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Nell Brown Assistant Federal Public Defender 101 S.W. Main Street, Suite 1700 Portland, Oregon 97204 Telephone: (503) 326-2123 Facsimile: (503) 326-5524 E-mail: [email protected]
Attorney for Petitioner
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
FRANK E. GABLE, No. 3:07-cv-00413-AC Petitioner, v. BRIEF IN SUPPORT OF AMENDED PETITION MAX WILLIAMS, FOR WRIT OF HABEAS CORPUS Respondent. ______
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TABLE OF CONTENTS
I. INTRODUCTION...... 1 II. FACTUAL BACKGROUND AND PROCEDURAL HISTORY...... 5 A. Trial Court Proceedings...... 5 1. The State’s Case...... 6 2. Gable’s Defense...... 11 3. Penalty Phase...... 15 B. Direct Appeal Proceedings...... 15 C. Post-Conviction Trial-Level Proceedings...... 16 D. Post-Conviction Appeal...... 17 E. Post-Conviction Proceedings on Remand...... 18 F. Second Post-Conviction Appeal...... 18 G. Federal Habeas Corpus Proceedings...... 19 III. EVIDENCE OF GABLE’S INNOCENCE SUPPORTS HABEAS RELIEF AND EXCUSES ANY PROCEDURAL DEFAULT...... 20 A. Evidence of Actual Innocence May Form A Basis For Relief Or Excuse Procedural Default...... 41 B. The Course Of The Investigation Supports Gable’s Innocence, And The Full Story Bolsters The Recantation Evidence...... 20 1. Background...... 20 2. Facts That Shaped The Early Investigation...... 22 3. The Media Regularly Reported On The Investigation...... 26 4. Investigative Leads And Other Suspects...... 29 5. The Investigation Stalled; Media And Political Pressure Mounted...... 30 6. The Pivot To Gable...... 34 C. Newly Available Recantation Evidence Supports A Finding Of Innocence...... 44 1. Michael Keerins, The First To Implicate Gable, Now Admits That He Lied...... 44 2. Expert Scientific Evidence Shows The Interrogation Methods Used By The Task Force Were Highly Likely To Produce False Testimony...... 47 3. The State’s Eyewitnesses No Longer Link Gable To The Murder...... 49 i
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4. New Evidence Shows That Gable Never Confessed To The Murder...... 59 5. The Common Experiences Of The Witnesses Bolster The Recantation Evidence...... 87 6. The Scientific Evidence, Together With The Recantation Evidence, Supports A Finding Of Innocence...... 90 D. The Remainder Of The Evidence The State Marshalled Against Gable Does Not Support His Conviction...... 93 1. Gable’s Statements To Law Enforcement Are Indicative Of Innocence...... 93 2. Gable Had An Alibi For 7:00 P.M. On January 17, 1989...... 99 3. The Remainder Of The Evidence Presented By The State At Trial Was Neither Inculpatory, Unique To Gable, Nor, In Some Instances, Relevant...... 108 E. Evidence Of Third-Party Guilt...... 116 1. John Lee Crouse...... 116 2. Timothy “Rooster” Natividad...... 126 3. Samuel “Navarro” Cornejo...... 131 IV. ARGUMENT...... 133 A. Habeas Relief Is Warranted Based On The Denial Of Gable’s Right To Present A Complete Defense And Other Trial Errors, Particularly, Of Counsel, That Individually And Cumulatively Violated His Sixth And Fourteenth Amendment Rights And Rendered His Trial Unfair...... 133 1. Gable Is Entitled To Habeas Relief Because The Trial Court Improperly Excluded Evidence Critical To The Defense, Including Evidence Of John Crouse’s Guilt...... 136 2. Gable Is Entitled To Habeas Relief Because Counsel Performed Ineffectively Under The Sixth Amendment...... 155 B. Habeas Relief is Warranted Because Gable’s Sentence Violates The Ex Post Facto Clause And His Counsel Failed To Effectively Safeguard His Ex Post Facto Rights. 172 1. The Ex Post Facto Clause Of The Constitution Bars Application Of A Later-Enacted Statute That Increases The Penalty For A Crime...... 173 2. Gable Is Entitled To Habeas Relief Because His Sentence Violates The Ex Post Facto Clause...... 179 3. Gable Is Entitled To Habeas Relief Because Counsel’s Errors With Regard To His Ex Post Facto Rights Violated the Sixth Amendment...... 181 V. CONCLUSION...... 189
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TABLE OF AUTHORITIES
CASES Alcorta v. Texas, 355 U.S. 28 (1957) ...... 170 Avila v. Galaza, 297 F.3d 911 (9th Cir. 2002) ...... 158 Berryman v. Morton, 100 F.3d 1089 (3d Cir. 1996)...... 172 Boykin v. Alabama, 395 U.S. 238 (1969) ...... 188 Brecht v. Abrahamson, 507 U.S. 619 (1993) ...... 135, 154 Brookhart v. Janis, 384 U.S. 1 (1966) ...... 182 Bullington v. Missouri, 451 U.S. 430 (1981) ...... 180 Burdge v. Belleque, 290 F. App’x 73 (9th Cir. 2008) ...... 183, 184, 185 Burns v. Gammon, 260 F.3d 892 (8th Cir. 2001) ...... 185 California v. Trombetta, 467 U.S. 479 (1984) ...... 138 Carriger v. Stewart, 132 F.3d 463 (9th Cir. 1997) ...... 20, 21 Carter v. Bowersox, 265 F.3d 705 (8th Cir. 2001) ...... 158 Chaker v. Crogan, 428 F.3d 1215 (9th Cir. 2005) ...... 134 Chambers v. Mississippi, 410 U.S. 284 (1973) ...... passim Chia v. Cambra, 360 F.3d 997 (9th Cir. 2004) ...... 138, 139, 142, 148 Coleman v. Thompson, 501 U.S. 722 (1991) ...... 20 Collins v. Youngblood, 497 U.S. 37 (1990) ...... 173 Cone v. Bell, 556 U.S. 449 (2009) ...... 134 Crane v. Kentucky, 476 U.S. 683 (1986) ...... 138 iii
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Cudjo v. Ayers, 698 F.3d 752 (9th Cir. 2012) ...... passim Darden v. Wainwright, 477 U.S. 168 (1986) ...... 170 Donnelly v. DeChristoforo, 416 U.S. 637 (1974) ...... 135, 170 Donnelly v. United States, 228 U.S. 243 (1913) ...... 149 Eggleston v. United States, 798 F.2d 374 (9th Cir. 1986) ...... 171 Evans v. Lewis, 855 F.2d 631 (9th Cir. 1988) ...... 159 Evitts v. Lucey, 469 U.S. 387 (1985) ...... 155 Glover v. United States, 531 U.S. 198 (2001) ...... 181, 183, 185 Groseclose v. Bell, 130 F.3d 1161 (6th Cir. 1997) ...... 156 Harris v. Wood, 64 F.3d 1432 (9th Cir. 1995) ...... 172 Hayes v. Brown, 399 F.3d 972 (9th Cir. 2005) ...... 170 Hernandez v. Cowan, 200 F.3d 995 (7th Cir. 2000) ...... 157 Herrera v. Collins, 506 U.S. 390 (1993) ...... 20 Herring v. New York, 422 U.S. 853 (1975) ...... 155 Holmes v. South Carolina, 547 U.S. 319 (2006) ...... 138 House v. Bell, 547 U.S. 518 (2006) ...... 20, 21, 22 In re Winship, 397 U.S. 358 (1970) ...... 20 Jaramillo v. Stewart, 340 F.3d 877 (9th Cir. 2003) ...... 22 Johnson v. Baldwin, 114 F.3d 835 (9th Cir. 1997) ...... 171 Johnson v. United States, 529 U.S. 694 (2000) ...... 179 Johnson v. Zerbst, 304 U.S. 458 (1938) ...... 188 Jones v. Barnes, 463 U.S. 745 (1983) ...... 158
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Jorgensen v. Cupp, 31 Or. App. 157 (1977) ...... 157 Joshua v. DeWitt, 341 F.3d 430, 449-50 (6th Cir. 2003) ...... 158 Kimmelman v. Morrison, 477 U.S. 365 (1986) ...... 181 Lafler v. Cooper, 132 S. Ct. 1376 (2012) ...... 181 Lindsey v. Washington, 301 U.S. 397 (1937) ...... 173 Lord v. Wood, 184 F.3d 1083 (9th Cir. 1999) ...... 159, 162 Lunbery v. Hornbeak, 605 F.3d 754 (9th Cir. 2010) ...... passim Magill v. Dugger, 824 F.2d 879 (11th Cir. 1987) ...... 156 Mak v. Blodgett, 970 F.2d 614 (9th Cir. 1992) ...... 172 Marks v. United States, 430 U.S. 188 (1977) ...... 173 Martinez v. Ryan, 132 S. Ct. 1309 (2012) ...... passim McMann v. Richardson, 397 U.S. 759 (1970) ...... 155 Mempa v. Rhay, 389 U.S. 128 (1967) ...... 181 Missouri v. Frye, 132 S. Ct. 1399 (2012) ...... 181 Murray v. Carrier, 477 U.S. 478 (1986) ...... 21 Napue v. Illinois, 360 U.S. 264, 271-72 (1959) ...... 171 Nguyen v. Curry, 736 F.3d 1287-95 (9th Cir. 2014) ...... 134 Northern Mariana Islands v. Bowie, 243 F.3d 1109, 1125 (9th Cir. 2001) ...... 171 Nulph v. Faatz, 27 F.3d 451 (9th Cir 1994) ...... 180 Parle v. Runnels, 505 F.3d 922 (9th Cir. 2007) ...... 135 Perry v. Rushen, 713 F.2d 1447 (9th Cir. 1983) ...... 138 Riley v. Payne, 352 F.3d 1313 (9th Cir. 2003) ...... 158
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Rios v. Rocha, 299 F.3d 796 (9th Cir. 2002) ...... 159 Roe v. Delo, 160 F.3d 416 (8th Cir. 1998) ...... 158 Sanders v. Ratelle, 21 F.3d 1446 (9th Cir. 1994) ...... 159 Schlup v. Delo, 513 U.S. 298 (1995) ...... passim Sistrunk v. Armenakis, 292 F.3d 669 (9th Cir. 2002) ...... 21 Smith v. Baldwin, 510 F.3d 1127 (9th Cir. 2007) ...... 20 State v. Cazares-Mendez, 350 Or. 491 (2011) ...... 143 State v. Wille, 115 Or. App. 47, 839 P.2d 712 (1992)...... 175 State v. Wille, 317 Or. 487, 858 P.2d 128 (1993) ...... 173-75, 179, 186 Strickland v. Washington, 466 U.S. 668 (1984) ...... passim Tejada v. Dubois, 142 F.3d 18 (1st Cir. 1998) ...... 156 Thomas v. Hubbard, 273 F.3d 1164 (9th Cir. 2002) ...... 135 Tilcock v. Budge, 538 F.3d 1138 (9th Cir. 2008) ...... 182, 183 United States v. Armstrong, 621 F.2d 951 (9th Cir. 1980) ...... 139 United States v. Braggs, 196 F. App’x 442 (8th Cir. 2006) ...... 183 United States v. Conley, 349 F.3d 837 (5th Cir. 2003) ...... 183, 185 United States v. Cronic, 466 U.S. 648 (1984) ...... 155 United States v. Crosby, 75 F.3d 1343 (9th Cir. 1996) ...... 138, 151 United States v. Davis, 397 F.3d 340 (6th Cir. 2005) ...... 179 United States v. Dozier, 119 F.3d 239 (3d Cir. 1997)...... 179 United States v. Gonzalez, 238 F. App’x 350 (10th Cir. 2007) ...... 179 United States v. Hickman, 331 F.3d 439 (5th Cir. 2003) ...... 179
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United States v. Marcus, 560 U.S. 258 (2010) ...... 186 United States v. Morrison, 449 U.S. 361 (1981) ...... 155 United States v. Perkins, 937 F.2d 1397 (9th Cir. 1991) ...... 139 United States v. Peters, 147 F. App’x 836 (11th Cir. 2005) ...... 179 United States v. Preston, 751 F.3d 1008 (9th Cir. 2014) ...... 47 United States v. Silva, 106 F.3d 397 (5th Cir. 1997) ...... 183 United States v. Thompson, 113 F.3d 13 (2d Cir. 1997)...... 179 Weaver v. Graham, 450 U.S. 24 (1981) ...... 173, 180 Wiggins v. Smith, 539 U.S. 510, 538 (2003) ...... 181 Williams v. Roe, 421 F.3d 883 (9th Cir 2005) ...... 180 Williams v. Taylor, 529 U.S. 362 (2000) ...... 182 Williamson v. United States, 512 U.S. 594 (1994) ...... 148 STATUTORY AUTHORITIES 28 U.S.C. § 2254 ...... 134, 173 Or. Rev. Stat. § 163.105(1987) ...... 174 Or. Rev. Stat. § 163.150(1)(e)(1987) ...... 174 Or. Rev. Stat. § 163.150(2)(a)(1989) ...... 174 RULES AND REGULATIONS Or. R. Evid.804(3)(c) ...... 145 CONSTITUTIONAL PROVISIONS U.S. Const. amend. VI ...... 155 ADDITIONAL AUTHORITIES Alexandra Gross et al., Witness Recantation Study: Preliminary Findings, Nat’l Registry of Exonerations, http://www.law.umich.edu/special/exoneration/Documents/RecantationUpdate_5_201 3.pdf (2013)...... 92 Brandon L. Garrett, Convicting The Innocent (2011) ...... 49 C. Ronald Huff et al., Convicted But Innocent: Wrongful Convictions and Public Policy (1996) ...... 92 vii
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Richard A. Leo, False Confessions: Causes, Consequences, and Implications, 37 J. Am. Psychiatry L. Online 332, 333-37, http://www.jaapl.org/content/37/3/332.full.pdf (2009) ...... 47 Richard A. Leo et al., The Social Psychology Of Police Interrogation: The Theory And Classification Of True And False Confessions, 16 Stud. L. Pol. & Soc’y 189, 189-251 (1997)……………………..……………………………………………………………...47 Richard J. Ofshe et al., The Decision to Confess Falsely: Rational Choice and Irrational Action, 74 Denv. U. L. Rev. 979 (1997)…………………………………………………47 The Confessions, available at http://www.pbs.org/wgbh/pages/frontline/the-confessions/. (PBS Frontline television broadcast Nov. 9, 2010) ...... 49
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I. INTRODUCTION.
