather he threw it in the river at Sunset Park in Keizer.”). The State does not address these “contamination errors” or the role that the polygraphs played in shaping the final testimony.
Instead, the State mischaracterizes the statements of the recanting witnesses that they were told they were lying when they were actually being truthful as meaning that Gable is arguing that the polygraphs were “always wrong, and that the errors always cut against [him].” CR 101 at 153.
The State adds that “[t]here is nothing in Raskin’s affidavit that would suggest that the polygraph examinations produced such anomalous results” and questions whether the tests were invalid at the time the Task Force used them. CR 101 at 151-53. Dr. Raskin’s testimony is that many of the tests used by the Task Force were then and are now unreliable and incapable of producing accurate results—whether the Task Force understood that or not. Pet. Ex. B at 4-5. 13 The State does not
13 In fact, sometimes the polygraph results even conflicted with each other. For example, Linda Perkins was polygraphed as being truthful when she said that Gable confessed to her, Ross, and Studer. Pet. Ex. E at 317-19. Ross was also polygraphed as truthful when she denied that Gable confessed to her, Perkins, and Studer. Pet. Ex. E at 331-32. The Task Force chose to believe Perkins whose statements confirmed their belief in Gable’s guilt. Likewise, Swearingen was polygraphed as truthful both when she said she was in Harden’s car and when she said she was not. Compare Pet. Ex. E at 379-80, with Pet. Ex. E at 391-92. Polygraphs are not foolproof even if administered properly, and Reid commonly employs polygraph as a false evidence ploy. The law permits such ploys, see CR 101 at 152-
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grapple with the fact that additional risk of error crept in when the Task Force repeatedly violated certain basic tenets of polygraph testing by having Ackom conduct so many of the tests and by their practice of polygraphing, confronting, and interrogating. Pet. Ex. B at 5. In any event, as
Walker explains in his recantation, he was told the first polygraph showed he was lying when he denied knowledge, but, once he decided to tell his interrogators what they wanted to hear, i.e., lie,
Ackom polygraphed his lies as truthful. Pet. Ex. A at 68-69; accord Pet. Ex. E at 447 (Gesner said he “lied on the polygraph . . . and when he lied the test came out truthful and when he was truthful they told him he lied”).
3. The Trial Testimony, Much Of Which Has Been Recanted, Is Unreliable and Uncorroborated.
In contrast to the recantations, the State’s theory was implausible and much of the trial testimony was uncorroborated. Harden’s purported eyewitness testimony, the lynchpin of the
State’s case, was improbable, never fully compatible with the stories Swearingen told, and contradicted by the unbiased testimony of Hunsaker.
Harden testified that Swearingen called him twice at “six-thirty, seven o’clock” on the evening of January 17 to pick her up from “the hospital grounds.” Tr. 8064. Although the State did not elicit these details from Swearingen at trial, in her pre-trial story that explained these two calls, Swearingen said she left Gable at the Dome Building and walked to a payphone 15-20 minutes away to call Harden, and, when Harden did not “show up” after her first call (as he testified, id.), she walked to the payphone and back to call him a second time. Pet. Ex. E at 228.
53, but the problem that the State does not acknowledge is that such tactics are so successful at extracting information that they cause innocent people to confess to serious crimes.
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This timing, which the State glossed over at trial, meant Gable loitered at the Dome Building for more than an hour before the murder.14
After Swearingen’s second call, Harden drove two miles east down Center street from his home to the OSH grounds. Tr. 8064. Swearingen had not told him where she was among the many buildings and parking lots at “the hospital grounds,” so Harden “just happened” to pick the correct driveway and pulled into the lot west of the Dome Building. Id. (“I didn’t [know where to go]. I just happened to pull in and park.”). As he parked, Swearingen came from “behind” his car and got in before he saw “the dome light” of Francke’s car come on. Id. at 8065-69. Harden then saw Gable “get into the car,” close himself inside the car, and the light went off. Id. Harden next saw Francke approach the car and yell at Gable, who came out of the car and “stab[bed] the man one time in the chest,” at which time he and Swearingen drove away. Id. at 8070-71. Hunsaker did not hear Francke yell at the assailant as Harden described, nor did he see Harden, Swearingen, or Harden’s car despite that they would have been in his line of sight. Tr. 6898.
On cross-examination about her Grand Jury testimony, the State elicited that Swearingen was acting as a lookout by a tree in front of the Dome Building’s north porch (where Francke’s
14 Swearingen could have walked to Harden’s home two miles away in half that time, or she could have asked Harden to pick her up at the pay phone. Before explaining the two calls, Swearingen had long said (in her pretrial interrogations) that Harden drove her and Gable to the Dome Building, but when the Task Force insisted this was incompatible with Harden’s insistence that he was just answering a call for a ride (i.e., he was not part of the plot to obtain snitch papers), Swearingen eventually agreed she had called Harden. Both now admit these stories were complete fabrications. The State ignores this timing when it argues that, even if Gable was home for the five- minute call at 5:38 p.m. that would not preclude Gable’s participation in the murder at 7:00 p.m. CR 101 at 105. The phone records showing a phone call between Gable and Walker ending at 5:43 p.m. make it unlikely that Gable could have picked Swearingen up and driven to the scene in time for her to walk to the pay phone twice.
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body was later found). Tr. 9367-69. Gable had disappeared briefly when she heard the porch door open and saw a tall man walk out toward his white car in the parking circle. Id. She saw Gable then struggle with the man, but then Harden “shows up” and she “run[s] over,” “get[s] in his car, and then the two of [them] take off.” Id.15
Childers, who the State now calls an eyewitness, testified that he just happened to be on a dark corner several blocks north and west of the Dome Building at the moment that his acquaintance Gable sped by. The State argued it made “common sense” that later that night Gable left a bag of incriminating evidence with his drug-supplier, Gesner (a person Gable described to police in interviews as someone who would “give him up” and “roll in a minute”), and asked him to dispose of it. Tr. 7987-92, 9891; Resp. Ex. 294 at 239-41.16 Yet, the State was unable to duplicate how Gesner described he disposed of the bag in the Willamette River, and was unable to recover the bag, leaving Gesner’s bare testimony uncorroborated.
The morning after the murder, Gable supposedly talked to Studer, Ross and Perkins about
“the Francke case,” although Studer and Ross did not corroborate Perkins’s testimony that this vague confession ever occurred. Thereafter, according to the State, Gable repeatedly confessed privately to acquaintances over the next seven months. The State argues now, as it did in closing argument, that the trial testimony of these acquaintances, including Perkins, Gesner, and Childers,
15 As discussed more below, Swearingen and Harden could never provide consistent accounts of whether or not Swearingen was in Harden’s car at the time of the murder, whether Gable had attacked Francke from behind or while lunging out of the car, what Gable was wearing, where Harden had parked, and other details. 16 The interrogation where Gable discussed his “main connection” exemplifies how the State—at trial and in its current Response—takes Gable’s statements out of context. The actual interrogation does not support the conclusion that Gable would confide in Gesner—it supports the opposite conclusion. Compare Resp. Ex. 294 at 239-41, with CR 101 at 26 & Tr. 9891.
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relating purported confessions of Gable, is reliable because the “scenario” described by the witnesses was “consistent” with Gable’s own statements or the statements of others.17 This argument seeks to bootstrap the reliability of the trial testimony onto the back of benign facts.18
The State does not and cannot point to any evidence that actually independently corroborates the confessions.
Although it appeared to fit nicely together when sanitized, the trial testimony is not believable, particularly when viewed in light of the recantations, the context in which that testimony was developed, and the evidence that the Reid Method is junk science.
B. The State’s Attacks On The Petitioner’s Evidence, Recent Investigation, And Newly Submitted Evidence Do Not Diminish Gable’s Innocence Evidence.
1. The State’s Generalized Attacks On The Recantations Fall Short Because The Record Corroborates The Recantations And Undercuts The Sanitized Trial Testimony Relied On By The State.
Ignoring the corroborating evidence in this case, the State argues that recantation evidence is generally not reliable. To support this argument, the State relies heavily on Jones v. Taylor, a recent decision finding recantation evidence in an inter-familial sex-abuse case did not establish
Herrera innocence, to argue that Gable has not established Schlup or Herrera innocence here. 763
F.3d 1242, 1243-51 (9th Cir. 2014) (finding the recantation evidence “undercuts the evidence at trial” but does not affirmatively prove innocence).19 Jones is distinguishable, and the reasons the
17 E.g., CR 101 at 29, 126, 127, 137-40, 164. 18 It is undisputed that these witnesses were acquainted with Gable. The fact that witnesses drew on actual memories of Gable when they were questioned by the Task Force is probative of nothing more than that. Even if these “scenarios” occurred and the false testimony has some kernel of truth—Gesner and Childers did go on a walk with Gable after Childers escaped from prison, and Gable was at the home of Randy Studer and Theresa Ross on a morning in January 1989—it does not mean that the entire statement is true or that Gable confessed. 19 CR 101 at 36, 101-03, 134-35, 140. Gable asserts a Herrera claim, but also submits evidence of his innocence under Schlup to excuse procedural default.
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Jones court was skeptical of the recantation evidence do not apply in this case. Unlike this case, there was no evidence in Jones to corroborate the truth of the recantations. Id. at 1248 (recantation evidence was “uncorroborated by any other evidence,” and, as such, “is properly viewed with suspicion”). Moreover, the recantations appeared to be the product of inappropriate inter-familial pressure. Id. at 1249 (recantations being all from family members “reduce[d] their weight and reliability” and their unexplained simultaneous, delayed timing “cast[] doubt on their veracity”).
Here, in contrast, the evidence—including the initial statements of witnesses, the process that produced the recanted trial testimony, and the scientific evidence—corroborates the truth of the recantations while casting doubt on the trial testimony. Unlike the family members in Jones, the recanting witnesses here were mere drug-world acquaintances of Gable over two decades ago and have no personal relationship to Gable today. In fact, many had antagonistic relationships with Gable at the time of their testimony, including Janyne, Gable’s ex-wife who claimed he abused her, Perkins, who had argued with Gable about Ross’s drug use, Walker and Gesner, who believed Gable’s cooperation with police had led to their arrests, and Childers, who claimed Gable owed him money. No pressure to recant of the type that concerned the Jones court exists here.
The State also repeatedly relies on passages from Jones that quote from dissenting opinions, most notably from the dissent in the Ninth Circuit’s decision in Carriger v. Stewart, 132
F.3d 463, 468-76 (9th Cir. 1997) (en banc), to argue that recantation evidence should be viewed with skepticism. CR 101 at 102, 134, 140. However, the majority in Carriger found Schlup satisfied based on recantation evidence and supports a finding that Schlup is satisfied here.
In Carriger, a man named Dunbar framed the defendant, a prison acquaintance, for a robbery-murder he committed, and became the chief witness for the State. Id. He later recanted
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his immunized testimony implicating the defendant under oath; he then recanted the recantation; flip-flopping a final time, he confessed on his deathbed. Id. at 466-73. The state court found
Dunbar’s trial testimony against Carriger truthful and his recantation false. Id. at 473. The Ninth
Circuit reversed, finding “[t]he entire record, viewed as a whole, does not fairly support the state court’s determination that Dunbar was more credible at trial.” Id. at 475. The Court reviewed all of the trial and post-trial evidence to assess whether the trial testimony or recantation was better corroborated, and held Carriger “has more than shown sufficient doubt about the validity of his conviction to satisfy Schlup and permit consideration of his constitutional claims. It is more likely than not that no reasonable juror hearing all of the now-available evidence would vote to convict
Carriger beyond a reasonable doubt.” Id. at 478. The same is true in this case.
As a factual matter, the State repeatedly argues that the Court should discount the recantations because the witnesses did not sign the affidavits swearing that their trial testimony was false until approximately two decades after trial.20 Yet, nearly all of the witnesses admitted years ago to falsifying testimony against Gable. Swearingen and Studer recanted prior to trial.
Witnesses said Harden, Walker, and Keerins had admitted prior to trial that their testimony against
Gable would be false. CR 74 at 45 n.24, 57 (citing Tr. 8543-50, 8563-66, 8582-85, 8594-96, 8613-
18), 63 (citing Tr. 8520-27). Although she did not testify, Gesner’s girlfriend told police before trial that Gesner admitted that he lied to police by implicating Gable. Pet. Ex. E at 446-49. Walker provided his detailed recantation shortly after trial in 1993. Pet. Ex. A at 35-79. Walsh recanted to his girlfriend in the years after the murder. Pet. Ex. A at 86. Harden first recanted publicly more than a decade ago. Resp. Ex. 393.
20 E.g., CR 101 at 101, 103.
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The State also argues that it “strains reason” to suggest that the witnesses who have not recanted are still operating under the “coercive impact of the polygraph examinations” twenty years later. CR 101 at 151. This is not Gable’s argument. However, it should not be underestimated that, when the State of Oregon knocks on a witness’s door or calls him or her on the telephone and asks whether their trial testimony, given under oath, in a murder trial twenty- seven years ago was true, the witness has every incentive to reaffirm that testimony. E.g., Resp.
Ex. 390 at 4 (it would be easier for Walsh to continue “lying”). It is far easier to simply say yes.
The FPD cannot require witnesses to be interviewed, and does not offer incentives for recanting.
Finally, the State complains that the affidavits have not been subject to cross-examination or credibility determinations. CR 101 at 102-03. Nonetheless, the State asks this Court to find innocence has not been demonstrated without holding an evidentiary hearing that would allow for such cross-examination and credibility determinations. CR 101 at 1, 36-37. This Court should find Schlup satisfied on the present record, but if the Court has concerns about the credibility of the witnesses or reliability of the new evidence, the Court should hold an evidentiary hearing to address the Schlup evidence. Jaramillo v. Stewart, 340 F.3d 877 (9th Cir. 2003).
2. Despite The State’s Attack On Walker’s Recantation, Gable Never Confessed To Walker.
The State mechanically recites Kevin Walker’s trial testimony several times, and points the
Court to a 2005 Oregonian article to suggest that Walker “has since discounted” his 1993 recantation of that testimony. CR 101 at 109-10, 129-31, 144 n.83 (citing Resp. Ex. 391).21
21 The State relies heavily on newspaper articles in lieu of its own investigation. While the Brief in Support referenced the media’s reporting of the case in 1989, such information was submitted to provide context, including to show the effect of the media on the public and the Task Force. Walker’s new affidavit shows why the State’s reliance on the media’s post-trial musings to introduce new facts into the case for the truth of the matter asserted is troubling.
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Walker now swears that his trial testimony that Gable confessed to him was false, and attests, under oath, to the information in his 1993 recantation. Pet. Ex. J. The State failed to disclose any contact with Walker, choosing instead to rely on a newspaper account. Even if no continuing
Brady duty required the State to disclose new exculpatory information, the State’s willingness to rely on the Oregonian to take a litigation position that is contrary to the State’s own investigation reflects poorly on the reliability of the State’s case.22
Rather than complaining that Walker did not review his trial testimony or waited years to recant, as the State does with other witnesses, the State instead tries to undermine Walker’s 1993 interview by incorrectly saying it was a telephone interview, by complaining it was not given under oath, “was not for the purpose of any pending legal proceeding,” and by impugning the interviewer.
CR 101 at 129-31. None of these complaints are warranted. The 1993 interview took place in person, was tape-recorded, and reflects a thorough and professional interview. See http://or.fd.org/audio/John_Kevin_Walker_Interview_Aug_6_1993.mp3. More importantly,
Walker’s new affidavit reaffirms, under oath, the truth of the information he provided in 1993.
Pet. Ex. J. That Walker’s 1993 recantation was not made in connection with any pending litigation enhances its reliability. Moreover, his recantation is corroborated by his initial statements to the
Task Force, and reports reflecting the progression of Walker’s pretrial statements in response to
Ackom’s polygraphs.
22 The Ninth Circuit has recently explained that “[e]thical duties beyond those imposed by Brady and the Due Process Clause may also compel prosecutors to disclose exculpatory evidence at any time they become aware of it.” Runningeagle v. Ryan, 686 F.3d 758, 772 n.6 (9th Cir. 2012) (quoting Imbler v. Pachtman, 424 U.S. 409, 427 n. 25 (1976) (“[A]fter a conviction the prosecutor is also bound by the ethics of his office to inform the appropriate authority of after-acquired or other information that casts doubt upon the correctness of the conviction.”)); see also ABA Model Rules of Prof’l Conduct R. 3.8 (2013).
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3. Despite The State’s Attack On Walsh’s Recantation, Gable Never Confessed To Walsh.
The State also recites Walsh’s recanted trial testimony multiple times, CR 101 at 15-16,
132-35, and argues, without support, that “[i]t is simply not credible” that Dan Walsh’s testimony is “a complete fabrication.” Id. at 132. As with other witnesses, Gable’s contention is that Walsh’s false, recanted testimony was the final product of Reid Method interrogations and contamination error—error the State refuses to confront directly. In fact, the State appears to suggest that contamination is impossible, stating: “of course” the car-burglary scenario was “unknown to police until Walsh described” it. CR 101 at 133. The State is incorrect.
Crouse first mentioned the car-burglary scenario in April 1989, nearly a year before
Walsh’s interviews. Thereafter, it became the Task Force’s working theory. As early as
September 1989, the Task Force superimposed that theory onto Gable. At that time, Keerins discussed the “bungled car burglary” theory with the Task Force, and his statements were publicized in the media. Pet. Ex. D at 119-20. Childers adopted the theory after reading the article about Keerins. Resp. Ex. 292 at 637 (“I did not start putting things together until the information began coming out in the paper about Gable and Mike Keerins.”). The theory did not appear in
Walsh’s interrogations until March 1990, months after it had been publicized.
It is undisputed that Walsh maintains today that Gable never confessed to him. Resp. Ex.
390 at 2 (Walsh “never heard petitioner say that he wanted to kill someone, that petitioner never mentioned wanting to kill Francke, that petitioner never told Walsh that he stabbed Francke, that petitioner never described how he killed Francke, and that petitioner never threatened Walsh or
Walsh’s family . . . .”); accord Pet. Ex. A at 81-83; see also Pet. Ex. A at 85-93. The State seeks to discredit Walsh because he only recalls being asked questions by defense counsel, and, in the
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State’s words “demonstrated he had very little memory as to what actually occurred at the time of trial.” CR 101 at 134. Despite not recalling that he was called as a State’s witness, Walsh’s recollection of what he was asked about appears to be accurate, and Walsh’s consistent response to being read his testimony was either “it didn’t happen” or “that’s a lie.” Resp. Ex. 390 at 3-4.
4. Despite The State’s Attack On Harden’s Recantation, He Was Not An Eyewitness To The Crime.
The State repeats Harden’s trial testimony and attacks his recantation by relying on another newspaper report. CR 101 at 121 (citing Resp. Ex. 393). It is not known whether the State contacted Harden directly. When Harden first recanted publicly in 2005, he was given $1000.00 by the victim’s family. It is unlikely that Harden has maintained his recantation for over a decade because of this payment. Moreover, in a newly submitted affidavit, E. Patrick Francke, the brother of the victim, confirms he provided Harden $1000.00 with the sole expectation that Harden would tell the truth about Francke’s brother’s murder. Pet. Ex. K. He understood Harden wanted money to leave town because he feared for his safety if he told the truth. Id.
5. The State Focuses Selectively On Swearingen’s Favorable Pre-Trial Statements And Ignores The Inconsistencies Between Her Testimony And That Of Harden.
For over a quarter century, Swearingen has maintained that she falsely implicated Gable.
Focusing on selections from statements Swearingen made while in juvenile detention at Hillcrest
School, and ignoring internal inconsistencies among the numerous stories she told during dozens of subsequent interrogations and polygraphs, as well as inconsistencies with Harden’s testimony, the State now asks this Court to believe that she was actually an eyewitness to the murder. CR
101 at 114-18. Counsel failed to highlight these problems at trial, so the State is able to rely on the sanitized trial testimony to make this pitch.
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During her many pre-trial interrogations over a period of months, Swearingen’s stories constantly changed, e.g., when refuted by phone records or contradicted by other witnesses, or seemingly on a whim. Yet, the Task Force ignored numerous red flags that this drug-addicted juvenile runaway from a small town outside Salem was fabricating her statements. The State continues to ignore these inconsistencies and, given the sheer number of stories she told, it is beyond the scope of this Reply to catalogue them all. Instead, the Reply will focus on the State’s claims about the immunity agreement and the Hillcrest statements, and on material inconsistencies between Swearingen and Harden’s now-recanted stories.
The State argues that Swearingen “would not admit any knowledge of Francke’s murder” until she received immunity, e.g., CR 101 at 94, 96 & n.58, 97, but this is not true. In September
1989, during her second police interview (before she was given immunity in December),
Swearingen told the Task Force Gable confessed to her in July 1989 when she, Doug Scritchfield and Gable were together in a soccer field, although she later changed her story. Pet. Ex. E at 207,
356-59. The Task Force wanted to interrogate Swearingen further and to conduct a polygraph after she said Gable confessed, but Swearingen absconded. Thus, the Task Force arrested her, lodging her at Hillcrest School so she could be questioned further about the Francke murder.
The State points to selective portions of statements Swearingen made while at Hillcrest to suggest that these statements are reliable because they were not made during police interrogation.
However, in context, it is not clear these statements were about Gable at all, and the snippets she provided while at Hillcrest certainly did not resemble the story she told of the murder months later to the Grand Jury. Some of these statements appear to be parroting what police told her, e.g., upon her arrest, that she was “nervous because she was either an accomplice or accessory to murder”
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or, to her counselor, “this time I’m in [custody at Hillcrest] as an accomplice for murder.” E.g.,
Pet. Ex. N at 9-10. The State omits the parts of Swearingen’s statements, for example, that she said her “boyfriend” was involved, that blood was on her “boyfriend’s hands,” and that “Munchie
(aka Doug Scritchfield) was out on a temporary pass and that Doug got Francke’s blood on his clothing.”23 Id. at 3-10. When Swearingen’s statements at Hillcrest are considered in their entirety, they bear little resemblance to what she or Harden said before the Grand Jury or at trial, and most do not appear to be about Gable (save one statement that Gable was hired to assassinate
Francke, which, of course, was not part of the State’s theory).
That Swearingen and Harden could not provide the same account of the murder is best explained by the fact that both now admit: they were not eyewitnesses. Task Force reports recording their numerous accounts reveal that, as of their Grand Jury testimony, Swearingen and
Harden still remained inconsistent with respect to the following details that should have been known: first, whether Swearingen was in Harden’s car at time of the murder, compare Pet. Ex E at 221 (Swearingen said she stood by tree), with id. at 64 (Harden said Swearingen was in his car); second, what direction Harden’s car was facing when parked at the scene, compare id. at 216, 227
(Swearingen said Harden’s car faced North, so the murder would be viewed out of the passenger side windows), with id. at 62, 64 (Harden said his car faced south, so the murder would be viewed out of the driver side windows); third, what Gable was wearing, compare id. at 403 (Swearingen said Gable wore dark jeans and a dark t-shirt), with id. at 64 (Harden said Gable wore a dark trench coat); fourth, whether Francke said anything as he approached his car, compare id. at 223
(Swearingen heard nothing), with id. at 64 (Harden heard Francke yell out); fifth, what Dome
23 Swearingen’s former boyfriend was Doug “Munchie” Scritchfield.
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Building driveway they exited, compare id. at 216-17 (Swearingen said the driveway onto 23rd
Street), with Resp. Ex. 296 at 145 (Harden said the driveway onto Center Street); sixth, what direction they drove when leaving the scene, compare Pet. Ex. E at 216-17 (Swearingen said they drove North on 23rd), with id. at 64 (Harden said they drove West on Center); seventh, where they went immediately after leaving, compare id. at 221 (Swearingen said they went to the Benders), with id. at 64 (Harden said they went to his house after). See also CR 74 at 55-57.
Despite the State’s claim that Harden and Swearingen were consistent on how the murder happened, Swearingen had repeatedly claimed that Gable had attacked Francke from behind while he approached his car, while Harden testified that Gable lunged out of Francke’s car stabbing at him. Tr. 8070. In Swearingen’s first detailed account of witnessing the murder (provided in
December 1989), she claimed that she and Gable walked to the Dome Building (rather than having driven in Gable’s car as she would tell the Grand Jury), and that Gable approached from “behind”
Francke, putting his “left hand” on Francke’s “left shoulder” (rather than Harden’s account that
Gable came out of Francke’s car stabbing at him). Pet. Ex. E at 433-39. In material ways, therefore, Swearingen’s story at that point did not resemble the State’s story at trial.
Swearingen thereafter recanted her claim that she witnessed the crime. However, as he wrote in his report a month earlier, Ackom had already formed his opinion that Swearingen witnessed the murder: “It is [Ackom’s] opinion based on the results of this examination, that
Swearingen was present and saw Frank Gable stab a man in front of the Dome Building on the state hospital grounds.” Pet. Ex. E at 358-59. Applying Reid tactics in January 1990, after four consecutive days of polygraphs and interviews sometimes lasting all day—e.g., 10:05 a.m. until
8:45 p.m. on January 16, 1990—Swearingen again told Ackom she had witnessed the murder. Pet.
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Ex. E. at 360-74; Pet. Ex. N at 1-2. Thereafter, the details of what happened continued to change over the dozens of subsequent interrogations and polygraphs. When Swearingen did claim to have seen the actual killing, she continued to describe it differently than Harden ultimately would, e.g.,
“Gable grabbed the guy from behind, with his left hand on the man’s shoulder,” Pet. Ex. E at 387.
The State misstates the record to suggest Swearingen consistently placed Gable in
Francke’s car, which would suggest she and Harden were in lockstep on this point, even though they were not. E.g., CR 101 at 163 (Swearingen’s statements at Hillcrest School “were consistent with her grand-jury testimony, which the [trial] jury heard and in which she detailed how petitioner was in Francke’s car and how he struggled with Francke thereafter.”). The State does not—and cannot—provide a citation for its claim that Swearingen “detailed” to the Grand Jury how Gable was in Francke’s car, and that that story was consistent with statements she made at Hillcrest. In closing argument, the State carefully avoided eliciting this major contradiction between Harden’s and Swearingen’s accounts by asking Swearingen: “And isn’t it true that you indicated [to the
Grand Jury] that you saw Frank Gable get into a struggle with [Francke] near that white car that night?” Tr. 9369 (emphasis added). Answer: “Yes.” Defense counsel had failed to elicit that in every police interview in which Swearingen described the actual stabbing, her description of events was different than Harden’s. Swearingen never ultimately corroborated Harden’s statement that Gable came out of Francke’s car stabbing. Indeed, Ackom polygraphed Swearingen as being truthful when she denied ever seeing “Gable in Michael Francke’s car.” Pet. Ex. E at 387-88.
Finally, the State repeats the trial testimony about the day when investigators arranged an in-person meeting between Swearingen and Harden, which made it appear as if nothing significant happened during that meeting or on that day. CR 101 at 94. Swearingen’s claim that she and
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Harden were allowed to meet to get their “stories straight” is supported by police reports that indicate a major change in Swearingen’s account on that day. Until that day, Swearingen and
Harden were unable to provide the same explanation for why Harden was at the Dome Building.
In most of Swearingen’s early accounts, Harden was there because he drove her and Gable there.
Pet. Ex. E at 212-19, 370-84. For the most part, Harden claimed that Swearingen had called him for a ride. Id.; see also id. at 61. When Swearingen ultimately changed her story and said she drove in Gable’s car to the Dome Building, she explained Harden’s presence by claiming she and
Gable saw him at the Bender house just before leaving for OSH, and that she asked him to come get her. Pet. Ex. E at 220-24, 386. Finally, on the day Harden and Swearingen were allowed to meet, Swearingen adopted Harden’s version and, for the first time—six months after her first interview with police—claimed that she had called Harden for a ride. Pet. Ex. E at 228.
6. Despite The State’s Attack, Keerins’s Recantation Is Relevant.
The State argues that the fact that Keerins once implicated Gable and has now recanted is irrelevant. CR 101 at 141. The fact that the State chose, for unknown reasons, not to call Keerins at trial, does not render his recantation irrelevant to the innocence analysis. Keerins was the first to implicate Gable and the first to tie him to the Crouse botched-car-burglary theory. Published news accounts of Keerins’s false story prompted Perkins and Childers—and perhaps others—to implicate Gable. The State declared Keerins “material” to its case, and his Grand Jury testimony contributed to Gable’s indictment. Keerins’s recantation is new evidence, relevant under Schlup, that the State relied upon fabricated testimony to develop its case against Gable. Further, Keerins’s explanation of why he lied to police corroborates other recantations. Pet. Ex. A at 99.
Keerins was a true jailhouse snitch, who took the opportunity to use what he knew about
Gable to implicate him after they were housed in jail together. The State’s argument that he knew
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benign facts about Gable’s life, such as that Gable’s wife had a broken arm, CR 101 at 141, does not make it any more likely that the admittedly fictitious jailhouse confession occurred. The State also suggests that Gable was concerned that Keerins would provide information on him, id. at 141 n.70, and Gable indeed had that concern since he was jailed with Keerins in May 1989. But it was
Gable telling police that he believed Keerins was involved in the Francke murder that fueled
Keerins to turn the tables on Gable. Pet. Ex. E at 14.
7. Despite The State’s Attack, Dr. Raskin’s Affidavit Is Reliable And Based On The State’s Own Investigation Of Its Key Witnesses.
Rather than addressing the substance of Dr. Raskin’s opinion, the State focuses on attacking its basis. The State complains that Dr. Raskin did not “examine the credibility of the recantations.” CR 101 at 143. The State also repeatedly states that Dr. Raskin relied on “suspect and irrelevant information or an inaccurate understanding of the record.” CR 101 at 144, 149, 150.
Dr. Raskin’s review, based on his expertise in the Reid Method and polygraph, was not of the recantations, but of the interrogations that produced the trial testimony, and is intended to aid the Court in its credibility analysis. Contrary to the State’s argument that Dr. Raskin relied on
“irrelevant” or “suspect” information, he relied on the Task Force interrogations and polygraphs of Gable, Janyne, Crouse, and the individuals that eventually became the State’s “material” witnesses. Pet. Ex. B at 2. Dr. Raskin also reviewed an excerpt of Walker’s 1993 recantation and four additional affidavits of Jodie Swearingen, Shelli Thomas, and John and Kelly Bender, generated by defense counsel at the time of trial to substantiate information about the interrogation methods. Id.