Since 1989, Petitioner Frank Gable has staunchly maintained his innocence of the murder of Michael Francke, who was the Director of the Oregon Department of Corrections at the time he died on January 17, 1989. Gable’s conviction resulted from a trial suffused with federal constitutional violations, most basically in direct contravention of the Supreme Court cases guaranteeing the right to present a complete defense. The state trial court refused to permit the defense to present to the jury evidence that someone else had committed the murder. As a result, the jury never learned the details of John Lee Crouse’s confession to Francke’s murder and other evidence of third-party guilt. Trial counsel’s performance suffered from a number of critical errors, and the prosecution capitalized on trial counsel’s mistakes, overstating the strength of the evidence it presented. In the end, the state court sentenced Gable to a sentence of life in prison without the possibility of parole in violation of the Constitution’s prohibition on ex post facto laws.
Although state court counsel inexplicably failed to preserve many important issues for federal review, this Court is empowered to provide the federal constitutional review that has never occurred in this case because two exceptions to the procedural default doctrine apply. First, under
Martinez v. Ryan, 132 S. Ct. 1309 (2012), post-conviction counsel’s errors excuse the default of certain claims that trial or appellate counsel provided ineffective assistance. Second, under the actual innocence standard of Schlup v. Delo, 513 U.S. 298 (1995), any default is excused because
Gable presents for the first time evidence that demonstrates that, with the full story told, no reasonable juror would be confident in his guilt beyond a reasonable doubt.
The evidence of innocence falls into several categories: recantations by critical witnesses, evidence about the investigation that produced the false trial testimony, including scientific
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evidence regarding the pervasive abuse of polygraph examinations that skewed witness statements, and evidence of third-party guilt.
From its inception, this was one of the most investigated and publicized crimes in Oregon history. Gable did not become the focus of the State’s investigation until long after the crime, and at a time when the Oregon State Police investigation into the murder was being publicly criticized—and even mocked—and when political pressure to solve the crime had reached its apex.
Specifically, the State Police investigation went utterly cold by Summer 1989 at which time its work was being criticized as costly and ineffective, political pressure for the crime to be solved was mounting, and alternative inquiries (most notably by the Legislature and an independent inquiry commissioned by the Governor) were being instigated in reaction to the floundering investigation. It was in this atmosphere that the State Police investigators latched on to Gable.
None of the key trial witnesses against Gable came forward at the time of the crime despite numerous requests by investigators for information and despite the wide net cast by the State Police during the first eight months of the investigation. Indeed, even after Gable became the focus of the investigation, most of these witnesses, who were Gable’s acquaintances from the Salem,
Oregon, drug world, and who would eventually become the State’s “material” witnesses, still did not implicate Gable. Gable repeatedly and adamantly asserted his innocence and his fear of being
“railroaded” during numerous interrogations. Investigators had no murder weapon and neither motive nor physical evidence to tie Gable to the crime. Yet, over the subsequent six-month period, the State Police repeatedly interrogated almost everyone Gable knew, exposing them to a polygraph examiner who told them they were lying, and one by one they began to implicate Gable.
By April 1990, the State had formed a cadre of “material” witnesses, comprised of Gable’s
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acquaintances and “jailhouse snitches,” who were willing to implicate Gable in the murder under the theory of the crime—an interrupted car burglary—to which Crouse had earlier confessed. At trial, the State relied almost exclusively on the testimony of these witnesses, nearly all of whom have now recanted. Attached in support of Gable’s petition are the recantations of these witnesses, any one of which would be sufficient to raise serious questions about the verdict:
Janyne Gable: who testified at trial that Gable was not at home at the time of the murder, now swears that, if she had been shown phone records and an eviction notice the Gables received on the day after the murder, she would have recalled that she was with Gable at home at the time of the murder.
Cappie Harden: who testified at trial that he and another witness, Jodie Swearingen, saw Gable at the crime scene committing the murder, now swears that he was not at the crime scene and did not witness the murder. He admits that he lied during his testimony, falsely implicating Gable, as a result of police pressure.
Jodie Swearingen: who testified for the defense at trial that she and Harden were not at the crime scene together and did not witness the murder, but who was impeached by the State with her Grand Jury testimony that corroborated Harden’s story, confirms her trial testimony that she was not an eyewitness and swears that her Grand Jury testimony was false and made in response to police pressure to corroborate Harden’s lies.
Earl Childers: who testified at trial that he saw Gable near the crime scene around the time of the murder, and that Gable confessed to him months later, now swears that he cannot place Gable at the crime scene near the time of the murder and that Gable never confessed to him.
Dan Walsh: who testified at trial that Gable confessed to him twice, now swears that Gable never confessed to him.
Kevin Walker: who testified at trial that Gable confessed to him, now swears that Gable never confessed to him.
This stunning list of recanted false testimony by key witnesses, which is amplified by retractions of other witnesses who the State chose not to call to testify at trial, is explained by
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newly presented scientific evidence regarding the State’s abuse of polygraph examinations. As reflected in the declaration of expert David C. Raskin, Ph.D., the interrogations that generated the now-recanted trial testimony are classic examples of psychologically coercive interrogation tactics that produce unreliable testimony. The totality of the new evidence, including the recantations, alibi evidence, and scientific evidence, viewed together with the trial testimony and the information then-known but not presented at trial, including evidence of third-party guilt, demonstrates Gable’s innocence and easily meets the Schlup “miscarriage-of-justice” standard that permits the Court to review the federal constitutional violations that, individually and cumulatively, tainted the trial in this case.
This brief is divided into three sections. First, the factual background section summarizes the trial evidence, and, thereafter, describes the procedural history of the case to delineate the federal constitutional issues that are exhausted and those that are defaulted. Second, the evidence of innocence is divided into evidence previously known but not presented at trial; new recantation and scientific evidence generated by the Federal Public Defender investigation; the evidence presented at trial in the context of all the facts; and evidence of third-party guilt. The innocence evidence is presented along with argument for why this Court should consider all federal constitutional claims under the Schlup gateway. Third, the brief divides the arguments for habeas corpus relief into two subsections. The brief first demonstrates that the constitutional violations at trial, individually, and the combination of errors, cumulatively, resulted in an unfair trial and an unjust verdict. The brief thereafter addresses Gable’s unconstitutional sentence. In the end, Gable will ask this Court to grant long-delayed justice to an innocent man who became the fall guy for a crime he did not commit.
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II. FACTUAL BACKGROUND AND PROCEDURAL HISTORY.
A. Trial Court Proceedings.
On Tuesday, January 18, 1989, at 12:42 a.m., the body of the Oregon Department of
Corrections (ODOC) Director, Michael Francke, was discovered by an Oregon State Hospital
(OSH) security guard on the covered North Porch of the Dome Building, which sits on the OSH grounds. Francke had died of a stab wound to the heart sometime after 6:45 p.m. when he was last seen alive by a colleague inside the building.1
Thirteen months later, in April 1990, a Marion County Grand Jury returned an Indictment, charging Gable with six counts that alleged various theories of aggravated murder and one count of intentional murder, all in connection with the stabbing of Francke. Resp. Ex. 103.2 Salem attorneys Robert Abel and John Storkel were appointed to represent Gable. Resp. Ex. 102, at Entry
5. At the request of the State, eight witnesses—Michael Keerins, Randy Studer, Dan Walsh, Earl
Childers, Mark Gesner, John Kevin Walker, Cappie Harden, and Jodie Swearingen, were declared
1 In order to succinctly present the voluminous transcript and materials associated with this case, points not in dispute are discussed in summary fashion. Individuals are referred to by their last names unless more is required for context, with the exception of Janyne Gable, who will be referred to as “Janyne” for ease of reference. Where an individual’s name is immaterial to the disputed issues in the instant proceeding, it will be omitted. “Tr.” refers to the trial transcript, which is sequentially numbered, so no volume numbers or dates are included in the citations. References to the pre-trial transcripts include the volume number and date. “PCR Tr.” refers to the transcript of the post-conviction proceedings. Where possible, citations are to the Respondent’s Exhibits. However, some duplicative materials are included in Petitioner’s Exhibits A-H. Appendix A provides a summary of other suspects and leads and is presented as supplemental support for Gable’s innocence claim. 2 Count I alleged that the murder was related to the performance of Francke’s “official duties.” Count II alleged that he was killed during an attempted first-degree robbery. Counts III and IV alleged that he was killed to conceal the commission of, and the identity of the perpetrator of, a first-degree robbery, respectively. Counts v. and VI alleged that he was killed to conceal the commission of, and the identity of the perpetrator of, an attempted theft, respectively. Count VII alleged intentional murder.
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“material” to the State’s case. Resp. Ex. 102, at Entries 8-17, 20-23, 25-34. Jury selection took place from March 4 to April 26, 1991, and trial commenced on May 1, 1991.
1. The State’s Case.
At trial, the State presented evidence about the victim and the crime scene, none of which related to Gable or linked him to the murder. The State first presented the testimony of Francke’s colleagues and OSH employees and patients to detail his day and the period from 6:45 p.m. until his body was discovered after midnight. The State presented evidence that the murder took place around 7:00 p.m. in the Dome Building parking lot based primarily on the observations of the only eyewitness to come forward immediately after the murder, custodian Wayne Hunsaker, who witnessed an interaction between two men but could only provide a sketchy description of the assailant and the direction he ran. Tr. at 6868-6902.
Specifically, Hunsaker said that around 7:00 p.m., as he walked from the north end of the
Dome Building toward his car in the North Parking Lot, his attention was drawn to a “surprised, hurt sound,” “like somebody had their breath knocked out.” Tr. at 6881 (“Kind of surprised. Kind of ugh, kind of a grunt sound.”). When he turned around, he observed two men forty feet away from him, standing just feet apart and facing each other. Tr. at 6881-88, 9176. Hunsaker watched briefly, dividing his attention between the two men as they went in opposite directions; then he continued walking, looking back as he walked. Id. The presumed assailant turned and ran west out of the parking lot, via the driveway leading to 23rd Street, and behind a green generator at the old Salem hospital. The other man—presumably Francke—was facing west (away from the building), and turned and walked hastily back toward the Dome Building. Id. Hunsaker estimated the presumed assailant was taller than the other man, and was approximately 5’11” or 6’ tall, and
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175 pounds. Tr. at 6883-85, 6896. Hunsaker did not see Francke’s car in the area where the men stood, and he did not see anyone else in the area. Tr. at 6898, 9169-70, 9173-94.
Next, the State presented evidence of the crime scene investigation and expert testimony about the physical evidence. The State’s experts conceded that, despite their thorough search for evidence, the State had not recovered any physical, transfer or trace evidence that linked Frank
Gable to Francke’s murder. Tr. at 8234-40, 8263, 8405-08. No evidence suggested robbery or any particular motive, as nothing on Francke’s person or elsewhere was missing. E.g., Tr. at 6006,
6278, 6280, 6290, 6336-37, 6654. The murder weapon was never found. A shoe impression and numerous fingerprints found at the crime scene that could not be tied to Gable remained unmatched. Tr. at 6614-15, 8222-33.
Thereafter, the State presented its circumstantial case to tie Gable to the murder in four parts: (1) his lifestyle, (2) his statements to law enforcements, (3) the testimony of the “material” witnesses and others associated with Gable, and (4) testimony about a Chicago Cutlery knife.
The State first presented evidence painting Gable as a heavy methamphetamine addict, knife connoisseur, and former police informant who was familiar with the Dome Building from his days as an ODOC inmate worker and who had access to the location because his wife worked on the OSH grounds. In particular, the State presented the following undisputed facts. At the time of the murder, Gable lived with his then-wife, Janyne, in northeast Salem. Tr. at 7222. Janyne worked as a nurse at OSH, and Gable was unemployed. Both were methamphetamine users.
Gable’s acquaintances were primarily addicts (e.g., Childers, Studer, and Walsh) and drug dealers
(e.g., Walker and Gesner). Most mornings, Gable drove Janyne to work on the east end of the
OSH grounds (the opposite end of the OSH complex from the Dome Building). Gable had met
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his wife when he delivered supplies through underground tunnels as an inmate worker several years earlier. Tr. at 7180-88.
On the night of the murder, several of the Gables’ neighbors complained to their apartment complex manager that the Gables were making a lot of noise and that too many guests were coming and going from their apartment. Tr. at 7222. As a result, the following morning, the manger served an eviction notice on the Gables for “excessive noise.” Id. In March 1989, the Gables moved to a new apartment complex for about a month before they moved their belongings into the
Salem home of Janyne’s mother. Id.; Tr. at 7122-23. At that time, Gable moved to Coos Bay to live with his step-father, while Janyne went back and forth between Salem and Coos Bay. Tr. at
7688. In May, the Gables were both incarcerated for taking Gable’s step-father’s vehicle from
Coos Bay to Salem without permission. When Gable was released, he agreed to act as an informant for the Keizer Police Department, which then rented the Gables an apartment where they lived in
July. Tr. at 7129-30, 7232-35, 7246. Thereafter, the Gables briefly lived in the Salem home of friends, Dan Walsh and his wife Sheryl Lowery, until Walsh drove the couple to Coos Bay so
Gable could make an August court appearance there. The Gables thereafter stayed in Coos Bay with Gable’s step-father until Gable was arrested on September 16, 1989. Tr. at 7255. Gable has remained in custody since that day more than twenty-five years ago.
Second, the State presented the testimony of the many law enforcement officers who conducted numerous lengthy interrogations of Gable. These officers confirmed that Gable maintained his innocence and never confessed to the murder throughout the interrogations. Tr. at
7625, 7299, 8691-92. However, the State highlighted certain statements it deemed to be “slippage”
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and “tantamount to a confession” and, through Gable’s own statements, underscored that Gable had not provided a verifiable alibi. E.g., Tr. at 7625, 7354, Tr. at 9885, 9909, 9917, 9993-94.3
Third, the heart of the State’s case against Gable was comprised of the testimony of Janyne
Gable, Linda Perkins, and five of the eight witnesses who were originally designated as “material” to the State’s case: Cappie Harden, Earl Childers, Kevin Walker, Mark Gesner, and Dan Walsh.
The State’s theory at trial was that Francke interrupted Gable while he was burgling so- called “snitch papers” from Francke’s car as it sat in the spot marked “Director of Corrections” in the parking circle of the Dome Building at approximately 7:00 p.m. on January 17, 1989.4
According to the State’s theory, Gable was in the vehicle when Francke approached, but Gable lunged out, stabbing at Francke, slashing three times and inflicting the fatal blow, before running west across 23rd Street into the Old Salem General Hospital complex. He then drove north on
Medical Center Drive and turned right on D Street. Meanwhile, Francke, mortally wounded, made his way back to the North Porch of the Dome Building where he died from blood and oxygen loss after attempting to open the locked porch door by punching out a window.
The evidence to support this theory came chiefly from witnesses who have now recanted the testimony that inculpated Gable.