To support its argument that Dr. Raskin relied on “suspect” information, the State overstates the extent to which Dr. Raskin relied upon these four affidavits to support his ultimate
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conclusions about the police interrogation tactics. See CR 101 at 143-44. Dr. Raskin does not rely solely on these affidavits for examples of coercive conduct, but, rather, reviewed these materials to supplement what he learned from his review of the interrogation process the key witnesses underwent. The State dedicates several pages of its Response to arguing that these affiants were unreliable witnesses on collateral issues so their reporting of what occurred during police interrogations should not be believed. CR 101 at 144-47. The issues on which the State bases its
“unreliability” argument chiefly had to do with the witnesses’ ability, nearly a year after the fact, to pinpoint the specific dates of occurrences that would have been insignificant in their lives at the time. Their lack of reliability on such issues, if any, does not render the same witnesses unreliable with regard to their memories of being interrogated.24
As further support for its argument that “Raskin misunderstood or significantly misrepresented the record,” the State argues that Dr. Raskin has no basis for his description of
Gable’s physical state before his first polygraph, and, therefore, no basis for his conclusion that
Gable should not have been polygraphed in that state. CR 101 at 147. The description, about which the State complains, is language Dr. Raskin took nearly verbatim from the Task Force’s own polygraph report. Compare Pet. Ex. B at 11, with Pet. Ex. E at 3-7.25
24 Despite describing the Benders as unreliable witnesses, the State concedes that the Benders were consistent in their statements that Gable had never been to their home until after the police “raid.” CR 101 at 146 & n.84. That raid occurred three days after Francke’s murder, so evidence from the Benders that Gable had not been at their home contradicted Harden’s now-recanted testimony that he saw Gable at the Bender house hours before the murder. 25 The State also attacks Dr. Raskin’s statement that Crouse was “eliminated as a suspect for unknown reasons” as also revealing that Dr. Raskin was “unfamiliar with the record.” CR 101 at 149 n.86. Yet, without citation to the record—because nothing in the record addresses this point—the State uses its own legal argument that Crouse’s confessions were uncorroborated to supply a reason. Id. Task Force reports contradict the State’s claim. The
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Finally, the State argues that Dr. Raskin “did not review the polygraph results.” CR 101 at 149. Dr. Raskin did review the “results” as reported by the Task Force, chiefly Ackom, in reports entitled “Polygraph Examination” that describe the tests and related pre- and post-test interrogations. See Pet. Ex. E. Dr. Raskin was unable to review the polygrapher’s charts and notes because the State refused to disclose them at trial. Gable has not sought disclosure of those charts now because Dr. Raskin was able to substantiate numerous problems with the tests and their administration and concomitant errors in their results based on the State’s own reports, even without review of the underlying charts. Dr. Raskin would welcome the opportunity to review the charts themselves.
8. The Reaffirmation Of Problematic Trial Testimony Without Accounting For The Problems Does Not Diminish Gable’s Innocence Evidence.
The State submits new evidence of Gesner and Perkins affirming their trial testimony.26
The Brief in Support explained at length why the process that produced that testimony renders it unreliable, CR 74 at 69-87, and the State’s Response does not undermine that analysis. The new affidavits also do not address the problems that marred the trial testimony of these witnesses.
For example, the State’s investigator reports that Gesner indicated that he initially lied to police because he did not want to be labeled a “rat,” as he testified at trial, Resp. Ex. 389 at 2, but the investigator apparently did not ask Gesner to reconcile the fact that he implicated Gable in drug and gun crimes during his initial interview. The investigator also reports that Gesner—like
Task Force continued to search for connections between Crouse and the murder after focusing on Gable. CR 74 at 125; e.g., Pet. Ex. E a 241 (Janyne denied knowing Crouse). 26 The State’s reliance on an affidavit of its investigator summarizing a telephonic interview of Gesner is difficult to square with the State’s criticism of Gable for submitting what the State believed (incorrectly) was a telephonic interview of Walker without a sworn affidavit, and an FPD investigator’s affidavit summarizing her interview of Martinak.
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Walker, Swearingen, and Harden—all of whom feared being charged along with Gable for a role in the Francke murder, was “concerned that he could be prosecuted for hindering prosecution or destruction of evidence.” Id. The State apparently did not ask Gesner to reconcile why, once he implicated Gable, he did not immediately tell the story that eventually became his trial testimony.
The State’s only response to the Studer and Ross affidavits, which corroborate each other and are credible when viewed in the context of the pretrial interrogations that produced their now- recanted false statements, is to repeat Perkins’s trial testimony, argue that Studer and Ross
“confirmed the scenario” in which the purported confession occurred, and to argue that not all reasonable jurors would reject that testimony. CR 101 at 12-13, 135-36.27 Of course, Perkins’s testimony, at best, relates an uncorroborated, veiled, non-specific confession, and Ross and
Studer’s affidavits, together with the context of the purported confession, suggest it never happened as Perkins perceived.
9. Childers’s New Affidavit Renders Him Less Credible, But Does Not Diminish Gable’s Innocence Evidence.
Childers swore, under oath, in his first affidavit that Gable never confessed to him, and now submits a new affidavit stating that he maintains his trial testimony. Compare Pet. Ex. A at
95, with Resp. Ex. 387. Childers still maintains today: “I don’t recall Mr. Gable explicitly saying:
‘I killed Michael Francke.’” Resp. Ex. 387 at 2. Yet, even though Gable did not confess, Childers now explains that Gable did tell him why he killed Francke. Id. at 2-3. Childers repeats
27 The State concedes that Ross and Studer merely “confirmed a morning in January” where Gable was present at Studer’s. CR 101 at 26 n.19 (emphasis added). The State cannot point to any evidence demonstrating this was the morning after Francke was killed. In fact, collateral investigation actually showed it was not the morning after the murder as Perkins said. Compare Pet. Ex. E at 114, 157, 200 (Ross and Studer based timing on Gause leaving for California on the 18th), with Resp. Ex. 259 at 4; Pet. Ex. C at 198 (Gause left before the 18th). Yet, the State argues for a higher bar for reliability of the Crouse and alibi evidence.
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information from his first interview that Gable cryptically discussed the Francke murder. Compare
Resp. Ex. 387, with Pet. Ex. E at 21, 25-27.28
Regardless of his new affidavit, Childers’s trial testimony is the product of incentives and contamination error and should not be believed. The context in which Childers first provided the story that would become his trial testimony is riddled with red flags.
After Gable’s November 3, 1989 interview, the Task Force believed Childers lied during his interview and marked him for Reid Method interrogation. Specifically, Gable told the Task
Force “that he recalled seeing an associate named Earl Childers that night while driving around with [Chris] Warilla [sic], but did not remember where he saw him.” Resp. Ex 292 at 428. The
Task Force resolved to question Childers until he told the truth about this statement, noting it was interrogating Childers “because he had given information that was not consistent with other witnesses in this case”—the only other witness being Gable himself. Pet. Ex. E at 28.
By November, however, Childers faced new charges and was represented by attorney Paul
Ferder. Id. By this time, Childers also had been contaminated by exposure to media accounts of the case. As Childers explained, he did not think Gable was involved until he read of Gable’s guilt in the newspaper: “I did not start putting things together until the information began coming out in the paper about Gable and Mike Keerins.” Id. at 33. Of course, the media was reporting: that
Keerins claimed Gable confessed that he bungled a burglary of Francke’s car and stabbed him in the course of getting away; that Gable failed two polygraphs; and (incorrectly) that clothing seized
28 Childers initially told the Task Force that, when Gable was released from Marion County Jail in June 1989, he told Childers that he was interviewed as a suspect in the Francke case, and that he believed Keerins had tried to gather information from him about the case. Pet. Ex. E at 21, 25-27. Gable exaggerated his status as a murder suspect at that time because he did not want anyone to suspect he was cooperating with police. Resp. Ex. 292 at 625-26.
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by police linked Gable to the murder. The media also disclosed Gable’s criminal history, spousal abuse, and that Gable had been an informant. Pet. Ex. D at 110-12; Pet. Ex. L; see CR 74 at 45.
Childers admitted to talking to both Mark Gesner and their mutual attorney, Ferder, about the information he provided police. Pet. Ex. E at 33.
It was in this context that Childers told the Task Force what would become his trial testimony. Childers said he had seen Gable driving by on the night of the murder, and related essentially the same confession Keerins had publicized. Pet. Ex. E at 29. As explained in the Brief in Support, Childers was promised future benefits and received actual benefits in his pending cases.
CR 74 at 68-69; Resp. Ex. 254.
Now that the State’s previous “eyewitnesses,” Harden and Swearingen, have both recanted, the State promotes Childers to the role of eyewitness for the first time. CR 101 at 8. Childers was no eyewitness. Even if his testimony is believed, he first claimed to see Gable several blocks away from the crime scene (two blocks west and two blocks north). The State says Childers saw Gable
“driving away from the Dome Building,” but this is merely the State’s theory. CR 101 at 16.
Indeed, as explained in the Brief in Support, there is serious doubt whether Childers could have seen what he claimed he saw given the distances and darkness, and additional doubt as to whether he correctly recalls the day on which he purportedly saw Gable. CR 74 at 67-68.
10. Janyne’s New Affidavit, Which Purports To Recall New Incriminating Information Never Disclosed To The Task Force, Renders Her Less Credible.
The State concedes that Gable never confessed to Janyne that he killed Francke. CR 101 at 111 (“. . . petitioner never explicitly told [Janyne] that he killed Michael Francke”); accord Pet.
Ex. E at 241 (“Frank has never said to me that he killed Francke.”). Yet, after criticizing the FPD
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for submitting an affidavit of Janyne long after trial, the State submits an even newer affidavit of
Janyne that renders her incredible.
Despite the State’s concession that Janyne never told police that Gable confessed, and despite that she did not tell police, or testify at trial, that he confessed, the State—once again relying on the media—points to a 2005 Oregonian article reporting that Gable confessed to his wife. CR 101 at 112, 141, 166. The article states that, more than fifteen years after the murder,
Janyne for the first time described to the Oregonian a tearful confession she says Gable made three or four months after the murder, sobbing and telling her “I stuck the guy . . . . The guy at the hospital.” Resp. Ex. 391 at 10; see also Resp. Ex. 386 at 4, 35 (affirming the article’s contents).
Before trial, the Task Force repeatedly asked Janyne whether Gable confessed, and she wracked her brain to tell them anything that Gable had said during their marriage that sounded like a confession. Surely, Janyne would have related this confession at the time had it actually occurred, but she never mentioned this confession during her numerous police interrogations. This new information should be viewed with the utmost skepticism.29
The State also now points to statements of Gable that were not elicited from Janyne at trial, but that the State says are “consistent” with guilt. CR 101 at 21 & n.15, 111-12. In context, these statements are not probative of guilt. For example, Gable explained the context in which he would have made the statement that he “knew what really happened” regarding the Francke murder.
Gable watched the news and was aware of the various conspiracy theories surrounding the Francke
29 Neuro-science tells us that the memory is not static, but, rather, is malleable. Pet. Ex. B at B at 6 & n.6. When we access our memories, those memories can be changed. For information on implanted memory, see http://www.pbs.org/video/2365663085/ (explaining that memory is less like a library book that you can check out unchanged, and more like a computer file that will have a new “last modified” date on it each time it is accessed).
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murder, so when the murder came up in conversation, someone else would say something that conflicted with what Gable had seen on the news, and he would chime in with his two cents that he “knew what really happened.” Resp. Ex. 294 at 180, 188, 191, 207. For example,
maybe in a conversation with 3 or 4 people, you know, that like I say, they say he got shot with a bazooka and I say, “No, he didn’t. I know what happened,” and I give my story. Anybody’s going to say that. . . .
Id. at 188.
The State chose not to present this evidence at trial even though it could have. It was not excludable as a “confidential” spousal communication because Janyne alleged it was made in conversation with several others. Pet. Ex. E at 238-39. The Task Force conducted collateral interviews of the witnesses she named but did not confirm Janyne’s account of this conversation.30
Another statement to which the State now points, i.e., Gable said Janyne did not know what he was involved in and he was going to South Dakota, was made in April 1989 (months after the murder and before Gable had been questioned by the Task Force) when Janyne packed up their house, told Gable she planned to “separate” (i.e., end their marriage) and move in with her mother.
Pet. Ex. E at 238, 246-47. Gable, highly distraught, responded that he would go stay with his own mother “in South Dakota.” Id. In any event, there is no evidence that Gable ever left Oregon or did anything but cooperate each time he had police contact in 1989—despite the State’s theory that he stabbed a man to avoid being taken back to prison.
The other statements to which the State points, i.e., about a “robbery” and a “cop” being
“shot,” were also made in April 1989 and in context appear irrelevant. No one saw Francke take
30 The State ignores that Warila, one of the five people Janyne named, did not corroborate that this statement was made, and, instead discusses other statements Warila later made. CR 101 at 111 n.64.
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his last breath—at least not according to the State’s theory of the case, eyewitness Hunsaker, and the objective evidence from the crime scene. Moreover, other Task Force reports (for example, of
Warila) reflected that Gable made similar statements in connection with the Coos Bay robbery for which he had done time, although it did not actually involve the shooting of a “cop.” These statements should be given little weight in the holistic analysis in light of the context in which they were made. To be sure, they are far more speculative, remote and attenuated than the Crouse statements that were excluded at trial.
11. Janyne’s New Affidavit Contradicts Her Own Trial Testimony, But Gable’s Alibi Remains Intact.
At trial, Janyne testified that she slept from mid-day until dark, and that she and her daughter were home alone on the night of the murder. Tr. 7728-30. The State did not ask her about Walker’s phone records or the January 18 eviction notice, and defense counsel did not ask her a single question. Tr. 7733. Janyne signed the 2014 FPD affidavit to memorialize how her testimony would have changed had she been shown these two documents at trial. After reviewing the phone records, Janyne swore that she would have no reason to dispute that Walker spoke with
Gable when he called the couple’s home at 5:38 p.m. on January 17. Pet. Ex. A at 3-4. Janyne also swore that, had she been shown the eviction notice, she would have testified that the night of
January 17 was a “memorable night” because of the commotion that led to their citation for excessive noise the next day, and that Gable was home with guests until 8:00 or 9:00 p.m. before going out for the night. Id. at 2-3.
Incredibly, Janyne’s new internally contradictory affidavit reaffirms her trial testimony
(i.e., that she was home alone), but at the same time suggests that numerous other methamphetamine-using guests could have been at her home answering her telephone, talking to
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Walker, and making the noise that led to her eviction. Resp. Ex. 386 at 1-2. Janyne still says the night was “memorable,” but now cannot be sure that Gable was home. Id. at 2. Janyne tries to have it both ways.
Other trial evidence already contradicted Janyne’s testimony that she was home alone, and supported her 2014 FPD affidavit. Her latest affidavit is uncorroborated. Specifically, the 2014
FPD affidavit is corroborated by Walker’s testimony that he called the Gable home and talked with
Gable for five minutes at 5:38 p.m. on January 17. Tr. 8164-65. In fact, since he was first asked,
Walker consistently said he “spoke with Gable”—not some other person—at 5:38 p.m. on January
17 “for five minutes.” Pet Ex. E at 261. Contrary to Janyne’s testimony, telephone records also showed Gable was home at 2:30 p.m. CR 74 at 104 (citing Pet. Ex. A at E); see also Tr. 7222,
8653-56.
The State ignores the inconvenient truth that Janyne’s new affidavit cannot be squared with her own trial testimony, focusing instead on how her latest statement undercuts Gable’s newly presented alibi evidence. Janyne’s 2014 FPD affidavit is most consistent with the other alibi evidence. Whether Janyne recalls or not, however, other evidence places Gable at home conducting a drug transaction with Cornett, Gesner and Walker between 6:30 p.m. and 9:00 p.m.
Pet. Ex. A at 64-65; Pet. Ex. C at 7; Pet. Ex. G at 16, 17, 19-20, 27.31
The State focuses heavily on the timing of Dowd’s outburst, suggesting Gable’s argument contradicts the apartment manager’s testimony that the plate was thrown late at night. CR 101 at
31 During an interview with the FPD, Janyne said that Gesner and Walker were among the guests at her home that night. Pet. Ex. M.
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105-06.32 It is undisputed that Dowd’s frustration-fueled outburst occurred after the drug deal because Dowd was frustrated that Gable delayed paying him because he was conducting the deal.
Gable does not dispute that it could have been after the apartment manager went to bed.33 The particular timing of the outburst itself is immaterial. The point is not that the outburst happened at the time of the murder or even while Gable was home, but that evidence places Gable at home conducting a drug deal until sometime after the murder occurred at 7:00 p.m. CR 74 at 102-08.