3 The defense moved to suppress certain of the statements Gable made to police, but the trial court denied the defense motions. Tr. at 7376-78, 7433-36. 4 In order for the jury to have convicted Gable of all counts, as it did, the jury had to accept this theory of the murder.
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Cappie Harden told the jury he received a call from Jodie Swearingen asking for a ride, and happened to drive into the Dome Building driveway just in time to see Gable lunge out of
Francke’s car and stab him. Tr. at 8063-70.5
Drug addict and Gable acquaintance Earl Childers told the jury that he saw Gable driving near the Dome Building between 6:30 and 7:30 p.m. on the night of the murder. He further testified that, months after the murder, Gable said he was at the Dome Building to burglarize cars. While he was in Francke’s unlocked car to steal a gun, Francke interrupted him so he stabbed Francke
“three to four times in his chest” in order to escape and avoid being returned to prison. Tr. at 7742-
73.
Mark Gesner, a drug dealer who sold methamphetamine to Gable, testified that on the night of the murder Gable entrusted him with a mysterious bag to dispose of, and, although Gesner did not look in the bag, he felt it and believed it contained clothing and a hard cylindrical object.
Gesner also said Gable confessed to him months after the murder. Tr. at 7971-8040.
Linda Perkins, the mother of Gable’s brother-in-law’s ex-girlfriend, testified that she overheard Gable make a veiled statement to Gable’s then-brother-in-law on the morning after the murder, which she later interpreted as a confession. Perkins told the jury that Gable threatened her after confessing. Tr. at 7946-69.6
5 Although chronologically, the Harden and Hunsaker’s accounts would logically be presented contemporaneously, Harden’s testimony, which he has now recanted, was presented at the end of trial, along with the testimony of the other “material” witnesses. 6 Gable’s brother-in-law, Randy Studer, did not testify at trial even though he had originally been designated one of the State’s “material” witnesses. Prior to trial, Studer recanted his statements that inculpated Gable. Studer’s signed affidavit confirming that Gable never confessed to him is presented with the other new evidence of innocence.
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Kevin Walker, another drug dealer who supplied Gable, told the jury that on the day after the murder, Gable admitted to Walker that he “stuck” a man at the Dome Building the previous night. Walker told the jury that Gable threatened him after confessing. Tr. at 8152-8205.
Drug addict Dan Walsh told the jury that, months after the murder, Gable twice confessed to him in private that he killed Francke during an interrupted car burglary. Tr. at 7742-73, 7928-
41.
Finally, Janyne Gable told the jury that Gable was not home on the night of the murder.
She confirmed that Gesner, Walker, Childers, and Walsh were Salem drug-crowd acquaintances of Gable’s. She testified that Gable picked her up from the OSH grounds at noon on the day of the murder, but left her at home sleeping and did not return until the following morning when he drove her to work. She told the jury that Gable became anxious upon seeing all of the police at
OSH that morning. She also testified that Gesner, along with Gable and Childers, had asked her to search her work computer for information on police informants in late 1988. (Neither Gesner nor Childers was asked about this incident.) Last, she testified that Gable had a habit of taking kitchen knives from their kitchen, including a six-inch, unserrated Chicago Cutlery brand utility kitchen knife that she gave him a month before the murder and never saw again. Tr. at 7682-7732.
The final piece of the State’s case was expert testimony that this missing kitchen knife was consistent with the murder weapon. The State purchased a replica of this knife and presented it to the jury at trial. Tr. at 8333-34.
2. Gable’s Defense.
Defense counsel’s intended central defense theory was one of third-party guilt, namely that
John Crouse, and not Frank Gable, committed the murder. Tr. at 8467-68. The State moved in
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limine to exclude defense evidence that others, including Crouse, committed the murder prior to a finding of relevance. Tr. at 5864-65, 8466.7 Outside the presence of the jury, the trial court held a hearing on whether Crouse’s testimony was relevant. The defense called Crouse himself to testify. Tr. at 9487-89. Crouse denied committing the murder and thereafter invoked his Fifth
Amendment rights on all subsequent questions. Id. The trial court ruled Crouse available because he had answered one question, but ruled his testimony irrelevant under State evidentiary rules because, during the in-court proffer, he denied committing the murder. Tr. at 9511. The defense thereafter made an offer of proof regarding evidence relating to Crouse. Tr. at 9512-15.
Although it could not present the third-party guilt theory, the defense did pursue the following avenues of attack. Through cross-examination of the State’s witnesses, the defense attempted to discredit the thoroughness of the crime scene investigation, suggesting that the crime scene was compromised, and that evidence might have been lost, for example, when dumpsters were emptied before being searched. E.g., Tr. at 5980, 6049-53, 6069, 6088, 6112, 6142-43, 6464.
The defense also presented the testimony of an expert who criticized the State’s crime scene investigation. Tr. at 9595-9653, 9665-68.
The defense also sought to undermine the State’s theory of when and where the attack occurred, in part, through testimony that numerous people in the Dome Building vicinity at 7:00 p.m. saw nothing suspicious, and also through the testimony of other people who saw suspicious
7 The State also moved to exclude evidence relating to two other suspects, Timothy Natividad and Samuel “Navarro” Cornejo (hereinafter “Navarro”). E.g., Tr. at 5864-65. The defense never attempted to present evidence relating to Natividad or Navarro. Section III.E discusses the evidence relating to Crouse, Natividad, and Navarro. Appendix A discusses some of the other suspects.
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things later in the evening. E.g., Tr. at 9059-9101, 9282-99, 9306-13, 9461-74. Rather than cross- examining the State’s witnesses who were present in and around the Dome Building on the night of the murder, the defense recalled most of them and called several others. Tr. at 8662-8747, 8877-
8941, 9163-9211. The defense elicited only a few additional facts when these witnesses were recalled, most notably from Hunsaker, and these facts are included in the discussion of Hunsaker’s testimony above.8
Next, the defense re-called some of the law enforcement witnesses who testified for the
State to talk about the duration and coercive nature of the certain of the numerous interrogations of Gable, namely, one particularly carefully planned long interrogation that took place in April
1990 as Gable was transported from Coos Bay to Salem for arraignment. E.g., Tr. at 8662-8747.
The defense sought to undermine the credibility of the State’s key witnesses against Gable, doing so primarily through collateral evidence. See generally Tr. at 8477-8661, 8751-8867.9 The defense also presented the testimony of teenage runaway Jodie Swearingen to undermine Harden’s testimony. Tr. at 9324-73. Originally, Swearingen was designated as a “material” witness for the
State, apparently testifying in the Grand Jury that she and Gable went to the Dome Building together to get “snitch papers” and corroborating Harden’s story that Harden went to the Dome
Building to pick her up.10 Swearingen recanted her Grand Jury testimony prior to trial and swore
8 The State had called one witness, Stanley Kudearoff, who had walked across the Dome Building parking circle shortly after 7:00 p.m. and had seen Francke’s car door open. Tr. at 6918. The defense re-called Kudearoff and also called four other men who had been with him and who had made similar observations. Tr. at 8943-9113. 9 This impeachment testimony corroborates the newly presented recantation evidence and is discussed in Section III.C. 10 The trial court denied the defense discovery of Grand Jury records. Resp. Ex. 210.
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at trial that this testimony was untrue. Nevertheless, during cross-examination, the State elicited the substance of Swearingen’s statements to the Grand Jury, which, under State evidentiary rules, could be construed as substantive evidence against Gable. Id.
Although the defense did not file an alibi notice, the defense presented witnesses in an attempt to establish that Gable was at the home of acquaintance Shelli Thomas around the time of the murder. Tr. at 8553-60, 9392-9416. This evidence of a partial alibi was easily refuted by the
State through cross-examination and in its rebuttal case with telephone records and other evidence that established that, although Gable likely was at Thomas’s house in late January 1989, that visit did not occur on the date of the murder. Tr. at 9800-9809.
Finally, the defense called an expert forensic pathologist, who testified that the murder weapon was likely a pocket knife and could be as short as 3-4 inches long (and less than 5-6 inches since it did not pierce both lungs) with either a serrated or unserrated blade. The expert testified that the Chicago Cutlery knife could not have been the murder weapon because of its blade thickness and because it did not have a hinge that would have accounted for a “half moon” shaped notch on the fatal wound. Tr. at 9656-9775.
The defense rested without Gable testifying. Tr. at 9791.
In closing, the State argued that the trial testimony of its witnesses could be believed because the witnesses, along with the physical evidence, corroborated each other, and their testimony all fit together like “pieces of a puzzle.” Tr. at 9832-34. The defense closing focused primarily on the physical evidence, arguing that the jury will never know what evidence was lost as a result of the flawed crime scene investigation. See generally Tr. at 9940-81. At the same time, the defense assured the jury that it should feel confident that no physical evidence pointed to
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Gable. The defense suggested that the jury should not believe that the murder was committed at
7:00 p.m. by a single assailant, and drew distinctions between the eyewitness testimony of Harden and Hunsaker. The defense told the jury that the defense’s own witness, Swearingen, along with the State’s “material” witnesses were “liars.” Tr. at 9970. The defense told the jury that the defense could not understand the State’s evidence relating to Gable’s tunnels, keys, and access to the Dome Building. Tr. at 9977 (“I never have quite understood” this evidence). Finally, the defense focused on the April 1990 interrogation of Gable, explaining that Gable’s “slippage” in response to questioning was reflective of “a young man that broke under pressure.” Tr. at 9981.
Thereafter, the jury convicted Gable on all counts. Tr. at 10072.
3. Penalty Phase.
The trial court held a separate penalty phase for the jury to determine whether or not to impose the death penalty. The jury was instructed under an amendment to the Oregon death penalty statute that was added after the crime. The two sentencing options available at the time of the crime were life with parole or death, but the amendment provided a previously-unavailable third option: life without parole. Resp. Ex. 363, at 9-10. Gable’s attorneys never informed him that he had a right to challenge the application of the amended statute to his case on ex post facto grounds, nor did the attorneys object to its application. The jury rejected the death penalty (by a vote of 2 for and 10 against), but found insufficient mitigating circumstances to warrant a sentence of ordinary life. As a result, Gable was sentenced under the new third option to a term of life in prison without any possibility for parole (a so-called “true life” sentence). Tr. at 10526.
B. Direct Appeal Proceedings.
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Gable appealed, claiming that the trial court erred in: (1) denying his motion to suppress certain of his statements to law enforcement in violation of the Constitution’s Fifth Amendment,
(2) excluding evidence of John Crouse’s confession under Oregon’s rules of evidence, and (3) applying the 1989 amendments to the Oregon death penalty statute in violation of the
Constitution’s Ex Post Facto Clause. Resp. Ex. 106. The Court of Appeals affirmed, finding
Gable never invoked his Fifth Amendment rights, declining to discuss the exclusion of the Crouse evidence, and declining to address the ex post facto issue because it was “unpreserved.” Resp. Ex.
111 (State v. Gable, 127 Or. App. 320, 873 P.2d 351 (1994)). Gable raised the same issues in a petition for review by the Oregon Supreme Court, Resp. Ex. 113, but review was denied. Resp.
Ex. 115 (State v. Gable, 319 Or. 274, 877 P.2d 1202 (1994) (Unis, J., would have granted review)).
C. Post-Conviction Trial-Level Proceedings.
Gable timely sought post-conviction relief. Resp. Ex. 155. Gable raised numerous claims that trial and appellate counsel provided ineffective assistance in violation of the Sixth and
Fourteenth Amendments.11 After trial and the submission of voluminous exhibits by both parties, see Resp. Exs. 174-342, the post-conviction court denied relief in a lengthy decision. Resp. Ex.
345.12
11 Post-conviction counsel demonstrated serious lack of familiarity with the record by raising numerous counter-factual claims, including ineffective assistance of counsel for failing to cross-examine witnesses such as Jodie Swearingen, Mike Keerins, John Crouse, and Kris Keerins. Resp. Ex. 155. Neither Mike Keerins, nor Kris Keerins, nor John Crouse testified at trial. Swearingen testified as a witness for the defense. There was no opportunity for cross-examination of any of these witnesses. 12 This 104-page decision largely summarized facts that are not in dispute here. Only those factual findings and conclusions of law by the post-conviction court that are relevant to the claims in this habeas corpus proceeding will be addressed herein. Where the post- conviction court was mistaken about evidence in the record that is relevant to this proceeding, it is noted below.
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During the post-conviction proceedings, Gable requested, and was eventually granted, permission to work with the State to have an outside laboratory conduct DNA testing of several items of physical evidence, including the victim’s clothing and fingernail scrapings. Resp. Ex.
171. At the time, the post-conviction court issued its decision denying relief, the DNA testing had not yet been completed. Subsequently, the laboratory recommended follow-up testing of two items
(an 8.25-inch hair and a sample from the victim’s suit coat). Resp. Exs. 346, 347. The State agreed to further testing of the suit coat, but opposed testing of the hair. Resp. Exs. 351, 352. The post- conviction court refused to authorize additional funds to pay the DNA laboratory’s invoice, which exceeded the amount the court authorized, and denied the defense’s motion to reopen the case, but ordered the State to arrange for testing of the hair at a cost not to exceed $1000. Resp. Exs. 350,
353, 354. The DNA laboratory thereafter refused to return the physical evidence until its invoice was paid.
In May 2001, while Gable’s post-conviction appeal was pending, DNA test results for the suit coat showed the DNA contributor was likely related to Francke. By February 2004, the hair was returned to the State and was available for testing. At that time, Gable’s appellate counsel requested remand for testing. The Oregon Court of Appeals denied the request, but allowed the issue to be raised in the pending appeal. Testing of the hair has never been completed, but the appellate issue is preserved for review.
D. Post-Conviction Appeal.
Gable appealed the denial of post-conviction relief, raising six issues. First, trial counsel provided ineffective assistance under the Sixth and Fourteenth Amendments to the United States
Constitution because counsel failed to: investigate and adduce evidence that another man, Tim
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Natividad, committed the murder; allow Gable to testify on his own behalf in violation of the Fifth and Fourteenth Amendments; and object on ex post facto grounds to the availability of a sentence of life imprisonment without the possibility of parole. Next, the trial court improperly denied
Gable a continuance and the right to be heard under the state constitution and the Due Process
Clause of the Fourteenth Amendment by failing to adequately respond to two letters he wrote.
Last, the post-conviction court should have awaited the results of DNA testing the court had authorized before issuing its decision denying relief. Resp. Ex. 357.
The Oregon Court of Appeals denied relief on all issues except the claim that counsel was ineffective regarding the ex post facto issue. Resp. Ex. 363 (Gable v. State, 203 Or. App. 710, 126
P.3d 739 (2006)). On that issue, the appellate court held that counsel was ineffective with regard to Gable’s ex post facto rights, and remanded for a determination of whether he was prejudiced.
Id. at 726. Before the case was remanded, Gable petitioned the Oregon Supreme Court for review of his appellate claims, exhausting each of his other appellate claims. Resp. Ex. 365. Review was denied, Resp. Ex. 366 (Gables [sic] v. State, 341 Or. 216, 140 P.3d 1133 (2006)), and the case was remanded to the post-conviction trial court for further proceedings.
E. Post-Conviction Proceedings on Remand.
On remand, the post-conviction trial court found that Gable had not established that he had been prejudiced by counsel’s failures with regard to his ex post facto rights. Resp. Ex. 371.
F. Second Post-Conviction Appeal.
Gable appealed the post-conviction court’s decision that he was not prejudiced by counsel’s failures with regard to his ex post facto rights. Resp. Ex. 373. The Oregon Court of
Appeals affirmed without opinion. CR 61, at Ex. B. The Oregon Supreme Court accepted review,
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but denied relief in a published opinion. Gable v. State, 353 Or. 750, 305 P.3d 85 (2013). One
Justice dissented, and would have granted relief. Gable petitioned the United States Supreme
Court for certiorari, which was denied. CR 61, at Exs. C, D.
G. Federal Habeas Corpus Proceedings.
Gable filed an Amended Petition seeking habeas corpus relief on numerous grounds. CR
61. Among the grounds for relief briefed herein, the only claims that have been exhausted are as follows. The claims relating to Gable’s illegal ex post facto sentence, including the claim under the Ex Post Facto Clause, which was presented on his direct appeal, and the claim that his counsel’s performance with regard to the ex post facto issue violated the Sixth Amendment, which was presented in his post-conviction proceedings, are exhausted. Additionally, the claims raised in the post-conviction appeal relating to, among other things, Gable’s right to testify, DNA testing, and counsel’s failures regarding third-party guilt evidence relating to Tim Natividad, are also exhausted.
Gable seeks review of the remainder of his claims, including his claim that the trial court should have admitted evidence of third-party guilt and his claims that counsel was deficient, through demonstration that it would be a “miscarriage of justice” under Schlup not to reach the merits of these constitutional violations. “Cause and prejudice” exists also under Martinez to excuse the procedural default with regard to the claim that counsel’s deficient performance was so prejudicial that it violated the Sixth Amendment.
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H. The Course Of The Investigation Supports Gable’s Innocence, And The Full Story Bolsters The Recantation Evidence.
From the outset, this case was a genuine mystery that became one of the most investigated and publicized cases in Oregon history. However, the investigation of the murder was not linear in that it did not start with a crime scene investigation and proceed logically toward a suspect who was then convicted. Rather, investigators cast a wide net. Numerous suspects with better motives and opportunity than Gable, and even suspects who confessed to the murder such as John Crouse, were briefly investigated and then bypassed for eight months until the investigation stalled. See generally Appx. A & Appx. A. Supp. (discussing leads and suspects other than Gable). Then, under intense criticism and media scrutiny, the investigators latched onto Gable based on unreliable tips and the claim that Gable allegedly failed two polygraphs, both of which were conducted under circumstances that rendered them scientifically unreliable. The scant information gleaned from the crime scene and the subsequent investigation that predated and led to the focus on Gable that commenced in September 1989, together with the media scrutiny that exerted extraordinary pressure on the investigators of this high-profile case, is described below.
1. Background.
In Spring 1987, newly elected Oregon Governor Neil Goldschmidt hired Francke, the former New Mexico Corrections Director, to head the ODOC. When he learned he got the job,
Francke wed his pregnant girlfriend, Bingta, and moved from New Mexico to Oregon, taking up residence in former Governor Vic Atiyeh’s mansion in Salem. Pet. Ex. C at 12-17, 82-84.
Goldschmidt tasked Francke with overseeing a major expansion and modernization of
Oregon’s prison system. Id. at 12-21. Francke centralized operational and administrative control of the prison system in the Office of the Director, housed in the Dome Building, wresting power
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from an “Old Guard” of prison wardens, who had for decades operated the prisons as independent fiefdoms. Id. In addition to friction caused by that restructuring, Francke clashed often with the
Legislature and even with Goldschmidt, usually over cost overruns as he tried to fulfill his mission, which included siting new prisons, adding prison beds, implementing risk-assessment measures, decreasing the number of minimum security escapes, and increasing the role of community supervision. Id.
Francke’s tenure in Oregon was also rife with personal turmoil. Appx. A at 15-21. His financial situation was dismal and his marriage to Bingta fell apart, unable to withstand financial stresses, Francke’s intense focus on his work, and the complexities of blending his family from his first marriage with his family from the new marriage. Id. On Wednesday, January 11, 1989,
Bingta left for Fresno, California, taking the couple’s infant son to begin a period of separation that Francke expected eventually would result in divorce. Id. Francke was seen out with another woman the day Bingta left town. Id. A week later, on January 18, 1989, at 12:42 a.m., Francke was found dead on a porch outside his office building.
The high-profile investigation began immediately after the discovery of his body. By 4:00 a.m., Governor Goldschmidt had been briefed at the Dome Building by the Oregon State Police,
Marion County District Attorney Dale Penn, and ODOC Assistant Director for Institutions Dick
Peterson. Tr. at 6312; Appx. A Supp. at 518. Processing of the crime scene by Oregon State
Police Criminalists Mike Hurley and James Pex, the autopsy by Dr. Larry Lewman, and searches of the Dome Building, and surrounding area began the following day. Tr. at 6246-49, 6491, 6374-
6476, 6170-72, 6176-87. Within days, the Oregon State Police formed a Task Force (“Francke
Task Force” or “Task Force”) comprised of State and local law enforcement, set up a “tip” line for
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the public to call with information, and, along with D.A. Penn, began holding regular press conferences.
The first newspaper reports came out on the day after Francke’s body was discovered, including this illustration of the crime scene in the Salem Statesman-Journal.
See Pet. Ex. D at 1-10.13 In the first few weeks, as many as thirty investigators sifted through leads, and interviewed 1400 people, including Dome Building employees, 800 OSH employees and patients, and people living nearby. Id. at 24, 29, 35.
2. Facts That Shaped The Early Investigation.
From the crime scene investigation, initial interviews, and the autopsy, police developed the following core set of facts. First, at about 6:35 p.m., ten minutes before Francke was last seen alive inside the Dome Building, ODOC Personnel Manager Jan Curry—who, due to her position, was familiar with most of the building’s employees—encountered an unknown man in the building
13 Petitioner’s Exhibit D contains articles from the Salem Statesman-Journal that support the statements in this section.
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near the front entrance. Her description of the unknown man led to the creation of a composite drawing that would much later be publicly released:
[E]arly to mid 30’s with short black, well-groomed hair, which is combed to one side in the front, and a black mustache. Approximately 5'10" - 5'11", olive, smooth complexion, [s]lim, well-dressed, nice looking, dark navy pin-striped suit with white shirt and tie.
Pet. Ex. H at 44.
Second, the day after the murder, OSH custodian Wayne Hunsaker reported seeing the interaction described above take place in the Dome Building parking lot around 7:00 p.m. on
January 17 that could have been the assault on Francke. Tr. at 6868-6902.
Third, a largely uninterrupted blood trail began about 95 feet from Francke’s car, on the sidewalk running in front of the Dome Building, and led up the stairs of the North Porch to where
Francke’s body lay in a pool of blood in front of the entry door. Tr. at 6499-6502.
Fourth, evidence appeared to show that Francke attempted to return to the Dome Building via the porch door, but that he died of blood loss before he was able to enter the building. Francke’s car keys and eyeglasses, with a bent left arm, were a few feet away from where his body was found, and his keys to the building remained in his pocket. Tr. at 6530-37.
Finally, several people reported seeing the front, driver’s side door to Francke’s vehicle open, and the interior dome light on, after 7:05 p.m. as the vehicle sat parked in a spot marked
“Corrections Director” in the Dome Building parking circle. Id. at 6594, 6674, 6929. By 7:15 p.m., two of Francke’s ODOC colleagues had noticed the vehicle and initiated a search that culminated in Francke’s body being found about five hours later. Id. at 6940-47, 6965-75.
Based on the foregoing facts, investigators believed the murder occurred in the parking lot around 7:00 p.m. and involved a single assailant. Investigators began searching for the suspect
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described by Hunsaker, although he had only been able to give a vague description—a man about
6 feet tall, 175 pounds, having short black or brown hair, and wearing a beige trench coat that came down to his knees. Id. at 6886-89. He did not recall the assailant wearing glasses. Id. at 6898.
Investigators also began searching for the “sharp-looking, well-dressed man” described by Curry, who investigators labeled a “person of interest” but not a suspect. Pet. Ex. D at 25-27, 60. As described below, a composite sketch of the man Curry observed was completed, but Hunsaker had not seen enough detail from which to draw a composite sketch.
None of the evidence at the crime scene was indicative of robbery (the State’s eventual trial theory) or of any other particular motive. Francke’s wallet, cash, credit cards, ring, wristwatch and ODOC pager were all found undisturbed on his body. Tr. at 6402-03. His briefcase was accounted for. Id. at 9570-74. His vehicle showed no signs of forced entry, disturbance, or theft, the stereo, car phone, and alarm system were all in order. Tr. at 5994, 6126, 6254-55, 6334-39,
6556, 6621-25, 6698. The exterior of the car was covered in an undisturbed film of road dirt, suggesting that no struggle took place in the immediate area of the car. Id. The Dome Building had been locked since 5:25 p.m. on January 17, and nothing inside appeared to be amiss. Id. at
6126. The State took only two blood samples, which both matched Francke’s blood type. Id. at
7914-25. Despite extensive efforts at fingerprinting (both at the scene and at his rural home), hair analysis, and footprint casting, the State apparently failed to link the physical evidence to anyone other than first responders, Francke’s family members, his coworkers, or himself. Id. at 6604-16,
7827-31, 8222-37, 8255-60. But see id. at 8237-38 (State’s fingerprint expert testified that some latent prints were matched through a database search of 3.2 million fingerprints). While searches
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of the surrounding area did generate several knives, investigators believed that none of those were the murder weapon. Id. at 7899-7901.
The autopsy also failed to provide any clues as to a motive or a suspect, and provided scant information about the murder weapon. Francke had been stabbed twice. The State’s Medical
Examiner believed the two wounds were caused by the same knife in rapid succession because of the angle and blade orientation. Id. at 6458-61. One stab went entirely through Francke’s left bicep and nicked the left side of his chest. Id. at 6411-17. The other, fatal stab went into his upper left chest area, penetrating his heart. Id. Additional cuts were found on the back left sleeve of
Francke’s overcoat, likely made by slashing motions other than the two blows that inflicted bodily harm. Id. at 8393. Francke also had three abrasions, a minor contusion, and a laceration around the orbital rim of his left eye. Id. at 6406-07, 6410-11. While other injuries existed on Francke’s body, for example to his right hand, shoulder and head, the State argued that these either resulted from Francke punching out a pane of glass in the North Porch door, or pre- or post-dated the assault. Tr. at 6407-11.
The stab wounds to Francke’s body and clothing provided little information with respect to the general class characteristics of the murder weapon, except that it had a single-edged blade.
Id. at 6411-17. The non-fatal stab wound to Francke’s arm went through seven business cards before nicking his chest, although only the very tip of the knife (likely less than .25 inches) actually penetrated the cards. Id. at 6415. The fatal stab wound to his chest passed through two index cards and a folded up piece of paper entitled “Performance Review.” Id. at 5888-89. The stab marks to the paper material showed the knife was sharp on one side and was flat or dull on the other.
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The stab track of the fatal wound was estimated to be roughly 5-7 inches, but the Medical
Examiner could not say how much of the blade penetrated the body. Id. at 6413-15. Therefore, it could have been a 5-7 inch knife that penetrated fully, or it could have been a longer knife that penetrated only partially.14 Similarly, because it was unknown how far the knife penetrated, the maximum width of the murder weapon could not be determined by the width of the wounds alone because their width would not account for any part of the blade that did not contact Francke.
Moreover, the minimum width of the murder weapon also could not be determined because stab wounds often produce both a stabbing and a cutting injury—i.e., the knife penetrates the skin with a stabbing motion, but also cuts into the skin as the knife enters and exits the body. Id. at 6414.
Thus, a stab wound may be wider than the blade that produced it. The largest entry wound (to
Francke’s bicep) measured 1.75 inches, and the smallest measured one inch (to his chest). Tr. at
6412-14. Thus, while the knife was likely not 1.75 inches wide due to potential cutting action and the existence of the second one-inch wound (assuming the same knife caused both wounds), it could not be determined how much smaller in width it was. Ultimately, the physical evidence provided little in terms of narrowing the class of potential murder weapons, other than establishing that one side of the blade was sharp and the other was flat.
3. The Media Regularly Reported On The Investigation.
This murder of a well-known public official on the doorstep of a government building generated immediate and regular media attention and public interest.15 The media would repeat
14 The defense expert opined that the wound was caused by a pocket knife as small as 3.5 inches. Tr. at 9678-88, 9719. 15 Ironically, a few weeks before Francke’s murder, another public servant who was working late, Oregon Department of Justice attorney David Kramer, was stabbed and critically wounded after he pursued and confronted a person he suspected had stolen a bicycle from outside a state
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the following basic facts in articles throughout 1989: Francke had been working late when he was attacked in the Dome Building parking lot at 7:00 p.m.; he was “stabbed in the heart,” but had other external and internal injuries; he was trying to return to the building when he collapsed on the North Porch; and police had “no major leads,” and “no weapon or significant evidence” had been recovered. Pet. Ex. D at 11; see also e.g., id. at 1, 16, 18, 19.
A week into the investigation, the Task Force released the description of the man Hunsaker saw, stating that investigators believed that Francke was killed by a dark-haired man seen running west from the Dome Building parking lot at about 7:00 p.m. Pet. Ex. D at 16-17. This description was often repeated in subsequent newspaper coverage about the case for months. E.g., id. at 29,
30, 56, 80. On January 25, the Statesman-Journal published an updated diagram of the Dome
Building that showed the direction of the assailant’s flight based on Hunsaker’s account. Id. at 17.
government building in downtown Salem. Kramer survived and could describe his attacker, but nevertheless was told by those investigating his case that it was the type of crime that often went unsolved. See generally Pet. Ex. H at 217-21, 230. The Salem Police Officer investigating the case explained: “I advised Kramer of the slim investigative leads that we were pursuing . . . , but pending the outcome of that lead, or others that developed, the case may not ever result in an arrest.” Id. at 221. Francke’s murder involved strikingly similar facts and an even greater paucity of leads.