The State also turns to the 2005 Oregonian article to refute Gable’s evidence that he was involved in a drug deal on the night of the murder. CR 101 at 110. The article relates information purportedly from Robert Cornett and Mark Gesner that they were not involved in a drug deal that night. Cornett’s sworn affidavit should be credited over a newspaper article, and Gesner has not submitted a sworn affidavit nor addressed this issue in this proceeding.
12. The State Omits The Context For Gable’s Statements About Alibi.
The State argues that Gable’s “alibi claim in this federal habeas proceeding” that he was home on the night of the murder, is different from what Gable told the Task Force. CR 101 at 106
(calling it “the latest in a string of alibis that have continually shifted”); see also id. at 22.34 This is untrue. Gable initially (and repeatedly) told the Task Force that he was home with his wife, and that he thought they had drug-using friends over. CR 74 at 100-01 (citing Pet. Ex. E at 14-15 and
32 Janyne, Gable, the apartment manager, and Dowd agree that the noise from that night, including the plate incident, was the “last straw” that led to the eviction notice the next day. CR 74 at 104, n.55. The State relies on a clearly erroneous finding of the post-conviction court to question whether the “plate incident” happened that night. CR 101 at 87 (citing Resp. Ex. 345 at 83). 33 Dowd places the outburst at 10:00 p.m. or after midnight. Pet. Ex. G at 14-15. 34 The State dedicates several pages to repeating the trial and post-conviction evidence, citing to the Brief in Support, CR 74 at 102-108, as setting out the argument that counsel was ineffective for failing to investigate alibi. Those pages actually discuss alibi evidence submitted to demonstrate Gable’s innocence. See generally CR 74 at 44-132.
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Tr. 7349-51); accord CR 101 at 21. Indeed, Janyne now confirms what Gable told police from the beginning. Resp. Ex. 386 at 2.
The State largely ignores evidence that it was Janyne’s insistence that she was home alone on the night of the murder that led to Gable’s various guesses at where else he might have been.
See CR 74 at 107; Resp. Ex. 253 at 7; compare Pet. Ex. E at 243 (Janyne insists she was home alone), with Resp. Ex. 292 at 567 (Gable thought he was home with Janyne until she insisted otherwise). As explained in the Brief in Support, Gable, would stay up for days using methamphetamine, and was not asked about his whereabouts on January 17 until nine months later.
CR 74 at 100-01. The Task Force repeatedly asked Gable whether he was “certain” or “pretty sure” of where he was, and he repeatedly responded that he was not certain—he was just trying to piece together where he might have been. Resp. Ex. 294 at 177, 219-21.35
Gable asked the Task Force to provide him any information about the week of the murder that was “special” to help jog his memory. Resp. Ex. 294 at 182. But the Task Force never told him the date of the eviction notice (or showed him phone records). The Task Force did ask Gable,
“Why did the landlady evict you and Janyne from the Hawthorne apartment?” Resp. Ex. 294 at
176. Gable’s response suggested an alibi, but the Task Force did not inquire further. Specifically,
Gable replied with his recollection of what led up to the eviction notice. Id. (“The landlady said
35 Resp. Ex. 294 at 177 (“I’m not certain of my movements during all of January. You know, I mean I’m just putting some sketchy places together . . . .”), 219-20 (“No, I’m not sure. I never have said I’m sure. . . . There’s days I couldn’t remember if it was Tuesday or if it was Thursday or if it was Sunday.”), 221 (“I do not know where I was on the night of the 17th at all. I do know this, that I was not on that Hospital grounds from the time I picked Janyne up until the next time I took her to work.”), 230 (Salle: “So you’re pretty sure [you were with Chris Warila ] . . . .” Gable: “I don’t know, I’m, I’m not pretty sure if I was there, I’m not pretty sure if I was home, I’m not pretty sure if I was in Portland, I don’t know.”).
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there was “too much traffic coming in and out” and Scott [Dowd] downstairs “was mad” and
“threw his plate and it shattered.”). This dovetailed with Gable’s first statements that he had been home and that he had methamphetamine-using guests at his home that night, and undercut Janyne’s statement that she was home alone, but the Task Force ignored this information because it did not fit with their theory of Gable’s guilt.
The State agrees “at a minimum, petitioner discussed with his attorney the eviction notice,” citing an interview of Gable by his own attorney that occurred well after the police interviews that produced the statements the State now criticizes as shifting, CR 101 at 107, so the discussion with his attorney is irrelevant to whether, during police questioning, Gable was made aware he had received the eviction notice the day after the murder. Gable was not represented until after his last
Task Force interview. It is undisputed that, by the time of trial, Gable and his attorneys were aware of the eviction notice; Gable had told his defense team that he conducted a drug deal at his home on the night of the murder. E.g., Pet. Ex. G at 11-12.
The State also focuses on attacking the post-conviction alibi argument, particularly Gable’s testimony, suggesting this was yet another of Gable’s many alibis. CR 101 at 107-08. That alibi presentation, through Gable’s testimony, attempted to use police reports to establish his whereabouts. Of course, the police were not investigating alibi—they were trying to prove the opposite. This Reply will not address the State’s arguments about the post-conviction alibi theories that are not raised here.
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13. The State Still Takes Gable’s Innocent Statements Out Of Context To Make Them Appear Inculpatory As It Did At Trial.
The State argues that Gable “gave inconsistent alibis, corroborated certain aspects of the testimony of his associates, and reacted to questioning in ways that were consistent with guilt.”36
CR 101 at 18. The Brief in Support addressed the fact that the trial testimony and the State’s closing argument took Gable’s statements to police out of context, providing some examples. CR
74 at 94-99. In its Response, the State still recites only the sanitized trial testimony regarding
Gable’s statements to the Task Force. CR 101 at 18-30, 164-66. This Reply will not discuss all of Gable’s statements to police. Comparison of the State’s descriptions of what Gable supposedly said to the actual police reports of his interrogations reveals that the statements to which the State points as incriminating are actually made in response to polygraphs, leading questions, or newspaper accounts, which neither the State nor the trial testimony mentions.
For example, the State repeats two statements from officers who transported Gable for his two September 1989 polygraphs. CR 101 at 18-23. In the first statement, Gable appears to be reacting to the fact that the Task Force had come to follow up on their request to polygraph him, and, in the second, to the fact that his failure of the first polygraph rendered him a suspect in the case. Compare CR 74 at 95 & n.52, with CR 101 at 19, 20 (citing Tr. 7269, 7281). There was no mention at trial of the use of polygraphs, and, without this context, these statements appeared incriminating. Neither statement was memorialized in a Task Force report. Defense counsel did not question the officers about their failure to record these supposedly important statements.
36 The State applies a double standard, arguing that Crouse’s explicit confessions should be discounted as unreliable, but that these ambiguous statements of Gable, none of which are explicit confessions, should be relied upon as indications of guilt.
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In describing Gable’s reaction to his purported polygraph failures, the State still fails to acknowledge that he was devastated—just as the Reid Method intends—because of the powerful impact of post-polygraph test “failure” feedback. Pet. Ex. B at 5-6. Instead, as it did at trial, the
State sanitizes the context, referring to the polygraph as merely an “interview,” and editorializes:
“Of course, petitioner’s extreme agitation occurred well before many of the witnesses against him had provided any information to the police.” CR 101 at 22 n. 15. Gable’s reaction was a reasonable response to the Task Force telling him he was the only witness to fail a polygraph during the Francke investigation, and that the State has a strong case against him for murder. Pet.
Ex. B at 6; Resp. Ex. 292.
Still focusing solely on the sterilized trial testimony, the State next suggests that Gable spontaneously became emotional during the second polygraph (referred to again as an
“interview”). CR 101 at 20. However, it was directly after Ackom told Gable that he failed the second polygraph on his involvement in the murder that Gable became emotional, assuming the fetal position, sobbing, and repeating he just knew they were going to “roast him” on this. Pet.
Ex. E at 11. Again, the State fails to acknowledge that the Fourth Degree was having its powerful and intended effect.
Similarly, the State repeats four times in its Response Ackom’s testimony that Gable joked to his wife about killing Francke, discussing it as an established fact (i.e., that Gable actually did so joke). CR 101 at 20, 112, 141 n. 81, 165 (citing Tr. 7293). This statement was not an admission, but rather a hypothetical question posed to Ackom by Gable as Gable tried to understand how he failed the polygraph test when he truthfully denied confessing. Pet. Ex. E at 11 (Gable: “If I did that [i.e., joked to his wife about killing Francke], would [the polygraph test] show I was lying?”).
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Yet, the State again editorializes, stating “[d]uring his initial interviews with police, petitioner was apparently concerned about statements he had made to his wife. CR 101 at 112.37 Gable was clear with police that he never confessed to Janyne even in jest, Resp. Ex. 294 at 180, and Janyne’s statements to the Task Force are in accord. The State glosses over the context now as it did at trial.
By his November 3, 1989, interview, Gable had read a newspaper article quoting Marion
County District Attorney Dale Penn as saying that if Gable failed a polygraph on his knowledge of the killing, he is not alone because “a number of people who were asked to take a polygraph have had ‘inconsistencies and problems’ passing the test.” CR 74 at 40 (citing Pet. Ex. D at 109).
Thus, when the Task Force asked Gable that day if he had given thought to the two polygraph failures, Gable explained his new thinking: “You sa[id] I was the only one that failed the lie detector test. Well[] Dale Penn[] clearly stated that many people have had problems with inconsistencies in passing the lie detector test.” Resp. Ex. 294 at 200, 212, 217. Gable repeatedly said he now felt that his interrogators were being dishonest with him. Id. Gable explained: “. . . the test ain’t no good. . . . That machine is totally just crap. I mean, the only thing that machine is for is to get any person that [sits] down in that chair to talk before and after. . . .” Id. at 213.
37 The State editorializes about what Gable was thinking, suggesting he had a guilty mind even though the record is equally (or more) indicative of innocence. For example, the State suggests that Gable backed away from using Warila as an alibi witness after “perhaps sensing that Warila would not be a strong witness.” CR 101 at 25. The record shows Gable was never certain he was with Warila. CR 74 at 101 (citing Pet. Ex. E at 14-15). Similarly, when Gable was asked who might say bad things about him, Gable named his wife, whom he had abused, and her brother, Studer, with whom he had been in a fist fight. The State editorializes: “[P]etitioner apparently knew that Studer possessed incriminating information well before that information was shared with police,” and argues that Gable was wrong because Studer had not yet implicated him. CR 101 at 26, n.19. The State fails to understand that, once Gable mentioned someone who might incriminate him, the State then applied the Reid Method to that person until it became a self-fulfilling prophecy.
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The State suggests Gable spontaneously named Swearingen as the person who saw him running from the scene during his next interview on December 22, 1989. CR 101 at 27. But the context for that statement reveals contamination error. Resp. Ex. 292 at 642.
First, in Gable’s previous interview, the Task Force had asked Gable if it was possible
Swearingen had seen him on the night of the murder (Gable had responded essentially that he was not sure who she was). Resp. Ex. 294 at 179. After that interview, Ackom formed the “opinion .
. . that Swearingen was present and saw Frank Gable stab a man in front of the Dome Building on the state hospital grounds,” based on a polygraph of Swearingen. Pet. Ex. E at 358-59.
By December 22, Gable refused to take another polygraph, stating “he took one before and it said that he was lying when he wasn’t.” Resp. Ex. 292 at 641. Thus, Ackom told Gable “[t]hat a person was saying they saw him (Gable) stab Michael Francke at the Dome Building,” and that the witness has an attorney so the Task Force had not been able to “interview the witness in-depth.”
Resp. Ex. 292 at 641. Unable to use polygraph, Ackom decided to read Gable a list of names, one of which was the supposed eyewitness, to see how Gable would react. It is apparent from Ackom’s own emphasis on Gable’s body language that he was relying heavily upon the Reid Method lie detection techniques that are now known to be junk science. Tr. 7564-66; e.g., Resp. Ex. 292, at
642-43 (“The only change in verbal and nonverbal gesture was on the name Jodie Swearingen.”).
Ackom provided Gable a list of names and watched for Gable to react, and Gable guessed in reaction to his interrogator and, probably, because he had been primed as a result of the November
3 questions.38 This solidified Ackom’s belief that Swearingen was an eyewitness. When
38 The State focuses on a similar statement elicited months later, on April 8, 1990, during a carefully planned, lengthy pre-arraignment Reid Method interrogation. Resp. Ex. 292 at 734. Ackom consciously made “leading remarks” in this interview because “there was no question
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Swearingen recanted in her next interview, denying that she was an eyewitness, Ackom applied
Reid tactics during four consecutive days of polygraphs and interviews until she again told him she had witnessed the murder. Pet. Ex. E. at 360-74; Pet. Ex. N at 1-2.
C. The State’s Investigation Uncovered Additional Evidence Of Crouse’s Guilt.
As noted above, the State failed to disclose that its investigator contacted retired DOJ
Investigator Martinak after reviewing the Brief in Support. In Martinak’s words, the State wanted him to “comment on the veracity” of the FPD’s submission (Pet. Ex. C at 7-8, 64-68), which he confirmed. Pet. Ex. I. Martinak also provided the State a lengthy statement in response, adding detail (in his words “fleshing out”) that is exculpatory of Gable. Id. Citing “fairness concerns,”
Martinak provided a copy of this response to the FPD. Id. The State chose not to disclose its contact with Martinak or to provide his new statement to the Court. Instead, the State claimed disbelief that Martinak actually made the statements attributed to him by Investigator Kunkel in her affidavit and report, and objected to consideration of her report because it is “unsworn hearsay relayed by an advocate for petitioner.” CR 101 at 64 n.41. The report is attached to her sworn affidavit. Pet. Ex. C at 7-8, 64-68. Martinak’s detailed account of Crouse’s confession stands in stark contrast to the State’s current characterization of Crouse as someone who was trying “to persuade officers he was somehow involved in Francke’s murder.” CR 101 at 61. The State utterly ignores the context Martinak provides in addressing the third-party guilt evidence. An excerpt in
Martinak’s own words follows.
in [his] mind that Gable committed the crime.” Id. at 739. Ackom showed Gable another list of the names of witnesses and told him that a witness was saying he observed Gable driving on D Street, and Gable responded: “Oh Earl told you he saw me.” Id. at 735. Gable explained his response was an educated guess, id., likely based on subtle cues from Ackom.
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In the interview room, it was just Crouse, [fellow DOJ investigator] Kathy McLaughlin, and me.
* * * I asked him if he had ever killed a person with a knife. He said no, but that he thought he could. I told him that killing a man with a knife was something that was very “up close and personal”, not like sniping someone with a rifle, or shooting him from a safe distance with a handgun. We went back and forth with this for a while, and as we talked, Crouse’s head dropped lower and lower, and he was making a conscious effort not to look me in the eye, so I moved closer to him and continued talking about how personal killing a person with a knife was. When he finally looked at me with a sidelong glance, I could see that his eyes were watery, and he was teared up.
At that point, Crouse said, “I don’t want to talk in front of her.” I took that to mean Kathy McLoughlin, and was about to say that was too bad, because we are both police officers and both of us are staying, but Kathy had already risen from her chair and was headed for the door.