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The Task Force stated that the two motives being investigated were “robbery and revenge.” Pet.
Ex. D at 12, 17. However, Michael Francke’s brothers, Patrick and Kevin, told media they did not suspect robbery and disclosed that the police had recovered all of Francke’s personal effects, including his wallet. Id. at 21, 24.
By April, the media reported that the investigation had cost more than $48,000, including more than $27,000 in overtime pay, $11,000 for lab tests, and $10,000 in travel including three trips to FBI headquarters and trips to New Mexico. Id. at 48. Oregon State Police investigators told the media that they conducted more than 1500 interviews. Pet. Ex. D at 36, 39, 45-46. A reward fund had been established and increases in the amount of the reward were regularly being published in the media. Id. at 30-31, 37-38, 40, 43-44, 52, 55-56. The fund was eventually
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administered by Bingta Francke’s brother. Pet. Ex. G at 32. By May 1989, the reward fund had swollen to $22,000 dollars. Pet. Ex. D at 56.
4. Investigative Leads And Other Suspects.
Early investigation revealed many potential leads and, as a result, the Task Force investigated a variety of individuals. Early suspects included many who could be placed at or near the Dome Building around the time of the murder, others who had monetary or revenge-based motives, and still others who confessed to the murder. Appendix A summarizes the investigation of some of these leads and suspects. Some leads related to Francke’s work within the New Mexico prison system and others to his work in Oregon. Id. at 9-15. Other leads related to his personal life, such as his failed marriage and the fact that his widow was the sole beneficiary of a $750,000 life insurance policy. Id. at 15-21. Still other leads involved persons to whom Francke had no apparent connection. Id. at 1-9. The investigation of these leads and suspects typically was very brief, and none of the information about these or any other suspects was mentioned at Gable’s trial.
The cursory nature of the investigation into the possible guilt of these other suspects, as well as, in some cases, the use of polygraphs with regard to these suspects, contrasts with the depth of investigation and the unconventional use of polygraph that took place once the investigation focused on Gable much later in 1989.
In April 1989, a leading suspect emerged when a prolific car thief named John Crouse—a man with a short fuse, a record of violence, and a history of truthfully confessing to the crimes he committed—repeatedly confessed to the murder of Michael Francke. Crouse explained that he stabbed Francke to get away after Francke interrupted him while he was burglarizing Francke’s car. E.g., Pet. Ex. H at 3-4. In addition to confessing to law enforcement, Crouse confessed to his
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mother, his brother, and his girlfriend. Crouse had a history as a car prowler and as a knife- wielding assailant, and his confessions dovetailed with Hunsaker’s testimony and matched some of the otherwise unexplained physical evidence. However, during Summer 1989, as the Task
Force made intermittent efforts to corroborate information about Crouse, he changed his story.
Specifically, Francke’s brother, Patrick, began communicating with Crouse directly, and, by mid-
June, Crouse told Francke’s brother that Francke was killed as part of a larger ODOC conspiracy.
Pet. Ex. D., at 57-59, 82. The Task Force’s focus on Crouse as a primary suspect waned after his story changed to inculpate ODOC, although the Task Force continued to look for connections between Crouse and the murder, including, later, for connections between Crouse and Gable, which were never established. Section III.E below details the evidence relating to Crouse, none of which was presented at trial, and also addresses two other suspects, Timothy “Rooster”
Natividad, and Samuel “Navarro” Cornejo, both of whom were the subjects of the State’s motion to exclude evidence of third-party guilt.
5. The Investigation Stalled; Media And Political Pressure Mounted.
By Summer 1989, the Francke murder investigation was at a standstill. Throughout the
Summer, the Task Force re-publicized the case, running a public service announcement that touted the “$22,000” “Francke Reward Fund,” and “actively” sought new leads while re-investigating old ones. Pet. Ex. H at 226-29. The Task Force retraced the steps it took in January, repeatedly re-canvassing the Dome Building and ODOC employees to see if they recognized the composite sketch drawn based on Curry’s observations of the “well-dressed man,” conducting new searches of the vicinity, re-submitting information to the Crime Lab, and searching Francke’s car again.
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E.g., Pet. Ex. H at 166-83, 205-08, 226-29; Pet. Ex. D at 60, 80; Appx. A Supp. at 266-68, 276,
294.
At the end of August, having uncovered no viable new leads, the Task Force publicly released for the first time in both New Mexico and Oregon three composite drawings, including the image of the “well-dressed man” and two previously un-released images, which had been created based on the observations of two witnesses in January 1989. The “News Release” that accompanied the drawings again mentioned the reward fund and stated that “2,300 persons have been interviewed by detectives.” Pet. Ex. C at 177A-B; Pet. Ex. D at 81-84.
Composite #1 (left) was a sketch of a man seen at 5:30 p.m. on January 17 in the Dome
Building circular parking lot by a Parole and Probation employee, who said the man appeared to follow him toward his car, which was parked near Francke’s car. Pet. Ex. H at 121-22. Composite
#2 (center) was drawn based on a woman’s description of a man in a pin-striped suit who asked her for directions to the Dome Building at 11:00 a.m. in the parking lot of the Old Salem General
Hospital west of the Dome Building. Id. at 231. When that woman saw all three of the drawings,
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however, she said that Composite #3 (right), which was based on Jan Curry’s observations, more closely resembled the man she saw. Id. at 48-49.16
The media responded to the release of all three composite drawings by publishing a mocking cartoon making fun of the number of potential suspects in the case, and by quoting
Crouse’s attorney as saying that the Task Force was “just fishing’” for any leads. Pet. Ex. D at 84;
Pet. Ex. C at 177E.
At the time the composites were released, the Task Force was shrinking. The District
Attorney had convened a Grand Jury to memorialize the investigation already conducted before the officers were repurposed. PCR Tr. at 391; Pet. Ex. D at 32, 36, 48, 81. At the same time, political and media pressure were mounting. Throughout Summer, the Task Force was criticized and there were calls for alternative investigations. The media was regularly reporting the Francke family’s criticism of the focus and pace of the Task Force investigation, and calling for the investigation of ODOC corruption and conspiracy allegations, as well as a resolution to the case; meanwhile the District Attorney was defending the investigation in the media. Pet. Ex. D at 64-
67, 70-72, 77-79, 80. By the end of Summer, the Legislature created a joint committee that began to hold hearings in September to investigate the ODOC and, ostensibly, any connection between corruption at the ODOC and Francke’s murder. Id. at 85-89. Thereafter, throughout Fall 1989 and into 1990, the media publicized the hearings held by the committee, which focused on
16 The post-conviction decision refers to “the composite drawing of the suspect being sought for the murder of Michael Francke.” Resp. Ex. 345, at 26. In fact, according to the Task Force, none of these drawings depicted a suspect in the case. Hunsaker had not seen enough detail for a sketch artist to do a drawing. No evidence about the drawings or the observations that produced them was presented at trial.
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allegations of corruption within ODOC. Pet. Ex. D at 102-03, 106-07, 113-14, 118-21, 123-27,
132-34, 136-52.
The Governor’s office was trying to manage the political fallout that Summer as well. An interoffice memorandum to Goldschmidt regarding the “Francke Investigation,” written by top legal aide Cory Streisinger on August 22, 1989, laid out how to handle the stalled criminal investigation in light of the criticism and scrutiny from the Francke family, the media, and the
Legislature. Pet. Ex. C at 177E-H. In the memo, Streisinger stated: “The murder investigation has come to a virtual dead end.” “[D.A.] Dale Penn’s current activities, which we’ve discussed
[presumably referring to the fact that a Grand Jury had been empaneled], are unlikely to produce anything new even if an indictment ultimately results.” Streisinger continued: “Regardless of lack of evidence, it remains possible that Mike Francke’s death was connected to wrongdoing in the
Corrections Department. So long as the possibility cannot be ruled out, it may deserve investigation.” Further: “The Francke family’s activities and the presence of [Oregonian columnist] Phil Stanford ensure that the issue will continue to receive attention by the press and public until some decisive step is taken to resolve it.” In early September, Goldschmidt announced the appointment of former Judge John Warden as a special investigator to look into possible corruption at the ODOC and to conduct a thorough agency review. Pet. Ex. D at 87-89. Warden’s three-month investigation was complete in early December 1989. Id. at 145-52.
These parallel investigations during Fall 1989 placed both the ODOC and the Oregon State
Police in the media spotlight. The Francke murder investigators found themselves being investigated. To add insult to injury, the day after Judge Warden’s investigation was announced, the Statesman-Journal reported that a law student, who also clerked for one of the Francke family
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attorneys, searched the area west of the Dome Building with a metal detector and found a ten-inch kitchen knife. Pet. Ex. D at 90-91. The student turned the knife over to the State Police, who told the media that it would be tested. Id. The District Attorney responded that the knife found was not the only knife found, and that more than twenty weapons have been seized in the investigation.
Id. at 92.
In early September 1989, Francke Task Force investigators retraced their steps yet again, recirculating the composite sketches and trying to revive the struggling investigation, but still without any notable progress. E.g., Pet. Ex. H at 139-63; Appx. A Supp. at 129-30.
6. The Pivot To Gable.
During the course of the investigation, the police sought and received hundreds of tips from the public, and interviewed more than two thousand people. Two of those tips referenced Frank
Gable. Neither provided any legitimate connection between Gable and the murder, nor did the
Task Force’s subsequent interviews of the sources of those tips, which, to the contrary, suggested the tips were meaningless.
a) Two Tips Mention Gable.
The first tip regarding Gable came in early May 1989 from a man who had previously run a boxing club in the penitentiary in which Gable had once participated. He related that a friend had told him that an inmate believed that Gable might have knowledge about the Francke murder.
Tr. at 7162-65; see also Pet. Ex. H at 80-81. The Task Force interviewed the inmate, who explained that he had received the following letter from Gable about four months before the murder. The text of the letter does nothing to support any suspicion.
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9-15-88 To sweet!! [smiley face] So are you surprised to hear from the “kid” or not?? Thought you would be. (smile) Anyway, I’m doing super. Things are fine as aged wine out here. I got married about a month ago now. work is going great also!!! busy as hell. I work at a lumber company here in Salem. I’ve been doing some mellow partying!! the kind that don’t get you into trouble!! ha! had enough of OSP that’s for sure!!! Anyway, put me in touch with someone that can get me into the prison on a boxing card things will be cool!!! I’m setting [sic] waiting for things now. Anyway here’s a couple pictures of me and my wife. over in Bend at the condo [sic] shape as always. Hey now [smiley face] good smoke & drink. That’s my parents vacation house in the winter we stay there all the time. Its live. Well, only time for a short line buddy. I think of you often. write me a line sometime. I told you I’d stay in touch didn’t I?? well now its your turn. It’s up to you. I don’t lose out on anything. So write if you want to or call collect once a week or so. 581-3812. I’m home most eves from 1:00 pm to about 9:00 pm I go to sleep at 9:00 pm. I go to work at 3:00 am so please don’t call to late ok. 6:00 is the best time. Anyway later on.
your friend, Frank
Pet. Ex. H at 243-46 (errors in original). Nonetheless, based on that letter, the inmate “conjugated” that Gable had come into some money and might have some information on the Francke homicide.
Id. at 80-81.
Within a day, the Task Force contacted Gable, who was in custody at the Marion County
Jail after his arrest for unauthorized use of his step-father’s vehicle. According to the police report,
Gable stated his innocence and lack of any knowledge related to the murder:
Gable stated in substance at that time that he had no knowledge of the Francke homicide and that his wife had used to work for the Oregon State Hospital, near the Dome Building. That on January 17, 1989, he believed that he was sleeping during the day and picked his wife up later in the afternoon. Then, on January 18, 1989, while taking his wife to work they noticed the Dome Building area was roped off. Gable continued that he did not know who killed Francke and would take a polygraph.
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Id.; see also Tr. at 7168-70, 7172, 7177.17 Although Gable had agreed to take a polygraph, the
Task Force undertook no further investigation of Gable at that time.
The same report notes that Janyne Gable had previously been interviewed by the Task
Force. Pet. Ex. H at 81. In fact, Janyne was interviewed, along with 800 other OSH employees, in the week after the murder when the Task Force canvassed the Dome Building area for leads. At that time, Janyne reported that she worked from 6:30 a.m. to 3:00 p.m. on January 17, and observed nothing unusual. Pet. Ex. E at 424.18
The release of the composite drawings to the public at the end of August brought in new
“tips,” including the second tip that referenced Gable. Specifically, two former inmates who were in an OSH treatment program reported to the Oregon State Police that an inmate named Guadalupe
Perez “looked exactly like” one of the composite drawings and had once “used a knife to cut a subject up during a robbery.” Pet. Ex. H at 137-38. During the meeting, the inmates mentioned that Gable, who they also knew from the treatment program, resembled a different composite except that, unlike that composite, Gable kept his hair much “neater.” Id.19
Thus, Gable became part of the case based on an irrelevant letter he wrote months before the crime and on his rough resemblance to a drawing of someone who was not, in the State’s view,
17 The trial testimony presented by the State diverged from the statements in the police reports, accordingly, citations to both the reports and the trial transcript are being provided. 18 Janyne’s time records reflect that she actually worked a half day on January 17, leaving at noon, rather than 3:00 p.m., which would have been her normal shift. Pet. Ex. E at 278. It appears that, in January 1989, Janyne was unable to remember the hours she had worked a week earlier. At trial, Janyne testified consistently with the time records. Tr. at 7727. 19 The Task Force later showed photo lineups that included Gable to the source of each of the composites. None identified him as the person he or she saw. Pet. Ex. H at 48-49, 121- 22. Nor did Gable’s parole officer identify any of the composites as Gable. Id. at 176.
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the killer. Nonetheless, in mid-September 1989, the Task Force followed up with Gable, who had agreed three months earlier to take a polygraph, and conducted two polygraphs of him. Tr. at
7247-48, 7254-56.
b) Gable Allegedly Failed Two Polygraphs That Suffered From Flaws That Rendered Their Results Unreliable.
On September 13 and 15, 1989, Oregon State Police polygraphers Dennis Fox and Fred
Ackom, respectively, polygraphed Gable on whether he was involved in the murder. Each concluded that Gable’s denial was deceptive. Pet. Ex. E at 3-18. However, both polygraphs suffered from flaws that rendered their results scientifically unreliable.
Psychologist David C. Raskin, Ph.D., a trained polygrapher and interrogator, who has conducted research on the validity of various polygraph techniques for more than four decades, analyzed the interrogations, including the use of polygraphs, of both Gable and the “material” witnesses in this case.20 According to Dr. Raskin, due to Gable’s mental and physical state, Gable was not a candidate for polygraph on either of the occasions when he was polygraphed and determined to be lying about his involvement in the murder. The results of those tests should not have been relied upon. Pet. Ex. B at 10-11.
At the time of the first polygraph, Gable was “recuperating from a series of fights the preceding weekend, wherein he suffered extensive bruising, possible broken ribs, a black eye, and had been using drugs and drinking heavily.” Id. at 11; accord Pet. Ex. E at 3-7. Moreover, Gable
20 Dr. Raskin’s qualifications are described in the first two pages of the Affidavit of David C. Raskin and in his curriculum vitae, which are attached hereto as Petitioner’s Exhibit B, at 1-2, 18-61. Dr. Raskin could not evaluate the accuracy of the scoring of the polygraph examinations in this case because the underlying charts were not available to him. Id. at 9. The trial court denied the defense discovery of these materials. Resp. Ex. 102 at Entry 247.
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told Fox that his parole officer told him he would be violated if he did not take the polygraph examination. Id.
Dr. Raskin explains: “This is an example of the coercion that was used to get suspects and witnesses to agree to a polygraph test, even though they were not physically suitable for a test.”
Pet. Ex. B at 10-11. Fox described Gable as “extremely anxious,” and noted that he expressed concern in the pre- and post-test interviews that he was being “railroaded” for something he did not do in order “that the Francke homicide could be cleared.” Pet. Ex. E at 3-7. Fox tested Gable despite the red flags, and concluded that Gable’s denial of involvement in the murder was deceptive. Id. Fox thereafter “confronted” Gable on his alleged deceptiveness. Id. Gable denied knowledge of or involvement in the murder and agreed to take a second test. Id.
Raskin notes that “the examiner [Fox] correctly declined to perform a retest because of the examiner’s ‘confrontation’ during the examination,” but contrasts Fox’s actions with those of
Ackom, who not only subsequently polygraphed Gable under similarly problematic circumstances, but also performed nearly every subsequent polygraph of the “material” witnesses over the next six months, and, in doing so “repeatedly violated this principle that was properly stated by
Detective Fox.” Pet. Ex. B at 10-11.
Due to his emotional state, Gable was also not a suitable candidate for polygraph when
Ackom examined him two days later. Id.; accord Pet. Ex. E at 8-18. Indeed, the Task Force was aware of ample evidence that Gable’s emotional state deteriorated after he was told he failed the first polygraph. Janyne told the Task Force that Gable was very upset that he had failed the polygraph, and that he quit his job, “walked around all day in his bathrobe,” talked about suicide, and said he feared that he would be wrongly accused and sent to the electric chair or “roast[ed].”
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E.g., Pet. Ex. E at 230-53. But the jury never learned of the effect that being told he failed a polygraph, the so-called the “Fourth Degree,” had upon Gable. Pet. Ex. B at 6-7. Gable told
Ackom: “[h]e got in fights [over the] weekend so he would get thrown in jail. Sometimes he feels safer in jail because people on the outside look down on him for being a con.” Pet. Ex. E at 8.
Despite that Gable was physically ailing and distraught about the first polygraph, Ackom tested him and concluded that his denial of involvement in the murder was deceptive without caveat. After he was told he failed the second test, Gable was “visibly shaking,” started to cry, and went into “a fetal position with his hands covering his face, crying and saying “I didn’t kill
Michael Francke and I don’t know why you don’t believe me.” Id. at 11; Resp. Ex. 292, at 255.21
Once the polygraphers concluded that Gable was being deceptive about his involvement, the Task Force and the media began to focus on him. Within days, the Task Force learned that his associates included Earl Childers, Mark Gesner, Randy Studer, Kevin Walker, and Dan Walsh,
21 The jury never heard anything about this or any of the more than 100 polygraph examinations that played such a significant role in the Task Force’s investigation. Thus, the State’s opening argument, Tr. at 5906, and Ackom’s trial testimony, Tr. at 7294, describe this statement by Gable to Ackom without providing as context that he was reacting to the polygraph results. As a result, the testimony suggests Gable’s response was indicative of guilt. In context, however, Gable’s response was just as indicative of Gable’s despair that the polygraph result was incorrect and that no one would believe him. Another example also came from the same ten-hour polygraph and interrogation by Ackom. Ackom asked Gable what he was thinking when asked about stabbing Francke, and Gable responded with questions: “[If] I was joking around, and told my wife I killed Michael Francke. If I did that, would it show that I was lying?”’ Pet. Ex. E at 11. At trial, Ackom testified about this exchange without mentioning that it took place during, and involved questions about, the polygraph, leaving the impression that when he asked for Gable’s thoughts about being questioned, Gable said he was thinking that he had joked to his wife about committing the murder and that it would make people in prison think he was a “big guy” if he had. Tr. at 7293. The jury never learned that Gable’s statements were reflective of him trying to understand how he might have failed the polygraph.
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and immediately conducted initial interviews of these associates. None implicated Gable in the
Francke murder. Pet. Ex. E at 19-27, 40-52, 152-55, 254-58, 264-67. All but Walsh readily implicated Gable in drug and other criminal activity, i.e., they were willing to “snitch” on Gable.
Id. Absent from the list of associates compiled during initial interviews were Jodie Swearingen,
Cappie “Shorty” Harden, and Michael Keerins, none of whom were associated with Gable in
January 1989. E.g., Resp. Ex. 301, at 164 (Keerins was not an associate of Gable).
By late September, the media reported that the Task Force finally had a suspect in several articles about Gable. Pet. Ex. D at 105-12, 116-17. The only evidence of Gable’s involvement at that time was the polygraph failures. Not a single witness had made any of the statements that would later be used at trial to convict him. There was no evidence of Gable’s motive nor that he had been at the Dome Building at the time of the murder. But the media added fuel to the fire.
The media reported that Gable failed a polygraph examination, that he had previously acted as a police informant, and that he had been charged with abusing his wife.22 The newspapers repeated negative information from Gable’s parole file and incorrectly reported that clothing seized from Gable was linked to Francke, although nothing of evidentiary value was recovered from the voluminous amounts of clothing seized from Gable. Information about the new suspect briefly overshadowed the steady stream of articles about the parallel investigations into ODOC.
Id.
22 D.A. Penn told the media that if Gable failed a polygraph on his knowledge of the killing, he is not alone and “a number of people who were asked to take a polygraph have had ‘inconsistencies and problems’ passing the test.” Pet. Ex. D at 109.
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The media attention soon led to Michael Keerins falsely implicating Gable, followed by
Linda Perkins, who also came forward after reading the media reports about Gable. Subsequent to those two witnesses coming forward, as discussed in the next section, a case was developed very slowly over the next six months by coercing or enticing reluctant members of the drug crowd, known and unknown to Gable, into implicating him.
III. EVIDENCE OF GABLE’S INNOCENCE SUPPORTS HABEAS RELIEF AND EXCUSES ANY PROCEDURAL DEFAULT.
A. Evidence of Actual Innocence May Form A Basis For Relief Or Excuse Procedural Default.
[C]oncern about the injustice that results from the conviction of an innocent person has long been at the core of our criminal justice system. That concern is reflected . . . in the ‘fundamental value determination of our society that it is far worse to convict an innocent man than to let a guilty man go free.’
Schlup, 513 U.S. at 325 (quoting In re Winship, 397 U.S. 358, 372 (1970) (Harlan, J., concurring)).
As alleged in Ground One of the Amended Petition, the evidence submitted to the Court demonstrates that Gable is factually and legally innocent. Herrera v. Collins, 506 U.S. 390 (1993).
Additionally, the evidence of innocence permits the Court a gateway through which to review
Gable’s procedurally defaulted claims. To excuse a procedural default, a petitioner may demonstrate a “fundamental miscarriage of justice.” Coleman v. Thompson, 501 U.S. 722, 750
(1991). A miscarriage of justice may be demonstrated by a showing of “actual innocence.”
Schlup, 513 U.S. at 316-17. In Schlup, the Supreme Court held that if a petitioner establishes a colorable claim of actual innocence, this functions as a “gateway” permitting a court to consider the merits of claims that would otherwise be procedurally barred. Id. at 316-17; see also Smith v.
Baldwin, 510 F.3d 1127, 1139-40 (9th Cir. 2007) (en banc); Carriger v. Stewart, 132 F.3d 463,
477-78 (9th Cir. 1997) (en banc). In House v. Bell, the Supreme Court reaffirmed the viability of
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an “actual innocence gateway” as an exception to the bar against federal review of procedurally defaulted claims. Importantly, the Court ruled that the principles of comity and finality “must yield to the imperative of correcting a fundamentally unjust incarceration.” 547 U.S. 518, 536
(2006) (internal quotation marks omitted) (quoting Murray v. Carrier, 477 U.S. 478, 495 (1986)).
The Ninth Circuit has concluded that a petitioner making a miscarriage of justice claim must present evidence of innocence strong enough “that a court cannot have confidence in the outcome of the trial unless the court is also satisfied that the trial was free of nonharmless constitutional error.” Carriger, 132 F.3d at 478 (quoting Schlup, 513 U.S. at 316) (emphasis in Carriger).
The Schlup actual innocence gateway is available whenever a petitioner can establish that, considering all available evidence, “it is more likely than not that no reasonable juror would have convicted him in light of the new evidence.” Schlup, 513 U.S. at 327; House, 547 U.S. at 536-37.
The evidence proffered need not provide “absolute certainty about the petitioner’s guilt or innocence.” House, 547 U.S. at 538; see Schlup, 513 U.S. at 313-15 (explaining that the gateway requirement is “procedural, rather than substantive,” and, therefore, is less onerous). “Under the gateway standard . . . , the newly presented evidence may indeed call into question the credibility of the witnesses presented at trial.” Schlup, 513 U.S. at 330.
The petitioner may “support his allegations of constitutional error with new reliable evidence—whether it be exculpatory scientific evidence, trustworthy eyewitness accounts, or critical physical evidence—that was not presented at trial.” Schlup, 513 U.S. at 324. Evidence proffered to demonstrate Schlup actual innocence may be newly presented or newly available.
Sistrunk v. Armenakis, 292 F.3d 669, 673 n.4 (9th Cir. 2002).
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Ultimately, the Schlup inquiry “requires a holistic judgment about all the evidence, including the evidence presented at trial, along with the newly presented and newly available evidence, and its likely effect on reasonable jurors applying the reasonable doubt standard.”
House, 547 U.S. at 538-39 (citation and internal quotation marks omitted) (explaining that the court “must make a probabilistic determination about what reasonable, properly instructed jurors would do.”); accord Schlup, 513 U.S. at 329. Thus, Gable need not prove who committed the murder of Michael Francke, but, rather, that, with the full story told, including the circumstantial case the State presented at trial and the evidence of innocence described below, no reasonable jury would have convicted him. If Gable satisfies this procedural burden, he is entitled to have all of his claims heard on the merits, regardless of any default.
Gable’s innocence is demonstrated both by evidence available but not presented at trial as well as newly presented evidence developed by the Office of the Federal Public Defender. This section first recites the case that was never presented at trial, including the facts that other suspects confessed to the murder and how, despite Gable’s repeated protestations of innocence, the State’s investigation came to focus on Gable eight months after the murder. Thereafter, the newly presented recantation and scientific evidence that support Gable’s innocence is described. Third, the remaining evidence the State marshalled against Gable at trial is addressed. Fourth, evidence of third-party guilt is discussed. Based on this evidence of innocence, Gable is entitled to relief and to have his claims reviewed because he is legally and factually innocent, and, if presented with the totality of this evidence, no reasonable jury would convict him.23
23 In the alternative, Gable is entitled to an evidentiary hearing to demonstrate that the failure to address all of his claims will constitute a miscarriage of justice. See Jaramillo v.
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B. Newly Available Recantation Evidence Supports A Finding Of Innocence.
This section discusses the newly presented recantations of seven of the State’s original eight “material” witnesses, along with the retractions of other witnesses who the State chose not to call to testify at trial, in tandem with the newly presented scientific evidence regarding the
State’s abuse of polygraph examinations. Together, this material shows that the method by which the State investigated Gable was highly likely to, and did, result in the fabrication of the testimony that ultimately served as the basis for the conviction he now challenges.
1. Michael Keerins, The First To Implicate Gable, Now Admits That He Lied.
In late September 1989, Michael Keerins became the first witness to implicate Gable. The
Task Force had received information that Keerins and his brother (Kris) had been involved in the murder at the same time as the media first reported that Gable was a suspect and had acted as a police informant. Pet. Ex. E at 65-94; see also Appx. A at 4 (discussing investigation of Michael
Keerins’ brother, Kris, as a person of interest to the investigation in January and February 1989); see generally Resp. Exs. 299-300. When interviewed in September, Keerins told the Task Force
Stewart, 340 F.3d 877, 883 (9th Cir. 2003) (“A remand for an evidentiary hearing would allow the parties to develop the factual record . . . . The district court is in the best position to observe the witnesses . . . together with the other evidence available, and to make the ultimate credibility determinations.”). Moreover, as alleged in Ground Twenty (20) of the Amended Petition, the post-conviction trial court violated Gable’s constitutional rights when it concluded that DNA testing was appropriate, but then failed to authorize sufficient funds for testing, which led to delays in the completion of necessary tests, such that the Court issued its ruling prior to the completion of testing, and then refused to re-open the judgment so that testing could be completed. CR 61. In the interest of justice and to complete the record in this matter, and particularly if the Court disagrees that the current record demonstrates Gable’s innocence, this Court should direct the State to release to the Federal Public Defender Office evidence in its possession that is suitable for DNA testing.
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that Gable had made a jailhouse confession to him when they had been incarcerated together in
May 1989. But Keerins had previously been interviewed by the Task Force in May just after Gable supposedly confessed to him, and he had not implicated Gable at that time. Resp. Ex. 299, at 24-
25. In exchange for his testimony against Gable, Keerins negotiated a transfer back to Oregon from the out-of-state prison where he was housed. Pet. Ex. E at 91, 315; accord Pet. Ex. A at 98;
Pet. Ex. D at 135.
In an affidavit presented for the first time in this proceeding, Keerins now admits he lied, making up the jailhouse confession in order to deflect suspicion from his family, for personal gain, and because he had learned that Gable was a “snitch for Keizer P.D.” Pet. Ex. A at 97-99. (“I told the Oregon State Police and the Grand Jury that eventually indicted Frank Gable for Mr. Francke’s murder that Gable confessed to me while we were housed together at the Marion County Jail in
1989. This was untrue.”). Frank Gable never confessed to Keerins. Id. Contemporaneous police reports also support that Keerins lied to deflect suspicion and for personal gain. See e.g., Pet. Ex.
E at 91, 315; Resp. Ex. 299, at 24-25, 89-92.