* * * Crouse just sat there for a while, leaning forward, head in his hands, and I said nothing. I then told him that he must have something to tell me if he didn’t want to talk in [front of] Kathy, and I wanted to know what it was that he didn’t want her to hear. Crouse began crying, so I just sat there quiet again. Finally he looked up, tears running down his cheeks, and in a sort of sob, he said, “I did it, I killed him.” I said, “You killed Michael Franke?” in a questioning tone. He told me yes, but that at the time he did not know who he had killed, he didn’t know that until it came out in the paper the next day. He told me that he carried a wire which he used to open unlocked cars, he was in the parking lot of the Domed Building, and had opened a car. He said that there was something on the seat, and he was reaching for it with the driver’s side door open when a guy caught him. He immediately backed out of the car with the door at his back, and was thinking about running and the guy who caught him said, “Come on, you are going with me.” and reached out and took him by the shoulder and started to walk him to the rear of the car. Crouse claimed that he didn’t like anyone laying hands on him, and he was going to try to run, but the guy would not let go. He said he wheeled around and hit the guy with his right fist in the left temple area, thinking that the guy would step back and he could run. The guy didn’t seem to be scared of a punch, and came after Crouse according to Crouse. Crouse said he pulled a knife from a sheath, and held it in his left hand, and would slash at the guy every time the guy tried to hit him. Crouse said the guy hit him hard, and knocked Crouse to the ground, and he lost the knife. He and the guy both went for the knife and Crouse got it. Crouse said he was losing the fight, so he made up his mind to just stick the guy with the knife so he could get away. He said that is what he did, “I stuck him right in the chest, and I knew that I hit him hard.” I asked how he knew that. Crouse said the wind went out of the guy
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and he immediately quit fighting. Crouse said, “The guy said ‘Oh God’ or ‘Oh my God’ then turned and ran toward the Domed Building. Crouse said he ran in the opposite direction, across the street. Crouse viewed an aerial photo and pointed out where he had run, indicating across the street, around a building and toward the cemetery. I do not remember all the details of Crouse’s statements, but they are in my written reports.
I talked to Crouse about anyone else he had told, who he trusted, and was looking to introduce another investigator into this interview. . . . By the time that the Captain got there, Crouse had dry eyes and had recovered from his emotions. As soon as the Captain walked in, Crouse assumed a “macho” attitude, and his story changed to he had purposefully confronted Franke.
Eventually OSP Investigator Pecyna became involved. Investigator Pecyna and I took Crouse back out to the Domed Building parking lot, and it was late in the afternoon. Crouse showed us where he recalled the car was parked, but didn’t want to go anywhere near the place the actual fight had taken place. He never refused to go there; he just kept looking away from that area and walked in a different direction. He told me that his escape route that he pointed out on the aerial was in error. He pointed to the building across the street. He said he had told me that he had run around the building on the south side and then turned north toward the cemetery. He said he did not go around the building. He pointed to the driveway in front of the building and said, “I ran right up there to that big generator thing where I stopped and looked back.” I asked him where Franke was. He said, “I don’t know, I wasn’t looking for Franke, I was looking to see if someone was chasing me.” He said he then continued toward the cemetery and eventually got back to his apartment. He told me he washed the blood off the knife, and noticed that he had blood on his shirt, so he took it into the alley behind his apartment and using lighter fluid, he burned the shirt.
At one point when we had gotten close to where Franke’s car had been parked, Crouse just turned and started walking in the opposite direction. I reached out and grabbed his arm or shoulder, and he immediately spun around, and though handcuffed, assumed a fighting posture. It was just a moment and he recovered a cooperative attitude, but he told me that when I grabbed him it was like Franke did, and he didn’t like “people laying hands” on him.
* * * [In the next contact with Crouse,] I told him that I was aware that [his] story had changed when he talked to other people, and rather than start the whole process over and over, that I would like him to write it down. I furnished paper and a pencil, which I purposefully dropped. He picked it up with his right hand, and wrote with his right hand. He started writing, and the written statement was about breaking into Franke’s car and getting caught doing it. Unfortunately, that writing never got finished.
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* * * [Pecyna arrived] He then began asking questions, and the paper Crouse had started writing his statement on, got shoved aside and was never finished. I kept the initial written page, and that is what led to the contact with Dr. John Cochran. . . . Cochran read the written start of the statement, and discussed the interviews of Crouse. He said Crouse fit the profile. He went on to say that he personally knew Michael Franke, and from his knowledge of the man, that the scenario described by Crouse was a plausible one, as Franke was a “prickly pear” sort of a guy, and if he had interrupted a car prowl of his own car may have reacted as Crouse was describing.
* * * Dale Penn, District Attorney or someone in his office asked for a second polygraph. I do not know how or why an FBI polygrapher was asked, but I was directed to drive to Portland to pick up an FBI polygrapher who was flying in from Las Vegas. I did as directed, and briefed the polygrapher about the initial confession, changes in statements that had occurred since the initial confession, and background on Crouse. I delivered the polygrapher to Salem Police Department, and I was met there by Corrections Investigator Kennecott who had transported Crouse. I introduced Crouse to the FBI and Kennecott and I sat and chatted quietly in an adjoining room for about an hour. When the door opened, Crouse came out, and it was obvious that he had been crying. His comment to me was, “Well at least I proved that I didn’t mean to kill him.” Kennecott took custody of Crouse and returned him to the prison. The polygrapher told me that Crouse’s statement about the burglary or car clout of Franke’s car was a true story. I never saw any written results of statements regarding this polygraph.
Dennis Fox was not pleased that someone was questioning his polygraph of Crouse, and went so far as to ask that the FBI polygrapher be charged criminally as he was not certified to administer polygraphs as per Oregon Revised Statutes.
* * * Early on, between the two or three initial interviews, and the second polygraph, Investigator Kennecott told me that he had a “snitch” inmate who related a conversation with Crouse who was being held at the penitentiary. The inmate told Kennecott that Crouse said he had made a mistake telling me about the stabbing of Franke, because he felt that the reason he had not been charged was because the police didn’t have any evidence other than his statements, and they were still talking to him. He told the inmate that he was just going to make up a different story every time they came so they wouldn’t believe anything he said.
I am aware that some of the stories he told were that he had confronted Michael Franke to get his correction records from the Dome Building because he was going to flee the state and never come back. Additionally he said that he didn’t do it, but it was done by someone who was paid, and he knew where they had buried the bloody clothes the paid assailant who actually stabbed Franke.
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The last time I saw . . . Crouse, he was seated in the back seat of an OSP car at an address in Salem where they were preparing to dig to find those clothes. He was eating a bacon cheeseburger and drinking a milkshake. I leaned over and told him, “You really are enjoying jerking these guys around.” He just smiled at me and took another bite.
Pet. Ex. I.
III. RELIEF IS WARRANTED BECAUSE GABLE’S CONSTITUTIONAL RIGHT TO PRESENT A COMPLETE DEFENSE WAS VIOLATED BY THE EXCLUSION OF EVIDENCE OF CROUSE’S GUILT.
The Due Process Clause and the Sixth Amendment protect a criminal defendant’s right to present a complete defense, including the presentation of evidence of third-party guilt where the proffered evidence raises a doubt about his guilt, and sufficiently connects the other person to the crime so as to be trustworthy rather than speculative or remote. The State argues that the evidence that Crouse confessed is not sufficiently reliable, and, in doing so, argues for a higher threshold for reliability than the law demands, while ignoring or discounting the corroborating evidence and overstating the physical evidence to suggest that it is inconsistent with Crouse’s guilt.
Inconsistencies in Crouse’s statements and the fact that the police could not corroborate portions of what he said do not render evidence of Crouse’s guilt inadmissible. The weight to be accorded to the evidence is a matter for the jury. For the following reasons, Crouse’s confession is more than sufficient to satisfy the Chambers trustworthiness requirement, and the error was not harmless because the exclusion of the Crouse evidence rendered Gable’s defense “far less persuasive.”
A. Chambers Establishes A Fundamental Constitutional Principle.
The State cites dicta from the plurality decision in Montana v. Egelhoff, 518 U.S. 37 (1996), to suggest that Chambers v. Mississippi, 410 U.S. 284 (1973), was an exercise in fact-specific error correction, and, therefore, that its application is limited. CR 101 at 55, 82. Chambers establishes a fundamental constitutional principle, not mere error correction. 410 U.S. at 295.
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After Egelhoff, the unanimous Supreme Court reaffirmed that the constitutional right to present a complete defense articulated in Chambers applies to cases like the present case where trustworthy and critical evidence of third-party guilt is excluded. Holmes v. South Carolina, 547
U.S. 319 (2006). Indeed, the Ninth Circuit has repeatedly applied the Chambers rule to grant habeas corpus relief in murder cases involving third-party guilt since Egelhoff. Lunbery v.
Hornbeak, 605 F.3d 754, 762 (9th Cir. 2010) (Holmes “reaffirmed the rule of Chambers and other cases involving improper denials of the right to present a defense when it overturned a South
Carolina conviction in which a defendant was denied the opportunity to present evidence of third party culpability because of the strength of [the State’s] forensic evidence in that case”); see also
Cudjo v. Ayers, 698 F.3d 752 (9th Cir. 2012); Chia v. Cambra, 360 F.3d 997 (9th Cir. 2004). Any application of Chambers necessarily involves a fact-specific inquiry that, like the present case, applies the principles underlying Chambers to the particular case.
In arguing against the application of Chambers, the State argues for a higher threshold for
“trustworthiness” than is required by precedent. Holmes explained that “widely accepted” rules allow introduction of evidence that tends to prove another person “may have committed the crime” except: “where it does not sufficiently connect the other person to the crime, as, for example, where the evidence is speculative or remote, or does not tend to prove or disprove a material fact in issue at the defendant’s trial.” 547 U.S. at 327. The threshold question is not whether some evidence might call into doubt the third-party’s guilt (as the State suggests), but, rather, whether there is some evidence corroborating the third-party’s guilt so that the proffered evidence is not speculative or remote. Id. If the evidence is trustworthy, i.e., not speculative and remote, it is admissible, and it is left to the fact-finder to determine which facts should be accepted as credible. Chambers, 410
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U.S. at 295 (defendant denied “an opportunity” “to test the witness’ recollection, to probe into the details of [the third-party’s] alibi, or to ‘sift’ his conscience so that the jury might judge for itself whether [the third-party’s] testimony was worthy of belief”).
A comparison of the Ninth Circuit’s decisions granting Chambers relief, including
Lunbery, and Cudjo, with the case cited by the State, Christian v. Frank, where relief was denied because the third-party guilt evidence was too speculative, underscores this analysis.39 The State points to language from a footnote in Lunbery to argue that Crouse’s confession is less corroborated than was the confession in that case, which was “completely consistent” with the
“murder evidence.” CR 101 at 67. “Trustworthiness” does not require that the declarant’s account be “completely consistent” with the physical evidence. To the contrary, the third-party guilt evidence in Holmes was completely inconsistent with the forensic evidence tying the defendant to the crime. 547 U.S. at 322. Similarly, the alleged confession in Cudjo was “inconsistent to some extent with the physical evidence, most notably the evidence that the victim was hogtied before she was beaten to death.” Cudjo, 698 F.3d at 758. The Ninth Circuit chalked the inconsistencies in Cudjo up to agitation on the part of the alleged confessor or a misunderstanding by the person to whom the confession was made. Id.
The thrust of the Lunbery footnote cited by the State is to distinguish Christian, upon which the State also relies, and which involved “a ‘dearth of other corroborating evidence linking [the third party] to the crime.’” 605 F.3d at 761 n.3 (quoting Christian v. Frank, 595 F.3d 1076, 1084
(9th Cir. 2010)). Christian is also distinguishable from this case. Christian claimed another man,
39 The State complains that Lunbery and Cudjo were decided “two decades after the murder in this case,” yet relies on the 2010 Christian decision. Like the present case, all three cases involved murders from more than two decades ago (1986, 1992, and 1995).
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Burkhart, who had an alibi and had not been identified by the eyewitnesses, committed the murder with which he was charged. Christian sought to introduce the testimony of two criminals—a former cellmate of Burkhart and one of Burkhart’s drug-using acquaintances—that Burkhart had confessed. Christian, 595 F.3d at 1084-86. To corroborate the confessions, the defense submitted evidence, e.g., that Burkhart was supposed to visit the victim’s neighbor but did not, that did not make it more likely that the purported confessions occurred or that Burkhart committed the murder.
Id. at 1079-80.
Unlike this case which involves de novo review because there was no state court adjudication of the Chambers issue, the Hawaii Supreme Court held that the evidence in Christian did not meet the Chambers standard. The Ninth Circuit, applying AEDPA deference, found that decision was not unreasonable. The Ninth Circuit expressed “doubt not only about the truthfulness of the alleged confessions, but also about whether those confessions were ever made in the first place, in light of the unreliability of the witnesses and the unrecorded form of the confessions.”
Id. at 1085-86. The Ninth Circuit concluded the confessions relayed by marginal characters were
“strongly contradicted” by the physical evidence, not made to law enforcement or in a reliable context, and “were perhaps never made, given the unreliability of the witnesses.” Id. at 1086.40
The Crouse evidence is easily distinguished from the speculative evidence in Christian.
The proffered evidence of Crouse’s guilt was neither speculative, remote, nor did it lack a
40 The Ninth Circuit’s reasons to doubt the dubious witnesses in Christian who sought to relay the third-party confession, id. at 1085-86, are the same reasons to doubt that the purported confessions of Gable relayed by the “material” witnesses in this case ever occurred. This Court should view the trial testimony of the State’s “material” witnesses against Gable with the same skepticism that led the Christian court to find the drug using criminals there untrustworthy.
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sufficient connection to the crime. There is no doubt in this case that Crouse himself confessed to the Francke murder. Crouse confessed to law enforcement and to his mother, brother, and girlfriend. Cf. Chia, 360 F.3d at 1007 (granting habeas relief pursuant to Chambers while noting
“[t]he trial court’s distrust of post-arrest statements [was] also misplaced.”). Some of his confessions were even tape recorded. Objective evidence placed Crouse in the vicinity of the murder and Crouse never had an alibi.41
Crouse’s confession explained otherwise unexplained physical evidence—e.g., Crouse’s statement that he had punched the victim was the best explanation for the blunt force wound near the victim’s eye socket. Crouse’s confession dovetailed with the description of the only unbiased eyewitness, Hunsaker. Specifically, Crouse’s confession included details that matched Hunsaker’s description of where the killer and victim were located (relative to the Dome Building and each other), the sound that the victim made when stabbed, and the paths that he took to leave the scene past a large generator, as well as other evidence that Francke’s car was cluttered and that Francke’s car door was left open. The sound Hunsaker heard and his description of the generator were not public before Crouse confessed.42 These facts demonstrate trustworthiness under Chambers and its progeny. Other collateral investigation corroborated Crouse’s confession. CR 74 at 117-24.
41 The State argues that Crouse’s confessions are “significantly less reliable” than McDonald’s confession in Chambers. CR 101 at 60. The State says it was never disputed that McDonald was in the vicinity, but it was never disputed that Crouse was either—his parole records placed him at the scene. The State says McDonald’s confessions were corroborated, but his recantation was suspect. The same is true here. McDonald’s alibi was undercut by a witness. Crouse never came up with an alibi. 42 Despite these key non-public facts, the State suggests Crouse relied on media coverage for the details of his confession. CR 101 at 40 n.30, 61, 63. Chambers recognizes, that declarations against self-interest are reliable because usually people do not admit to doing something against their penal interest. Unlike the “material” witnesses, who may have used facts from the media to more credibly implicate someone other than themselves (Gable),
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B. The State’s Analysis Of The Evidence Corroborating Crouse’s Confession Is Flawed.
The State’s argument against reliability glosses over the reality. The State argues that the
Crouse evidence is not trustworthy because he gave several different accounts to investigators, and because the police could not corroborate every detail of his statements. Yet, the State ignores or discounts many of the corroborative facts and misrepresents the physical evidence in order to argue it is at odds with Crouse’s statements. CR 101 at 38-50, 65, 62-66. The State also focuses on statements by Crouse that pre-dated his confession without acknowledging that Crouse admitted those statements were lies, and that the FBI polygraphed as true his statement disavowing the earlier statements and confessing. E.g., id. at 39-42, 46-47 (discussing interviews but omitting the
April 19, 1989 FBI polygraph). Likewise, the State focuses on statements that post-dated Crouse’s confession that could not be conclusively proven to be true by collateral police investigation, but ignores information from Martinak that Crouse had, by that time, decided to deflect responsibility and mislead police. Of course, it is also not surprising that a murder suspect does not immediately confess to police, or that, once he does confess, he mitigates his role, deflects responsibility, or ultimately recants.43
Crouse had no incentive to study up on the murder other than to more convincingly implicate himself. This highlights the State’s use of a double-standard: the State’s argument that Crouse’s knowledge of certain facts is attributable to media exposure or contamination error, is inconsistent with the State’s defense of the “material” witnesses in which the State rejects the claim that media accounts informed their testimony and the possibility that the officers’ interrogation tactics caused them to make false statements. 43 Crouse made several partial or false confessions before he fully confessed. The State claims uncorroborated facts, including that Crouse killed his sister, and that he stood around the Dome Building smoking cigarettes, contained in these admittedly false statements cast doubt on Crouse’s later confession. CR 101 at 52. Similarly, the State points to Crouse’s post- recantation claim that he knew where the killer had buried his clothes, while ignoring that Crouse was seeking to cast suspicion on someone else at that time. Pet. Ex. I. These facts need not be true for Crouse’s confession to be true.
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1. Petitioner Focuses On The Crouse Confession Believed By The Task Force And The FBI.
The State dedicates much of its Response to the details of Crouse’s various statements to police and argues: “petitioner focuses on Crouse’s claim that he killed Francke during the course of burglarizing his car, ignoring the accounts that Crouse provided both before and after . . . .” CR
101 at 62. While the Brief in Support discussed Crouse’s various accounts, CR 74 at 118, 124-25,
150, it focused on the car-burglary confession for good reason. This was the confession believed by the State’s investigating officers, Resp. Ex. 179 at 79, 94-95, 296, and made to Crouse’s own brother, then to his mother, and, finally, to his girlfriend, knowing she would leave him. Id. at 2-
6, 79-90. Task Force member Pecyna noted in his report that, in contrast to Crouse’s earlier statements, Crouse’s confession that he killed Francke during a botched car burglary was
“spontaneous and smoothly spoken. He had no hesitation in answering questions, as he did in earlier statements, which appear to be untruthful, either in part of in whole.” Resp. Ex. 179 at 79,
94-95.
The Task Force flew in an FBI polygraph examiner to test Crouse on the car-burglary confession. Crouse disavowed his previous stories on which the State focuses, admitting to the
FBI that they were lies, and the FBI concluded, after two polygraph tests, that Crouse’s car- burglary confession was truthful. Resp. Ex. 179 at 10-12.
In fact, despite purporting to provide a complete chronology of Crouse’s statements, the
State omits from its chronology the emotional interview where Crouse broke down and asked the female investigator, McLaughlin, to leave the room before he confessed, and the FBI polygraph, making no mention of the fact that the FBI confirmed the truth of Crouse’s confession. Resp. Ex.
179 at 10-12, 292-301. Moreover, the State ignores Martinak’s collateral investigation and the
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context he provides for Crouse statements. Pet Ex. C at 7-8, 64-68, Pet. Ex. I; Resp. Ex. 179 at
52, 155.
2. The State’s Claims Regarding The Physical Evidence Fail To Account For Corroboration Of The Crouse Confession.
Despite conceding that Crouse’s statements were consistent with the crime scene in that he said he punched Francke and stabbed him in the chest and arm, and regarding one of the routes he claimed to flee, CR 101 at 52, the State still argues that “much of the physical evidence flatly contradicted [Crouse’s] his statements.” CR 101 at 71. This only seems to be true because the
State misstates some aspects of the physical evidence, and because it compares Crouse’s confession not to the actual physical evidence, but to its theories, which it treats as established fact.
In doing so, the State ignores the Supreme Court’s directive in Holmes that the State’s view of the evidence is not controlling, Holmes, 547 U.S. at 330-31, and conflates the separate questions of admissibility and the weight to be given to the evidence.
In fact, the crime scene and physical evidence did not establish much. The victim’s outer coat had been slashed. He was stabbed through the arm just above his elbow, presumably as he blocked a blow to his torso because the same blow nicked his chest. Another blow entered his chest. The stabs were of similar trajectory and in a downward motion. But the crime scene evidence was otherwise silent.44 Crouse’s confession was consistent with this evidence. CR 74 at
121-22.
44 The physical evidence did not establish where the stabbing took place. It could have taken place in Francke’s car, nearby, on the porch, or someplace else entirely. The physical evidence did not conclusively establish the class characteristics of the murder weapon, as this was the subject of competing expert opinions, nor did it establish the hand in which the killer held the weapon.
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The State also misstates the physical evidence relating to the wound to Francke’s left eye, which was not made public by the State, nor reported by the media, and which is best explained by Crouse’s confession. In its Response, the State conflates two different injuries in an attempt to counter Gable’s argument:
Petitioner points to Crouse’s claim that he hit Francke with a “roundhouse right,” contending that the claim was supported by the autopsy findings. (CR 74, p. 158). However, the medical examiner explained that although Francke had some scrapes around his left eye and on his forehead, there was no significant blunt force trauma associated with those injuries.
CR 101 at 63 (emphasis added). The record shows the opposite. The medical examiner described one wound “on the . . . orbital area around the eye” as both a “laceration and an abrasion,” and opined that it was a “blunt force injury” that could have been “caused by blunt force pressure like a blow either to the eye itself with an uneven object so that it went into the area or a blow to the glasses which drove the glasses into the eye.” Tr. 6448-49. The examiner explained “one of them has a component other than the other two, blunt force injury as I talked to you about. The other two are simply scrapes” and repeating his confirmation that it is “consistent with blunt force entry.”
Id. Thus, the State’s own expert established that the wound to Francke’s eye was, contrary to the
State’s current claim, caused by blunt force trauma consistent with Crouse’s confession of punching the victim in the head.
The State cites statements of the state prosecutor during the Crouse proffer as though they establish uncontroverted facts, such as the claim that Francke did not have knife wounds on his hands. CR 101 at 62. However, the medical examiner did not so testify—instead, he admitted that he had not analyzed the many wounds on Francke’s hands separately because he assumed that all hand and wrist injuries were the result of Francke punching through the glass window in the
Dome Building door. Tr. 6450-53. While the wounds could have been the result of Francke
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punching through glass, the medical examiner’s testimony was clear that he had not specifically determined that for a fact. Tr. 6453.
Relying on Martinak’s testimony from the Crouse proffer, the State argues that the knife
Crouse claimed to have used did not share the “general class characteristics” of the murder weapon.
CR 101 at 62 (citing Tr. 9554-55). It is not clear what characteristics Martinak was relying upon, but the experts had competing opinions about the general class characteristics of the murder weapon, and the Task Force’s own working theory of the class characteristics of the murder weapon even changed during the course of the investigation. CR 74 at 112-15. The police reports did not record the dimensions of the knife Crouse claimed to have used. Thus, the record does not support the State’s argument.
Likewise, despite that the physical evidence in the case was silent about in which hand the killer held the knife, the State argues that the physical evidence contradicted Crouse’s statement that he had stabbed Francke with his left hand. The State again relies on the prosecutor’s exchange with Martinak during the Crouse proffer about whether the pathologist concluded the wounds were
“not consistent necessarily” with a left hand stabbing. CR 101 at 62 (citing to Tr. 9558). This statement means nothing more than that it could have been a right or left hand stabbing, and
Lewman (the pathologist) never opined one way or the other before the jury. Moreover, Martinak supplemented this testimony when he testified again during the post-conviction proceedings, explaining, had he been asked, he would have testified that Crouse only claimed to have held the knife in his left hand for part of the struggle with Francke before switching it to his right hand.
PCR Tr. 591-93. The physical evidence did not establish that Francke’s wounds resulted from a
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right-handed stab, and, even if the physical evidence had established this, it did not necessarily contradict Crouse’s confession.
The State quibbles about other points—the direction of the stab and whether the stab was to the forearm or the stomach—but, of course, Crouse was describing a heated struggle in which the orientation of Crouse and Francke to each other could make significant differences in direction and locations at which the knife entered Francke’s body. Not a great deal of weight should be given to these discrepancies.
3. The State Ignores Corroborating Evidence And Focuses On What The State Could Not Substantiate.
The State largely fails to address various corroborating facts identified by Gable.
Especially relevant was Crouse’s description of the murder, which was corroborated by eyewitness
Hunsaker. The State focuses on differences and ignores parallels, such as Crouse and Hunsaker’s identical accounts of the location and orientation of the victim and the killer, the sound Francke made when stabbed, and the routes each used to leave the parking lot.
The State argues Crouse’s claim that he broke into Francke’s car using a wire could not be corroborated, focusing on the fact Crouse’s “method of gaining access to Francke’s car could not be duplicated” by police. CR 101 at 46, 52. But the State fails to discuss that Crouse’s landlady confirmed that she found a wire like Crouse described in his room, corroborating his statement.
CR 74 at 121 (citing Pet. Ex. H at 70-71). Moreover, Crouse was a prolific car burglar so the fact that the police could not duplicate his method for breaking into cars is probative of nothing. Id. at
119-20.
The State downplays the fact that Crouse, through his confession, places himself at the scene even though it is corroborated by records showing he signed in at his parole officer’s at 4:40
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p.m. and his parole officer’s statement of when Crouse left. Pet. Ex. H at 81. The State focuses on the time Crouse signed in (as opposed to the time he left) to suggest the evidence is not “highly corroborative” because it only places Crouse near the Dome Building 2.5 hours before the murder.
CR 101 at 65. The standard is not whether evidence is “highly corroborative” of the confession.
In any event, Crouse’s parole officer said Crouse left approximately an hour after arriving, Pet.
Ex. H at 83, and Crouse’s statements of the route he took would be consistent with being in the vicinity of the Dome Building when the State believes the murder occurred. The fact that a written record places Crouse in the vicinity of the crime, and that he has no alibi, is significant (and certainly no such comparable record placed Gable at the scene).
The State argues that Crouse’s criminal history is not corroborative, but records confirm that he had a history of breaking into cars (a history Gable did not have), and of confessing to the crimes he committed. In a similar vein, the State claims that, although medical records confirm that Crouse went to the hospital two days after the murder, this information should be afforded little weight because Gable “does not cite to evidence showing Crouse linked his stomach pains to learning of Francke’s identity.” CR 101 at 65. Martinak makes the link, CR 74 at 117 (citing Pet.
Ex. C at 66; Pet. Ex. H at 13-18), and there is no dispute that Crouse’s statement that he went to the hospital was confirmed. That Crouse later explained the illness differently when he was denying culpability, Resp. Ex. 179 at 250, goes to the weight, not the admissibility, of the evidence.
C. Petitioner Was Prejudiced By The Chambers Error.
The Crouse evidence in this case was “critical” within the meaning of Chambers, and its admission would have had an impact on the jury.45 The State does not argue that the Crouse
45 For the prejudice standard, the State cites Brecht v. Abrahamson, 507 U.S. 619, 623 (1993), without addressing that the argument that the exclusion of “critical” third-party guilt evidence
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evidence was not “critical,” but instead argues that Gable was not prejudiced by any exclusion of
Crouse evidence because the jury was exposed to a snippet of information about Crouse. CR 101 at 70-71. For a summary of this testimony, see CR 74 at 137 (citing Tr. 7477-78). A comparison to the Chambers case illustrates why this brief mention that Crouse confessed and that the confession could not be corroborated does not render the error harmless. A great deal of information about the third-party confession was admitted in Chambers, and the Supreme Court still found that it was not enough to satisfy due process because: “Chambers’ defense was far less persuasive than it might have been had he been given an opportunity to subject McDonald’s statements to cross-examination or had the other confessions been admitted.” 410 U.S. at 291-92,
294.
Especially because Gable never confessed to police, evidence that Crouse implicated himself close in time to the murder would have made a difference. Had the jury been exposed to the fact that the theory that the State later superimposed onto Gable was actually identical to
Crouse’s confession, it would have made a difference. Moreover, Crouse’s confession was consistent with Hunsaker’s eyewitness testimony, while Harden’s account was not.46 Evidence of
under Chambers ends the analysis. E.g., Chia, 360 F.3d at 1006-08 (court did not engage in further prejudice analysis after finding Chambers error). Petitioner is unaware of any case, where a court found Chambers error but denied relief because of lack of prejudice, but the error here meets both the Chambers and the Brecht standards in any event. 46 In comparing this case to Chambers, the State argues: “[m]ost significantly, eyewitness testimony corroborated McDonald’s confession.” CR 101 at 61. The State fails to acknowledge that Hunsaker’s eyewitness testimony corroborated Crouse’s confession, arguing instead that the only eyewitness testimony (Harden) identified Gable. Id. at 62. The now-recanted false eyewitness testimony of Harden was contradicted by Hunsaker’s unbiased observations.
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Crouse’s guilt would have provided the jury with further reason to doubt Harden’s account, which was the key testimony in the case, and, ultimately, to doubt Gable’s guilt.47
D. The Court Should Consider All Of The Crouse Evidence.
The State argues that “Petitioner cites documents located in Petitioner’s Exhibit H that were not presented to the trial court, contending those documents corroborate Crouse’s claims to police. CR 74 at 136-37.” CR 101 at 63-64. The State argues that 28 U.S.C. § 2254(e)(2) applies to any documents not submitted in state court. The State does not and cannot argue that § 2254(d) and Pinholster’s bar on factual development apply.
Gable diligently presented the central Crouse evidence in state court, including each of the reports of Crouse’s interviews and related audio recordings, and Martinak’s testimony. Tr. 9519-
9558; PCR Tr. 590-99; Resp. Ex. 179. The materials not included in the state-court record are
Crouse’s hospital and parole records, some reports of collateral investigation (namely Martinak’s interview of Crouse’s mother and reports confirming the unsolved crimes to which Crouse confessed), and the expanded statements of Martinak provided to Investigator Kunkel and to the
State. Pet. Ex. C at 7-8, 64-68; Pet. Ex. H at 5-43, 67-71, 82-121; Pet. Ex J. It is undisputed that these items should be considered in the Schlup analysis, but this additional evidence also meets the § 2254(e)(2) standard, if it applies, and should be considered in connection with the Chambers claim. Gable acted diligently, but was hamstrung by ineffective attorneys. The evidence is reliable and supplements information already in the record, and should be considered by the Court.
47 Counsel’s failures leading to the exclusion of this critical evidence also prejudice Gable because there is a reasonable probability it would have had an effect on the outcome, satisfying Strickland’s prejudice prong.
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IV. RELIEF IS WARRANTED BECAUSE PETITIONER RECEIVED INEFFECTIVE ASSISTANCE WHEN HIS ATTORNEY FAILED TO MEANINGFULLY CONFRONT THE STATE’S CASE.
The State addresses each of the examples of defense counsel’s ineffectiveness separately,
CR 101 at 85-100, but counsel’s shortcomings are best viewed as part of a broader failure to develop a coherent narrative to counter the State’s evidence. Gable’s overarching Sixth
Amendment complaint is that counsel failed to use available information to effectively cross examine the State’s witnesses and present defense witnesses to: explain why the State’s “material” witnesses should not be believed; put Gable’s own statements into context; and present evidence that someone other than Gable committed the crime.