Although Keerins was ultimately not called as a trial witness by the State, his statements implicating Gable had a snowball effect. As discussed below, once Oregonian columnist Phil
Stanford reported Keerins’ false account, it led directly to Linda Perkins coming forward. Perkins would be the second witness to implicate Gable, and, unlike Keerins, she did eventually testify for the State at Gable’s trial.24
24 It is unclear why, after designating Keerins as a “material” witness, the State chose not to call him at trial. However, numerous defense witnesses could have testified that he previously admitted fabricating the Gable confession. See, e.g., Resp. Ex. 293, at 2, 369-79, 389; Resp. Ex. 294, at 110-16, 148-51, Resp. Ex. 300, at 431, 622-26; Pet. Ex. A at 54
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During the six months between these initial interviews and March of 1990, the Task Force pursued additional information from the remainder of the individuals who would become the
State’s “material” witnesses. Facing the pressure of new charges, allegations of their involvement in the murder, and repeated interrogations and polygraph examinations, each eventually implicated
Gable in the Francke murder. In most cases, once the Task Force came to believe that these individuals had information relevant to the murder, police engaged in an interrogation pattern that involved: (1) polygraphing, (2) confrontation by the polygrapher with purported polygraph results showing the witness lied, followed by (3) often-lengthy interrogation by other investigators.
Through repetition of this process, often numerous times over the course of one or several days, the witnesses’ stories changed incrementally. The witnesses came to understand that the interrogation process would not end until they told the Task Force what they believed the officers wanted to hear. Barriers to implicating Gable were lowered among the “drug crowd” and jailhouse witnesses by the fact many learned that Gable had acted as an informant. Even after the witnesses eventually changed their stories and implicated Gable, it often took several more polygraph- confront-interrogate sessions before the witness’s initial statement implicating Gable morphed into the very different statement that would become their trial testimony. Now, Childers, Harden,
Keerins, Studer, Swearingen, Walker, and Walsh have all recanted their statements implicating
Gable.25 Below is a discussion of the interrogation practices employed by the Task Force.
(Keerins told Walker prior to trial that he was lying). In fact, even a potential juror admitted during voir dire that Keerins had told him that Gable was not guilty. Tr. at 3774-77. 25 As discussed below, Janyne Gable has also provided an affidavit that is newly submitted in this proceeding. Pet. Ex. A at 2-17.
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Thereafter, the subsequent sections place each of the recantations into their appropriate context and explain why each recantation is corroborated and reliable.
2. Expert Scientific Evidence Shows The Interrogation Methods Used By The Task Force Were Highly Likely To Produce False Testimony.
Dr. Raskin analyzed the interrogations of the material witnesses, concluding that the Task
Force’s concerted use during this six-month period of “guilt-presumptive” interrogation practices, along with its improper use of polygraphs, was highly likely to—and did—produce false testimony, much of which has now been recanted. Pet. Ex. B at 5-6. Dr. Raskin is trained in the most famous of the techniques, the Reid Method, which was employed by the Task Force. Id. at
1; see generally United States v. Preston, 751 F.3d 1008, 1023-28 (9th Cir. 2014) (discussing the
Reid Method). Such techniques were designed to use psychological coercion to influence the cost- benefit analysis being undertaken by a person being interrogated. Pet. Ex. B at 5-6. The interrogation techniques apply stress and pressure to the person being interrogated in order “to weaken the [person]’s resistance [to confession] by increasing the anxiety associated with denial and reducing the anxiety associated with confession.” Id. at 5.26 Such inherently “[c]oercive interrogation techniques increase the likelihood of eliciting false information from a subject.” Id.
Indeed, the use of psychologically coercive interrogation methods is a leading cause of false
26 See generally Richard A. Leo & Richard J. Ofshe, The Social Psychology Of Police Interrogation: The Theory And Classification Of True And False Confessions, 16 Stud. L. Pol. & Soc’y 189, 189-251 (1997); Richard J. Ofshe & Richard A. Leo, The Decision to Confess Falsely: Rational Choice and Irrational Action, 74 Denv. U. L. Rev. 979, 979-1122 (1997).
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confessions. Id.27 The same processes can also be expected to produce false testimony by incentivized witnesses. Pet. Ex. B at 8.
These techniques commonly include tactics that were employed by the Task Force during the interrogations of the “material” witnesses, such as prolonged interrogation, wearing the subject down, making the subject feel powerless, and “communicating that resistance to confession is futile.” Id. This may be accomplished through repeated accusations and attacks on any denials of guilt, lies about non-existent evidence, or convincing the person that guilt has already been conclusively established. Id. Interrogators may maximize or minimize the seriousness of the offense, make threats, and offer benefits. Id. The benefit may be as simple as putting an end to the interrogation, avoiding being charged with a potential crime, a promised reduction in the charges the person already faces, or some other form of leniency. Id. The inherent stressfulness of the interrogation may further be enhanced either by the interrogator’s style or the vulnerability of the suspect to pressure. Id. at 6-7. Dr. Raskin explains that “posttest ‘failure’ feedback” from a polygraph—which has been coined the ‘Fourth Degree’—also may be a powerful and dangerous tool of psychological coercion that “is often used to pressure suspects and can prompt false confessions.” Id.
Two other potential dangers of the “guilt presumptive” process lurk and likely skewed the investigation of Gable by the Task Force. Id. at 7. The first of these twin dangers is that investigators may suffer from cognitive or confirmation bias, i.e., “tunnel vision.” Id. Once
27 Richard A. Leo, False Confessions: Causes, Consequences, and Implications, 37 J. Am. Psychiatry L. Online 332, 333-37 (2009), http://www.jaapl.org/content/37/3/332.full.pdf+html (use of psychologically coercive interrogation methods is a leading cause of false confessions).
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investigators form a belief about what happened, they tend to focus on facts that confirm that preconceived idea and, without realizing it, discount evidence that does not fit that prior belief. Id. at 7 & n.10.28 The second danger, inadvertent contamination error, is also a common side effect of the process that occurs “through repeated interrogation, taking the subject to the crime scene, asking leading questions, inadvertently giving cues when a subject hits upon a correct answer, correcting the subject, or mistakenly stating non-public facts.” Id. at 7.
As Dr. Raskin explains: “False confession studies demonstrate that innocent people falsely implicate themselves in serious crimes despite concerns of self-preservation. The same risk factors that produce false confessions can also be expected to result in subjects falsely implicating another person, particularly where benefits to the subject will inure, as barriers to implicating someone else are considerably lower than barriers to implicating oneself.” Id. at 8. Numerous witnesses faced with a choice between themselves or Gable, chose to falsely implicate Gable in order to avoid penalties or to receive benefits, or, in most cases, both.
3. The State’s Eyewitnesses No Longer Link Gable To The Murder.
The intertwined testimony of Jodie Swearingen and Cappie “Shorty” Harden was the lynchpin to the State’s case. In affidavits presented in this proceeding, Harden and Swearingen both recant their statements implicating Gable, and now attest, as Swearingen has maintained for
28 A book examining the record in the criminal cases that underlie the first 250 DNA exonerations provides a compelling account of how error crept into these cases through, for example, compelling but false confessions, eyewitness mis-identifications, false testimony by incentivized witnesses, and over-reliance on weak scientific evidence. See generally Brandon L. Garrett, Convicting The Innocent (2011). A documentary of The Confessions of four young men, the “Norfolk Four,” to a brutal murder they did not commit, also addresses the phenomenon of false confessions. The Confessions (PBS Frontline television broadcast Nov. 9, 2010), available at http://www.pbs.org/wgbh/pages/frontline/the-confessions/.
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more than twenty-five years, that neither witnessed Gable kill Francke. These affidavits are contained in Petitioner’s Exhibit A, at pages 19, and 25-27. In fact, neither Harden nor Swearingen even met Gable until after the murder. Id. at 19, 25; Pet. Ex. E at 54.
Through their mutually consistent recantations, Harden and Swearingen both admit that they falsely implicated Gable in response to police pressure. Pet. Ex. A at 19, 21-27. Specifically, after dozens of interrogations and more than thirty polygraphs, the pair apparently told the Grand
Jury that indicted Gable that they witnessed Gable murder Francke after Swearingen and Gable had gone to the Dome Building together to obtain something Swearingen called “snitch papers.”
Swearingen left twice to call Harden from a payphone for a ride from OSH. Harden “just happened” to arrive at the Dome Building parking circle in time to see Francke come out of the
Dome Building yelling at Gable, who was inside Francke’s car, and to see Gable respond by stabbing Francke one time in the chest as he came out of the car. As Swearingen jumped in
Harden’s Ford Mustang, Harden hot-wired his car and sped off, seeing nothing else of the attack on Francke. See generally Tr. at 8063-76.
Swearingen recanted her testimony prior to trial, telling the Task Force that she had not witnessed the murder. But Harden remained the State’s key eyewitness and testified to the above story. The defense called Swearingen to testify, and, through cross-examination, the State was able to bring out the story she told the Grand Jury, thereby corroborating Harden’s testimony. See generally Tr. at 9324-73. Even though the pair’s final story to the Grand Jury had suffered from inconsistencies, these nuances were glossed over at trial. Harden now confirms that his improbable and damaging trial testimony was “untrue.” Pet. Ex. A at 19.
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Swearingen maintains that her Grand Jury testimony falsely implicated Gable in an attempt to corroborate the lies Harden told. Pet. Ex. A at 22-23. A complex set of factors led Swearingen to falsely implicate Gable, including her immaturity and use of methamphetamine, the fact that
Gable had acted as a police informant, her desire to protect Timothy Natividad, a friend whom she believed had been involved in the murder, and a series of interrogations and polygraphs that caused her to fear that she would be imprisoned for crimes relating to the murder if she did not tell the police what they “wanted to hear.” Id. at 22-26.
The pattern of interrogation to which the Task Force subjected both Swearingen and
Harden bolsters their recantations, particularly when viewed in light of the scientific evidence on the effect of such interrogations. Swearingen, then a seventeen-year-old methamphetamine- addicted runaway living in juvenile detention in Salem, came to the attention of the Task Force when they scoured Salem looking for Gable associates after he failed the polygraphs. The Task
Force confirmed that her probation officer had put “a warrant out” for Swearingen’s arrest so she could be interviewed about her knowledge of Gable. Pet. Ex. E at 432. Swearingen initially told police that she met Gable in July 1989 and recalled being at a soccer field with Gable and Doug
Scritchfield where Gable was throwing a knife at the ground and saying he should have known better. Pet. Ex. E at 202-07. The Task Force interviewed Swearingen again the next day, accusing her of withholding information. She then told them Gable had confessed to the murder that day at the soccer field. Id.29
29 Later, when Swearingen’s story morphed into her having gone with Gable to the Dome Building and witnessed the murder, it made no sense for Gable to have later confessed to her. Thus, the soccer field “confession” instead became the soccer field “threat,” where Gable impliedly threatened Swearingen not to divulge his crime. Pet. Ex. E at 212-19.
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The Task Force wanted to polygraph Swearingen immediately, but she went on the run.
When she was arrested a month later in October, she told a new story about being with Gable in a soccer field just before the murder. Swearingen thereafter told different stories each time she was interviewed. Id. at 208-29. Initially, rather than allow her to be polygraphed by the Oregon State
Police, Swearingen’s family hired a private attorney, who had her polygraphed by private polygrapher Ken Simmons in early November. Simmons concluded Swearingen was a poor test subject and deemed the test results “inconclusive.” Id. at 357.30 Those results were shared with the Task Force, and Ackom subsequently polygraphed Swearingen twice (on a day she was ailing physically), and concluded that Swearingen was truthful in saying she had seen Gable murder
Francke. Pet. Ex. E at 356.
Between January 16 and 19, 1990, Swearingen was polygraphed nine times by Ackom and repeatedly interrogated. Pet. Ex. B at 12. Raskin explains that she was eventually “confronted” by her examiner, Ackom, who told her that she was lying and, furthermore: “[Ackom] ‘knew’ the truth about certain facts—such as when and how she arrived in Salem on the day of the murder and that she was at the Dome Building. These ‘known’ facts appear to have resulted from Ackom’s reliance on flawed polygraphs”:
First, Ackom stated that an earlier “confirmatory [polygraph] test showed that the subject [Swearingen] was, in fact, an eye witness to the murder.” Even putting aside that the test was invalid, it is unethical for an examiner to state that a confirmatory polygraph test establishes a fact. Second, Ackom’s belief in how and when Swearingen arrived in Salem were based on two Peak of Tension tests that were used as if they were so-called “silver bullets” that could establish the truth of collateral details. No competent examiner would rely on the accuracy of such tests.
30 The Task Force thereafter asked Gable about Swearingen, and, although he did not recognize her name, he identified her by a photo the Task Force showed him, and said that he had met Jodie around July 1989 through Doug Scritchfield. Resp. Ex. 304, at 13-14.
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Despite her earlier statements to the contrary, Swearingen eventually adopted Ackom’s version of these events.
Id. As she states in her recantation, it was apparent to Swearingen in the first two interrogations that the police “had already made up their minds” that she was involved, and they were not going to believe anything that did not confirm their preconceived beliefs. Pet. Ex. A at 22-23. During numerous interrogations, polygraph examinations, and trips to the crime scene, Swearingen learned from the Oregon State Police the facts to which she testified at the Grand Jury. Id. For example, during the nearly two dozen polygraph tests she was given, she discerned what the police
“wanted to hear” because she “would tell them the truth and they would say [she] was lying.” Id.
“I told them what they wanted to hear, and they said that I was telling the truth when in fact it was a lie.” Id. This occurred with several important facts “they were excited to hear about.” Id.31
In all, Swearingen was given 23 polygraphs in 12 sessions, and was “administered multiple polygraphs on at least 7 different days.” Pet. Ex. B at 12. On numerous occasions, she was
“confronted” with supposed deceptive responses and changed her story to conform to the supposed result of the polygraph. Id. Swearingen’s interrogations contained numerous hallmarks of coercive interrogation techniques. Pet. Ex. A at 22-27; see also Resp. Ex. 293, at 253-54 (Jodie
“felt that they wouldn’t believe her if she told the truth because of the differences of the other witnesses and the fact that the cops wanted so much for her and Gable to be involved.”) (“Jodie said that she had lie[d] during the [polygraph] tests but she thinks she passed anyway.”). She faced threats of new charges and promises of immunity. Pet. Ex. A at 22-27. She felt intimidated by the police. She was subjected to lengthy interrogations from early in the morning until late into
31 Several other witnesses gave similar accounts of being told they were lying when they were telling the truth. E.g., Pet. Ex. A at 37, 46, 52; Pet. Ex. F at 1-4.