Trial counsel did not just botch one witness or one argument or one issue. He demonstrated a lack of the diligence and care required for a vigorous defense. See, e.g., Boyde v. Brown, 404
F.3d 1159, 1176 (9th Cir. 2005) (Strickland prejudice may result from the cumulative impact of an attorney’s multiple deficiencies (quoting cases)). “When an attorney has made a series of errors that prevents the proper presentation of a defense, it is appropriate to consider the cumulative impact of the errors in assessing prejudice.” Turner v. Duncan, 158 F.3d 449, 457 (9th Cir. 1998)
(citing Harris ex rel. Ramseyer v. Wood, 64 F.3d 1432, 1438-39 (9th Cir. 1995) (“By finding cumulative prejudice, we obviate the need to analyze the individual prejudicial effect of each deficiency.”)); see also CR 74 at 172. Where multiple errors of counsel “cripple[]” the defense, habeas relief is warranted under Strickland. Washington v. Smith, 219 F.3d 620, 633, 635 (7th Cir.
2000) (“[Counsel] did not just botch up one witness or one argument or one issue—he repeatedly demonstrated a lack of diligence required for a vigorous defense.”).
The State does not address the exculpatory themes that the Brief in Support argues any reasonable attorney would have incorporated into his “reasonable doubt” defense of Gable. CR
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74 at 156-70. The discussion in Section II above largely illustrates how these themes were important to establishing Gable’s innocence. For example, counsel should have addressed Gable’s own statements by putting them into context, through cross-examination of the law enforcement witnesses and Janyne, to counter the State’s arguments that Gable had no alibi and that Gable’s statements should be viewed as confessions.48 Likewise, counsel should have relied on Chambers, established Supreme Court precedent and due process, rather than merely the state rules of evidence, to admit evidence of Crouse’s guilt to establish reasonable doubt. Missed opportunities throughout trial deprived the jury of a coherent explanation for why the State’s evidence against
Gable was unreliable, and left the jury with the misimpression that the State’s case for guilt was strong. Given the duration of the trial and the number of witnesses, including the defense’s decision to recall many witnesses rather than cross-examine them, the case demanded a well- organized summation that counsel did not provide.
These mistakes and missed opportunities, as well as mistakes counsel made with regard to
Swearingen, Studer, and cross-examination of the “material” witnesses generally, which led to counsel having no coherent explanation for innocence at closing argument, are all part and parcel of counsel’s broader failure. The cumulative effect of counsel’s errors, together with the trial court’s exclusion of the third-party guilt and interrogation-tactic evidence, and the improper argument by the State during closing, cumulatively frustrated Gable’s right to present a defense.
48 Contrary to the State’s argument that counsel employed a strategy in not questioning Janyne, there was nothing to be lost, and something to be gained by questioning her. For example, either Janyne’s memory would be jogged that Gable and she hosted a number of methamphetamine users on the night of the murder, or she would maintain her trial testimony that she was home alone, which was contradicted by the testimony of the apartment manager.
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Although these errors individually meet the Strickland prejudice test, this Court should consider their combined effect. Parle v. Runnels, 505 F.3d 922, 927 (9th Cir. 2007) (the
“cumulative effect of multiple errors” can warrant reversal “even where no single error rises to the level of a constitutional violation or independently warrants reversal” (quoting Chambers, 410
U.S. at 290 n.3 & 302-03)); accord Wood v. Ryan, 693 F.3d 1104, 1121 (9th Cir. 2012) (same).
Yet, the State parses Gable’s claims narrowly, arguing that the cumulative error claim is defaulted, and fails to address either counsel’s broader failure or the cases holding that courts may find cumulative harm from unrelated error warrants relief. Whether evaluated under the line of
Strickland prejudice cases that say that, even where no single error examined in isolation is sufficiently prejudicial to warrant reversal, the cumulative effect of multiple errors may still prejudice a defendant, or under due process, the analysis here is the same.
In its Response, the State does not address the argument that defense counsel should have cross-examined the State’s “material” witnesses with their prior statements to police. The State continues to argue that the material witnesses lied in their initial statements to avoid being labeled snitches, but cross-examination could have shown that they did in fact “snitch” on Gable during these interviews, implicating him in numerous crimes other than the murder. See CR 74 at 164
(citing examples at Pet. Ex. E at 19-27, 40-52, 152-55, 254-58, 264-67). Moreover, cross- examination could have shown that, once these witnesses changed their stories and implicated
Gable in the murder, immaterial details about their accounts continued to change in a way that would not have occurred had the witnesses been relating truthful memories rather than concocted stories. Id. It was essential that the defense discredit the State’s key witnesses and counter the
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State’s explanations for why their trial testimony should be believed over their initial statements denying knowledge.
Had counsel vigorously cross-examined the “material” witnesses that testified for the State to establish a connection between the pattern of police interrogation and their continuously morphing stories, Swearingen and Studer could have augmented this testimony by explaining how the process caused them to fabricate their Grand Jury testimony. Once counsel decided to call
Swearingen, it made sense to also call Studer, because the pair could establish that: each initially told the police the truth, i.e., that they knew nothing of Gable’s involvement in the murder; the
Task Force believed they knew more and continued to interrogate them; and both witnesses realized the interrogations would not end until he or she told the police information inculpating
Gable. Pet. Ex. A at 21-31. Each witness would have testified to the several reasons why he or she eventually inculpated Gable, including to avoid being charged in the murder or with other serious crimes or for sentencing benefits, because Gable was known to be a snitch, and to put an end to the interrogations. The tandem testimony, including why each lied and recanted, would have provided powerful innocence evidence.
In addition to bolstering Swearingen’s testimony, Studer’s testimony could have called into doubt Perkins’s testimony. Perkins told police prior to trial that Gable confessed to her and then asked Studer “Have you heard of the Francke case?” Pet. Ex. E at 99-100. Perkins’s trial testimony was different—she made no mention of Gable confessing to Studer or of Gable making the improbable reference to the murder as a “case” on the day it occurred. Tr. at 7945-68. The
State argues that, had the defense called Studer, it would have had to contend with his criminal record and the fact that he had, at one point, corroborated Linda Perkins’s testimony. CR 101 at
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90-91. “[T]he mere fact that some negative evidence would have come in with the positive does not eliminate the prejudicial effect of leaving corroborative evidence unintroduced.” Washington,
219 F.3d at 634. Moreover, each of the State’s “material” witnesses—Studer included—had a criminal record and used drugs. Studer’s testimony would have denied any confession occurred, provided context for why Perkins was mistaken, and shown that her trial testimony had been sanitized to avoid the mention of the unlikely “Francke case” quote.
The State appears to argue that defense counsel’s failure to call Studer was not ineffective because there were strategic reasons not to call him, but fails to address a significant oversight by defense counsel—counsel was unaware that Studer had recanted the testimony that inculpated
Gable. CR 101 at 92. Counsel cannot rely on a claim of strategy where, as here, he had not reviewed the discovery and learned that Studer had recanted his Grand Jury testimony before trial.
United States v. Myers, 892 F.2d 642, 648-49 (7th Cir. 1990) (counsel ineffective for failing to review police report that contained exculpatory information, and could have been used effectively in cross-examining witness); Washington, 219 F.3d at 630-32 (granting habeas relief under the
AEDPA where counsel’s failures to read relevant police reports and to secure favorable witnesses for trial were “flagrant examples of ineffective assistance”); see also Pavel v. Hollins, 261 F.3d
210, 218 (2d Cir. 2001) (strategic decisions are “conscious, reasonably informed” decisions “made by an attorney with an eye to benefitting his client”). No deference is due to decisions that are based on lack of diligence or legal misunderstanding rather than strategic calculation. Williams v.
Taylor, 529 U.S. 362, 395 (2000); Correll v. Ryan, 465 F.3d 1006, 1015-16 (9th Cir. 2006) (“An uninformed strategy is not a reasoned strategy. It is, in fact, no strategy at all.”).
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Most importantly, this evidence would have provided a basis for counsel to argue in closing that the jury should disbelieve the testimony of the other “material” witnesses, particularly Walsh,
Walker, and Gesner, whose stories changed incrementally in response to repeated interrogations, following a similar pattern. Without this groundwork, defense counsel was left with little to argue about these material witnesses in closing.
The State repeats Swearingen’s favorable testimony, and argues that there was nothing ineffective about the way the defense used Swearingen as a witness.49 The State’s argument that defense counsel did not want to call Swearingen as a witness is misplaced. It is within counsel’s purview—not the client’s—to decide which witnesses to call. Alexander v. McCotter, 775 F.2d
595, 602 (5th Cir. 1985) (“the presentation of witness testimony is essentially strategy and thus within the trial counsel’s domain”); see also Brookhart v. Janis, 384 U.S. 1, 8 (1966) (Harlan, J. concurring) (“The decision . . . whether or not to cross-examine a specific witness is, I think, very clearly one for counsel alone.”). Thus, counsel cannot argue that his ineffectiveness was because he was trying to please his client. When counsel decides to call a witness, it is incumbent upon counsel to conduct the necessary investigation and to effectively use that witness.
Moreover, defense counsel should have known that, if he called Swearingen, the statements she made to the Grand Jury would come in as substantive evidence. Thus, counsel should have familiarized himself with this testimony before deciding whether to call her. The State concedes that Grand Jury testimony is discoverable under Oregon law “when ‘the testimony of a witness at a criminal trial may be inconsistent with his testimony before the grand jury.’” CR 101 at 98 n.60
(citing State ex rel Johnson v. Roth, 276 Or. 883, 886-87, 557 P.2d 230 (1976)). Swearingen’s
49 CR 101 at 6-8, 90, 93-94.
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testimony at trial was inconsistent with her Grand Jury testimony (as would have been Studer’s).
Thus, the defense could have shown a “particularized need” for the Grand Jury materials to determine whether to use Swearingen as a witness and to prepare for her examination.50 The State argues now that the Grand Jury testimony would not have been helpful, but Swearingen and
Harden’s stories remained inconsistent before they testified in the Grand Jury so discovery would have been helpful to confirm what was said under oath and whether final changes to their stories were made or whether they remained inconsistent.
The State now claims “it is hard to see what more [defense] trial counsel could have done to ‘more effectively’ utilize” Swearingen as a witness. CR 101 at 97. But the State’s case hinged on whether or not the jury believed Harden’s claim to have witnessed the murder with Swearingen, and Swearingen, who claimed that neither she nor Harden witnessed the murder, was the central impeachment witness for this story. Had counsel meticulously taken Swearingen through her pretrial statements to police to establish a chronology, and done the same with Harden, counsel could have juxtaposed the two chronologies in closing to show how the stories inched closer together through additional interrogations, but never actually lined up.
Among other things, effective counsel would have: provided context for the statements
Swearingen made while at Hillcrest to counter the State’s version of those statements; elicited testimony that Swearingen gave several conflicting statements before receiving immunity to counter the State’s argument that Swearingen would not “admit to knowledge of Francke’s
50 The State now argues it is not known whether Grand Jury records existed. CR 101 at 98. During extensive pre-trial litigation over their disclosure, the State never previously argued that the records do not exist. A record is kept in the normal course. The Marion County District Attorney’s Office has confirmed that records exist.
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murder” until she received immunity; exposed contradictions between Swearingen and Harden’s pre-trial accounts; and established the pay-phone narrative to counter the State’s theory of timing.
In closing, counsel would have been able to better undercut Harden’s story. Instead, the State capitalized on defense counsel’s failure to elicit these contradictions by arguing, as it still does, that Harden and Swearingen told consistent accounts of being eyewitnesses to the murder.
Additionally, together with Walker’s testimony that he spoke with Gable by phone at 5:38 p.m., counsel would have been able to establish a timeline that cast doubt on the State’s case for guilt even absent other alibi evidence.
The State claims there were “no factual inaccuracies” in the State’s closing argument, CR
101 at 99, but the State’s trial story conflicted with Task Force investigation that defense counsel failed to bring to light. In fact, the State’s overarching narrative that there was consistency between witnesses was factually inaccurate and could have been countered had defense counsel effectively used available witnesses and documents.
There were several inaccuracies in statements about Swearingen alone. For example, the
State claimed that Swearingen, consistent with other witnesses, “put Frank Gable in [Michael
Francke’s] car,” Tr. 9841, which was not accurate. The State argued that Swearingen provided no incriminating information about Gable in her September 1989 interviews with police, and would not “give any information” about the murder without receiving immunity, Tr. 9872-73, but at the time she received immunity, she had initially claimed Gable confessed, changed her story, and claimed to have seen Gable commit the murder. Another example exists with Gable’s statements.
The State focused on the fact that Gable stated he knew the Dome Building area well, CR 101 at
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28, but Gable had demonstrated in police interviews that he was not familiar with the area.51
Absent counsel’s failure, the State could not have told the sanitized story it did.
Finally, the defense closing argument reveals how counsel’s failures throughout trial left the defense with no coherent narrative for acquittal. Defense counsel’s failures with regard to
Crouse left him without an alternative culprit in this case that cried out for someone to be held accountable. Defense counsel’s argument that evidence was “lost” as a result of shoddy crime scene investigation undermined the powerful argument that no physical evidence pointed to Gable.
Tr. 9943-44.52 Defense counsel’s attack on whether the murder happened at 7:00 p.m. undermined
Hunsaker’s helpful testimony. Defense counsel’s failures to cross-examine the “material” witnesses on the inconsistencies in their pre-trial statements, failure to use Studer, and botched use of Swearingen as a witness, left him unable to provide a narrative for why the testimony of the
“material” witnesses was false or unreliable in closing argument. Indeed, after having decided to call Swearingen as a defense witness, counsel largely abandoned Swearingen during closing argument instead of explaining why her recantation was the truth and using her to contradict
Harden. E.g., Tr. 9971 (“And how many times she lied and whether or not she ever told the truth, who knows?”). Defense counsel’s failures to effectively cross-examine law enforcement and
51 Ackom wrote in his report of the December 22 interview that Gable said he knows the Dome Building and grounds well. Resp. Ex. 292 at 648. But Gable demonstrated in his Task Force interviews that he actually did not know the area well, misidentifying key places such as the parking lot where Francke was stabbed and the porch on which he was found. E.g., Resp. Ex. 292 at 281 (Ackom’s handwritten notes show Gable identified the east parking lot and the south porch (toward Center Street) as the relevant lot and porch). 52 Despite the State’s contrary argument, CR 101 at 99-100, there was no strategic benefit to be gained from criticizing the crime scene investigation, and doing so came with a downside: the jury might believe any “missing” or “lost” evidence would have pointed to Gable. Cf. Eze v. Senkowski, 321 F.3d 110, 133 (2d Cir. 2003) (where an attorney can achieve a benefit for a client “without . . . undesirable effect,” the failure to do so cannot be chalked up to strategy.).
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Janyne left the State’s characterization of Gable’s statements to police unrebutted. Counsel’s failures left an opening for the State to present a coherent story, much like the story recounted in the State’s current Response.53
V. GABLE’S SENTENCE VIOLATED THE EX POST FACTO CLAUSE AND, BUT FOR COUNSEL’S MISTAKE, HE WOULD HAVE RECEIVED A LAWFUL SENTENCE.
The State argues that Gable’s Ex Post Facto Clause claim is procedurally barred because the Oregon Court of Appeals decided that direct appeal claim on an independent and adequate state ground when it held: “The claim of error is unpreserved and we decline to address it.” CR
101 at 75-77. This Court should reject the State’s procedural argument and address the merits of this claim because the basis for the state court’s decision not to hear the claim is not adequate to bar federal review because it is not regularly applied.54
In any event, relief is warranted on the ineffective-assistance claim because, as the State concedes, the Oregon courts declined to address this meritorious federal ex post facto issue because trial counsel failed to preserve it. CR 101 at 76. Had counsel preserved the issue, Gable would have received relief under State v. Wille, 317 Or. 487, 858 P.2d 128 (1993). This denial of appellate review and of relief from the illegal ex post facto sentence establishes the Strickland
53 In addition to Gable’s innocence, Martinez v. Ryan, 132 S. Ct. 1309 (2012), provides “cause and prejudice” to excuse the procedural default with regard to the ineffective assistance of counsel claims, which are “substantial” which is all Martinez requires. In any event, the State’s generic argument that that post-conviction and trial counsel were effective as a general matter, CR 101 at 71-75, should be accorded no weight. If counsel is ineffective in even one respect, relief is warranted. Kimmelman v. Morrison, 477 U.S. 365, 384-85 (1986). Moreover, the State utterly fails to respond to indications that post-conviction counsel was unfamiliar with the trial record set out in the Brief in Support. E.g., CR 74 at 16 n.11. 54 Alternatively, if the Court believes the issue is defaulted, the Court may still address the merits of this claim because Gable is actually innocent of the crime and sentence. If the Court finds the direct appeal claim to be defaulted but that the default is excused by Gable’s innocence, review is de novo.
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prejudice that flows from counsel’s deficient performance. Gable should receive the same relief via his post-conviction ineffective-assistance claim that he would have obtained in the first instance had his attorney preserved the issue. Relief on the ineffective-assistance claim is appropriate even under the AEDPA because the Oregon Supreme Court applied the wrong analysis for prejudice.
A. This Court Is Free To Address The Merits Of Gable’s Direct Appeal Ex Post Facto Claim.
The State cannot establish and independent and adequate state ground because two similarly situated defendants received relief. In order to constitute an independent and adequate ground sufficient to support a finding of procedural default, a state rule must be clear, consistently applied, and well-established at the time of the purported default. Wells v. Maass, 2 F.3d 1005,
1010-11 (9th Cir. 1994). In two other appellate cases decided contemporaneously with Gable’s, the Oregon Supreme Court granted relief on identical ex post facto claims without regard to whether the issue was preserved. Wille, 858 P.2d at 137-39; State v. Langley, 318 Or. 28, 31-32,
861 P.2d 1012, 1012-13 (1993) (“Pursuant to Wille, defendant constitutionally could not have been sentenced under the life imprisonment without the possibility of parole sentencing option, and the trial court incorrectly instructed the jury on that option.”). Langley, the second person to receive relief, was represented by the same attorney who represented Gable, who did not object in either case. Gable was the third similarly situated person to present this ex post facto question to
Oregon’s appellate courts, and the only such person not to receive relief.
The Oregon Court of Appeals declined to address the issue in Gable’s case because it had not been preserved by trial counsel, and the Oregon Supreme Court denied review. This inconsistent treatment demonstrates that the Oregon preservation rules were neither clear nor
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consistently applied at the relevant time. The state court’s arbitrary refusal to consider the issue does not prevent this Court from reviewing the merits of this important federal claim, and granting the federal, constitutional relief obtained by Wille and Langley. E.g., Lee v. Kemna, 534 U.S. 362,
367 (2002).55
B. Counsel’s Failure To Object To The Application Of An Ex Post Facto Law At Sentencing Prejudiced Gable In Violation Of Strickland.
The State next argues that relief should be denied on the claim that counsel was ineffective for failing to object to the application of the ex post facto sentencing law because this Court should defer under the AEDPA to the decision of the Oregon Supreme Court denying relief. CR 101 at
77. It is undisputed that this claim was fairly presented to the state courts and that this Court should rule on the merits of this claim.
The parties agree that Strickland’s two-prong analysis applies to this claim, and that counsel’s performance with regard to the ex post facto issue at sentencing was objectively unreasonable, satisfying the first prong. CR 101 at 77, 79 (Strickland’s prejudice prong “is the only part of the test at issue in petitioner’s case.”).
The parties dispute the appropriate analysis under Strickland’s second prong. Gable advocates for a “straightforward” Strickland prejudice analysis that requires proof that, but for counsel’s ineffectiveness, there is a “reasonable probability” that the outcome of the proceeding—
55 The State relies on Nitschke v. Belleque, 680 F.3d 1105 (9th Cir. 2012), which addressed Oregon’s plain error rule. CR 101 at 76. It appears that the Oregon court relied on a different procedural rule here when it cited State v. Walton, 311 Or. 223, 241, 809 P.2d 81 (1991). State v. Gable, 127 Or. App. 320, 332 (1994). The rule in Walton, addresses when the Oregon courts should reach state and federal constitutional claims that were not clearly raised below. See Walton, 311 Or. at 241 (citing State v. King, 307 Or. at 338, 768 P.2d 391; State v. Hitz, 307 Or. 183, 188-89, 766 P.2d 373 (1988)). As the Walton, King, and Hitz cases show, the contours of this rule are ill-defined, and the rule is not “regularly applied,” rendering the rule inadequate to form an independent state bar to federal review.
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here, the sentencing proceeding—would have been different. Strickland, 466 U.S. 668, 694
(1984). The State advocates for a different test but does not address the cases holding that an ex post facto violation is plain error, and that, when counsel fails to object at sentencing, and the result is an illegal or ex post facto sentence, Strickland prejudice is established. CR 74 at 183 (citing e.g., United States v. Braggs, 196 F. App’x 442, 445 (8th Cir. 2006) (unpub’d), United States v.
Silva, 106 F.3d 397 at *2 (5th Cir. 1997) (unpub’d)). These cases apply the straightforward
Strickland test, and not the specialized test the State now advocates, which is reserved for the special rules that apply to guilty pleas under Hill v. Lockhart.
It is undisputed that Gable never waived his ex post facto rights, and that counsel did not object on ex post facto grounds to the application of the new, more onerous law. Gable was sentenced under the new law. Counsel’s failure to object left Gable’s ex post facto challenge unpreserved for appeal. On appeal, the State conceded that the ex post facto error was an “error of law” and “the court need not go beyond the record to resolve it.” Resp. Ex. 107 at 96. Because counsel had failed to preserve the issue, the State argued on direct appeal that Gable would not be prejudiced by leaving the issue to be decided in the post-conviction context. Id. at 96-97. The
State does not now dispute that Wille is squarely on point, and remains good law. The only difference between the two cases was that Wille’s attorney had objected to application of the new law in the trial court, and Gable’s attorney did not. Wille received relief on direct appeal, while the Oregon appellate courts refused to hear Gable’s direct appeal claim because it was unpreserved.
C. The State Court Decision Is Unreasonable Because The Court Grafted An Additional Burden Onto The Straightforward Strickland Analysis.
The Supreme Court has repeatedly admonished lower state and federal courts not to graft additional requirements onto the Strickland prejudice analysis. Glover v. United States, 531 U.S.
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198, 204 (2001) (“We hold that the Seventh Circuit erred in engrafting this additional requirement onto the prejudice branch of the Strickland test.”). Where, as here, an attorney’s mistake at sentencing results in a deprivation of a right—here an ex post facto right—Strickland prejudice is established. See Williams v. Taylor, 529 U.S. 362, 393 & n.18 (2000) (stating courts must not
“depart” from a “straightforward application of Strickland when counsel’s ineffectiveness does deprive the defendant of a substantive or procedural right to which the law entitles him”).
The State asks this Court to ratify the Oregon Supreme Court’s decision by applying a special prejudice analysis that is typically reserved for cases challenging guilty pleas based on ineffective assistance of counsel. CR 101 at 79-80. However, the Oregon Supreme Court decision, which the State defends, unreasonably complicated the Strickland analysis. Instead of finding that prejudice resulted from the imposition of an unlawful ex post facto sentence, the state court expanded the inquiry by asking whether Gable would have waived his ex post facto right if counsel had informed him of it. This additional inquiry ratcheted up the burden for demonstrating prejudice to a subjective, speculative, and unattainable new height. The Oregon Supreme Court’s deviation from the proper Strickland analysis was objectively unreasonable, and, therefore, does not deserve deference under the AEDPA.
In Williams, the Supreme Court reversed a decision of Virginia’s highest court and granted habeas relief under the AEDPA, finding that the state court misapplied Strickland when it grafted an additional requirement onto Strickland’s prejudice test. Id. at 393-95; see also Washington,
219 F.3d 620 at 632-35 (granting habeas relief under the AEDPA for a Strickland violation where counsel was ineffective and the State appellate court did not apply the “proper prejudice analysis prescribed” by Strickland, focusing instead on Lockhart’s alternative prejudice analysis). The
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Oregon Supreme Court’s decision should be reversed for the same reason. The Oregon Supreme
Court’s deviation from the proper Strickland test was unreasonable and does not warrant deference.
In another case, the Supreme Court reaffirmed that the analysis advocated by Gable is the appropriate prejudice analysis where a defendant claimed that his attorney provided ineffective assistance by failing to object to the sentencing court’s application of a provision of the sentencing guidelines. Glover, 531 U.S. at 201-04. The Supreme Court held that courts must not deviate from the “straightforward,” outcome-focused Strickland prejudice analysis “when the ineffectiveness of counsel does deprive the defendant of a substantive or procedural right to which the law entitles him.” Id. (finding the lower court improperly grafted additional requirement onto
Strickland’s prejudice test (citing Williams, 529 U.S. at 393 & n.18)). The Supreme Court further noted that the sentencing error “would have been correctable on appeal,” holding “it is clear that prejudice flowed from the asserted error in sentencing.” Id. at 204.
As noted above, instead of applying this straightforward analysis, the State asks this Court to ratify the Oregon Supreme Court decision and to apply the specialized analysis that applies to challenges to guilty pleas based on ineffective advice of counsel. CR 101 at 80 (citing Premo v.
Moore, 562 U.S. 115 (2011)). This specialized prejudice analysis requires that the petitioner show that there was reasonable probability that, “but for counsel’s errors, he would not have pleaded guilty and would have insisted on going to trial.” Hill v. Lockhart, 474 U.S. 52, 58-59 (1985). Of course, the claim here does not involve a challenge to a guilty plea. For the reasons that follow, the specialized Hill analysis does not supplant the “straightforward” analysis the Supreme Court applied in Glover, Williams, and Strickland itself.
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This case is not like a plea case where the defendant was advised of his trial rights, and made a decision to waive those rights, but later complains that counsel was ineffective for failing to provide information that would have made a difference in his calculus of whether to accept the plea. The defendant in that situation was advised of his rights and made a personal waiver decision, usually in open court. Courts are able to look to objective facts about the context of the plea to assess whether the additional advice would have made a difference, such as the risks associated with trial and the benefits associated with the plea bargain, including, for example, the strength of the State’s case, and whether, as a result of the plea bargain, charges were dismissed, the defendant’s sentence exposure was capped, reduced, or made more certain. In such cases, the court does not make the waiver decision for the defendant. In this context, when the court assesses the “credibility” of the defendant’s position that he would not have pled guilty if the additional information had been provided, the court is not purely speculating, but, rather, is deciding based on objective facts whether the advice not given was material to the bargain the defendant struck.
Unlike the plea context where the defendant decided to waive his rights, Gable never made a personal decision to waive his rights in the first instance, and Gable’s testimony about what he would have done is the only evidence to be considered. In this context, when the court makes a
“credibility” decision about this testimony, the court is substituting its waiver decision for Gable’s.
The Oregon Supreme Court improperly analyzed whether counsel employed a strategy as part of the Strickland prejudice analysis, but strategy is properly considered in the analysis of counsel’s performance under Strickland’s first prong. The Oregon Supreme Court was unduly focused on the fact that, in some cases, a defendant facing the death penalty might, for strategic reasons, wish to waive his ex post facto rights with respect to this particular statute so as to give
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the jury more non-death sentencing options. In doing so, the Oregon courts discounted the contrary possibility that other defendants—including most notably the defendant in Wille—might chose the contrary strategy of requiring the jury to choose between life and death under the old law. The consideration of possible strategy has no place in the proper prejudice analysis.
If counsel believed for a strategic reason that Gable should have waived his ex post facto rights, counsel was obliged to so advise his client, and obtain Gable’s “personal” waiver before counsel could acquiesce in the application of the harsher sentencing law. Because by definition the ex post facto law is more onerous, and because counsel did not obtain the requisite waiver from his client, counsel was obliged to object to application of the new law. It is undisputed that counsel did not do so. This was ineffective. Questions about strategy and waiver are part of the analysis of counsel’s performance under the first prong of Strickland (i.e., whether counsel failed to do what he needed to do to protect his client’s ex post facto rights).
The state court acted contrary to and unreasonably applied Strickland when it made the waiver question part of Strickland’s prejudice analysis. Moving the waiver question to the prejudice prong improperly places the burden of counsel’s mistakes on the defendant. Under this analysis, it will always be pure speculation—on the part of the petitioner or the court—to say what might have occurred if counsel had done his job.
Indeed, the only evidence allowed by the post-conviction trial court on remand was Gable’s answer to a single question: what would he have done if he had known about his ex post facto rights? PCR Remand Tr. at 14-16, 39. Gable provided his subjective opinion, and the trial court, exercising its subjective judgment (uninformed by objective markers), but purporting to rule
“[w]ithout speculation,” found that Gable’s “hypothetical” answer was “simply not credible.”
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Resp. Ex. 371. Under this analysis, the court’s credibility determination will supplant the defendant’s personal waiver decision in every case. Creation of this new test launched the state court into a speculative inquiry inconsistent with the Strickland prejudice analysis.
The proper prejudice analysis is more straightforward. As a result of counsel’s failures,
Gable was sentenced under a new law to a harsher sentence than was available at the time of the crime. Thus, Gable was prejudiced because he suffered an independent violation of his ex post facto rights, and an illegal sentence.
As Justice Martha Walters of the Oregon Supreme Court explained in dissent from that court’s decision in Gable’s case, there was no need to resort to “speculation” because: “we know with certainty that counsel’s failure to object prejudiced [Gable]” because “but for counsel’s failure to object, Gable would have received appellate relief under Wille.” Gable v. State, 353 Or. 750,
765, 305 P.3d 85 (2013). Justice Walters explained that it is neither necessary nor appropriate to focus on whether Gable’s “testimony about what he would have done was credible” because “[w]e know for a fact that [Gable] did not waive his constitutional right” and “[a]s a result, his lawyer had an obligation to assert and protect that right.” Id. at 767. This is the proper prejudice analysis.
The State relies on Sophanthavong v. Palmateer, 373 F.3d 859 (9th Cir. 2004), to argue that this Court “is required” to defer to the Oregon post-conviction court’s credibility findings because that court held a hearing. CR 101 at 79. However, this Court should not defer to the state post-conviction court’s finding that Gable’s testimony about whether he would have waived his ex post facto right had his counsel told him about those rights was not credible for several reasons.
Most importantly, no deference is required because that testimony is irrelevant to the proper
Strickland analysis. Moreover, the credibility finding is unreasonable in light of the record and
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the possibility of an equally viable alternative reasons for not waiving one’s ex post facto rights.
In any event, the limitations on the development of the record in the post-conviction “hearing”
(where no evidence was taken save the judge’s questioning about what Gable would have done) mitigates against any deference. As the Supreme Court explained, where a “thorough analysis by a federal court produces a firm conviction that [a state court] judgment is infected by constitutional error . . . such an erroneous judgment is “unreasonable” within the meaning of the Act even though that conclusion was not immediately apparent.” Williams, 529 U.S. at 389. The Oregon Supreme
Court’s analysis does not withstand such scrutiny in light of Strickland.
VI. CONCLUSION.
For the foregoing reasons, Petitioner respectfully requests that this Court grant the writ of habeas corpus with respect to all counts of conviction and order the matter dismissed unless the
State of Oregon grants him a new trial. In the alternative, if the Court grants relief as to the unconstitutional sentence only, Petitioner respectfully requests that the Court order that the judgment be amended to reflect that the sentence is for a term of life with the possibility of immediate parole. Petitioner has established Schlup innocence based on his submission, but, in the event the Court finds otherwise, Petitioner requests an evidentiary hearing regarding the Schlup evidence.
Respectfully submitted on March 14, 2016.
/s/ Nell Brown Nell Brown Assistant Federal Public Defender
/s/ Mark Ahlemeyer Mark Ahlemeyer Assistant Federal Public Defender
Attorneys for Petitioner
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