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the night. Id. She was polygraphed numerous times per day. Id. She was so stressed that she spit up blood. Id. One officer told her that his job was on the line and “pointed his finger at [her] and said if this next test doesn’t come out right I’ll flush you down the toilet like a fucking turd.” Id.
With regard to the number of times Swearingen was polygraphed, Dr. Raskin states: “I have never seen this many tests administered to one person in the 43 years I have been working in this field.” Pet. Ex. B at 15. Even putting aside that the testing protocols used were invalid, as Dr.
Raskin explains, the pattern of interrogation and confrontation and sheer number of tests would have produced flawed polygraph results for several reasons. Id. at 5. Swearingen undoubtedly perceived that her examiner was an adversary (and not objective), and this increased the likelihood that Swearingen would make statements to satisfy her interrogators. Id. “The more a person is
[polygraph] tested, the less reliable are the results of the repeated testing.” Id.
According to Dr. Raskin, the later polygraphs and interviews of Swearingen appear “to have been directed at conforming the details of her statements to match those being elicited from
Cappie Harden.” Id. at 12. Notably, when he was first interviewed in November 1989, Harden denied any knowledge of the murder and had said he did not even know Gable at the time of the murder. Id. at 13; Pet. Ex. E at 53-56. However, in January 1990 after Swearingen told the Task
Force that Harden had driven her and Gable to the Dome Building, Harden was arrested on two separate charges and transported immediately to the Task Force headquarters to be interrogated about his involvement in the murder. Pet. Ex. B at 13; Pet. Ex. E at 57-62. In response to polygraph results that supposedly showed he was involved, Harden changed his story and implicated Gable.
Specifically, “Harden was polygraphed by Ackom and then confronted about supposed deception regarding Harden’s own involvement in the murder . . . . Harden at that point began crying, stated
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that ‘you’re really scaring me,’ and then implicated Gable.” Pet. Ex. B at 13; Pet. Ex. E at 299-
304.
Harden minimized his own involvement, however. As Raskin notes, “[c]ontrary to
Swearingen’s statements to police at that time, however, Harden claimed he had not driven Gable to the scene but was later called there by Swearingen and was merely an eyewitness to the crime.”
Id. After she was polygraphed two more times, Swearingen adopted this version of events. Id.
Through seven subsequent polygraph examinations in six sessions, Harden’s denial of even knowing Gable at the time of the murder was transformed, through several iterations, to his trial testimony that he knew Gable and, by happenstance, saw him commit the murder. Pet. Ex. E at
63-64.
a) The Recantations Are Supported By The Substance Of Harden And Swearingen’s Statements Throughout The Interrogations.
The truth of Harden and Swearingen’s current statements, and the falsity of Harden’s trial testimony (and Swearingen’s Grand Jury testimony), is demonstrated not only by the problematic process that produced the false testimony, but also by the substance of the statements made throughout the interrogations. Once each decided to implicate Gable, the only thing they were consistent on is that each said they witnessed Gable stab Francke at the Dome Building. Otherwise,
Harden and Swearingen’s statements did not match. Together, they told the Task Force at least nine different stories between December 1989 and March 1990 about how they arrived at the Dome
Building: together, separate, from the Benders’ house, from Harden’s house, on foot, in Gable’s vehicle, in Harden’s vehicle, Gable drove Swearingen, Harden drove Swearingen and Gable,
Harden only came after Swearingen called, Swearingen said she called once, Harden said she called twice. E.g., Pet. Ex. E at 57-64, 212-19, 301-04, 370-74, 381-89, 435-36. Likewise, they
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told conflicting stories about where they were when they witnessed the assault, with Swearingen vacillating between being near a tree in front of the Dome Building and in Harden’s car, and
Harden saying they were together in his car. Id. at 60-64, 213, 221, 226. Even once they agreed they both viewed the assault from inside Harden’s car, the pair still gave inconsistent accounts of their respective vantage points within the car as well as the direction via which they left the Dome
Building parking lot. Id. at 60-64, 213, 221, 226. Like other material witnesses, the pair repeatedly contradicted their own prior statements, for example, Harden initially told the Task Force that
Gable work “dark sweats,” or a blue or black sweatshirt, but eventually told police he wore a dark- colored, knee-length trenchcoat and gloves. Id. at 54.
Even in the police reports just prior to their Grand Jury testimony, some critical discrepancies appear not to have been resolved. For example, Swearingen said Harden’s car faced north and she saw the assault through the passenger’s side window, while Harden claimed that his car faced south and he watched the assault through the driver’s side window. The police reports reflecting each of their statements on how the assault occurred differ as well. Compare Pet. Ex. E at 385-89 (Swearingen said Gable grabbed Francke from behind), with id. at 57-62 (Harden said
Gable lunged out of Francke’s car as Francke approached). Throughout the interrogations and polygraphs, their stories slowly became more aligned. But even when they finally agreed on a set of facts, such as both being in Harden’s car at the time of the assault, their stories remained inconsistent because they disagreed on the direction the vehicle was facing and, as a result, which direction they drove to leave. Compare id. at 212-19 (driving away with Harden via the west driveway to 23rd Street), with id. at 57-62 (driving away with Swearingen via the south driveway onto Center Street). The Task Force allowed Swearingen and Harden to meet together before their
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Grand Jury testimony in between preparation sessions with the District Attorney. Tr. at 5934,
9330-31 (at this meeting, Swearingen testified: “we mainly just got our stories straight”). Whether these contradictions were resolved before Swearingen and Harden testified in the Grand Jury is unknown because the defense never received access to either witness’s Grand Jury testimony.
Resp. Exs. 204, 210.
Ultimately, however, despite full willingness to say in January-March 1990 that they were eyewitnesses who could implicate Gable in the murder, Swearingen and Harden could not provide a consistent account of details that should have been simple to recall. The inability of Swearingen and Harden to provide a consistent narrative is best explained by a simple conclusion: they were not eyewitnesses to the crime, as they both now swear. Both the substance of their early statements to the Task Force and the process of interrogation and polygraphs they endured, with incremental, but inconsistent, changes in their stories, strongly support the veracity of Harden and Swearingen’s recantations.
b) There Are Additional Reasons To Disbelieve Harden’s Now- Recanted Trial Testimony.
There are still more reasons to disbelieve Harden’s trial testimony. Significant trial evidence undermined the credibility of Harden’s testimony. Several defense witnesses testified that Harden admitted to falsifying his statements implicating Gable in exchange for benefits in cases pending against him or for reward money and notoriety, and that Harden has a reputation for untruthfulness. E.g., Tr. at 8543-50, 8563-66, 8582-85, 8594-96, 8613-18. For example, a police officer overheard Harden say: “I’m out of here as soon as I hang a murder rap on Gable.” Id. at
8543-47. The remainder of these witnesses were inmates who had been incarcerated with Harden.
Harden told one inmate that he was only doing what the State told him to do because his “ass [was]
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on the line,” and he stood to make money on the deal, even though he did not know who killed
Francke. Tr. at 8566. Another witness testified that Harden and Michael Keerins were both telling others they would get cash for testifying, talking about “book rights,” and “calling themselves the million dollar baby.” Id. at 8864-65.32 Harden told yet another witness that he was the State’s
“Million Dollar Baby” and was facing charges in five or six cases so he had to help the State on the Francke case. Id. at 8616. Harden told another witness that he was inculpating Gable before
Gable told on him, that he was the State’s “Million Dollar Baby,” and that he would receive money for inculpating Gable. Tr. at 8583-84. Other inmates testified about Harden telling them he repeatedly told the police one story, then, after he failed a polygraph, told a new story. Id. at 8613-
18, 8849-51.
Moreover, Harden’s testimony was inconsistent with the testimony of Wayne Hunsaker, who appeared to be an objective, unbiased witness. Harden said he heard Francke yell, id. at 8070, while Hunsaker, who would have been closer to Francke, did not. After initially telling police
Gable was in sweats, Harden later told police Gable’s trenchcoat was dark, while Hunsaker had said the assailant was wearing a light beige coat. While Harden placed the assault directly next to
32 In his recantation, Michael Keerins also stated that he and others had made up stories inculpating Gable for personal gain and that, subsequently, “Jodie Swearingen and Cappie ‘Shorty’ Harden both told him that they falsely implicated Frank Gable in the murder of Michael Francke.” Pet. Ex. A at 98. Like Keerins, Dennis Gause said that he, Harden and another man were making up stories on Gable to benefit themselves, but Harden was the only one the police believed. Tr. at 8860-62; Pet. Ex. C at 197-202. One witness who could have testified that he was with Harden (and not at the Dome Building) at the time of the murder was not called to testify at trial. Resp. Ex. 183, at 32-33. Trial witnesses disputed collateral facts to which Harden testified as well. Compare Tr. at 8594-96 (Adam Hernandez did not drive Swearingen from Dundee to Salem as Harden said he did), with id. at 8097-98 (Harden’s testimony about Hernandez).
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Francke’s car—with Gable lunging out at Francke—Hunsaker did not even see Francke’s car. Tr. at 6898, 8070. Hunsaker’s line of sight would have been directed toward where Harden claimed to be, but Hunsaker did not see Harden, Swearingen, or Harden’s car—or any car—racing from the scene. Id. at 6898. Harden had told police there were numerous cars parked between his vehicle and Francke’s, but other witness agreed. Id. at 6927-28; Appx. A Supp. at 145.
Additionally, given the lighting and the distance, it is highly unlikely that Harden could not have seen what he said he saw from the position he said he was parked. Pet. Ex. C at 79-80.
4. New Evidence Shows That Gable Never Confessed To The Murder.
a) Gable Did Not Confess To John Kevin Walker.
John Kevin Walker, a drug and gun dealer who supplied Gable with methamphetamine, and who testified that Gable confessed to him in private the day after the murder, has recanted his trial testimony inculpating Gable. See Pet. Ex. A at 36-78.33 In evidence presented for the first time in this proceeding, Walker states that he lied at trial when he said Gable confessed to the
Francke murder. Id.
Walker’s trial testimony was that he did not see Gable on the day of the murder because he was at his brother’s birthday party, but, on the day after the murder, Gable admitted to Walker that he “stuck” the guy at the State Hospital, and thereafter threatened Walker while handling a .357
Magnum firearm that Gable had purchased from Walker. See generally Tr. at 8152-8205.
33 Walker recanted his testimony in 1993 during an interview with defense investigator, Roger Harris. Harris has submitted an affidavit regarding the interview, which was audio taped. Pet. Ex. A at 36. An audio recording of that interview is available at http://or.fd.org/audio/John_Kevin_Walker_Interview_Aug_6_1993.mp3. An informal transcript of that recording is attached as part of Petitioner’s Exhibit A, at page 40.
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The truth, set out in Walker’s recantation, is that Gable never confessed to Walker or told
Walker he “stuck” Francke. Pet. Ex. A at 37-38, 67. Moreover, Gable did not—and would not— threaten Walker. Id. at 68 (“Frank Gable, he’s not ‘the mafioso’, he is not . . . omerta, he doesn’t have the authority or the ability to kill a witness and his entire family. I mean, we’re not talking about The Godfather here. We’re talkin’ about some guy who’s . . . strung out on dope . . . Gi’me a break.”). Gable did not even own a .357 Magnum, although Walker did. Id.
At trial, Walker also testified falsely to certain facts to make Gable look like a bad guy and to fit the State’s theory. For example, at trial, Walker overstated Gable’s methamphetamine use, said he was scared of Gable and Gable’s associates, and suggested Gable was a car prowler (based in part on his false belief that Gable had stolen from Walker’s mother’s car, when in fact he later learned someone else had been the thief). Tr. at 8179-80.
Walker lied for several reasons. See generally Pet. Ex. A at 35-78. First, the police led him to believe he was being investigated as a possible accomplice to the murder. Id. at 46-47.
Police told Walker that “Frank [Gable] said he was with you the night of the murder.” Id. Walker’s thoughts in response were “‘No way! . . . I don’t know where I was at the night of the murder, but
I do know that I wasn’t committing any murder and I wasn’t helping anybody commit any murder.”
Id.34 Thus, Walker lied to protect himself from being wrongfully implicated in the murder. Id.
As Walker explained, he was on parole at the time and would have done “anything” to stay out of prison. Id. at 55. In fact, at the time police initially interviewed him, Walker had several
34 Walker later “found out that the police went around telling everybody that Frank said they were with him that night.” Pet. Ex. A at 46.
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outstanding arrest warrants but the Oregon State Police agreed not to arrest him on them if he came in and cooperated with the interview. Pet. Ex. A at 48.
Second, Walker lied because he believed Gable had “snitched” on him, that is, that Gable had provided the police information that led to him and Mark Gesner being arrested. Specifically,
Walker stated: “at the time, I still felt Frank [Gable] was responsible for me and Mark [Gesner] getting busted, and at the time I really didn’t care about Frank [Gable] . . . my business was keepin’ my ass out of jail, for a murder I didn’t commit, or an accessory after the fact of a murder I didn’t commit, or had no knowledge of.” Id. at 71.
Third, the police repeatedly interrogated and polygraphed Walker, causing him to gradually change his story in response to the polygraph results that Ackom reported to him. Walker stated:
“The first one [polygraph], . . . I told the truth.” Id. at 46. After the test, the polygrapher left the room for five minutes, and upon his return announced: “Well, Mr. Walker, I don’t believe you’ve been truthful with me.” Id. The polygrapher told him that the case was “serious” and: “if you don’t start cooperating . . . you’re going to be standing on the curb with Frank . . . . Get on the bus now, or stand on the curb with Frank, and you can go down with him.” Id. Walker believed the police were implying he would be charged in connection with Francke’s murder. Id. Walker explained: “My first polygraph was the truth and they said I lied, and the second one was partial lies and partial truth, and they still say I lie[d], well, I figure if I lie, then the polygraph’s gonna say I’m tellin’ the truth.” Id. at 68-69. Thus, Walker began telling lies.
Walker’s recantation also is corroborated by other evidence. First, the Task Force reports documenting Walker’s statements to law enforcement and the polygraphs that Ackom conducted of Walker corroborate his recantation and support the reasons he said he lied. During two
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interviews in September 1989, Walker told the Task Force that he had no information that Gable was involved in the Francke murder. Pet. Ex. E at 254-58. According to Walker’s recantation, this was the truth. Pet. Ex. A at 35-78. However, when the Task Force recontacted Walker in
February 1990, four new factors contributed to Walker falsely incriminating Gable. First, Walker had learned from the media that Gable acted as a police informant. Pet. Ex. E at 259-63. Second, the Task Force took Walker into custody on outstanding warrants. Id. Walker not only faced
Benton County charges, but was also transported to Marion County to face burglary charges at the request of the Deputy District Attorney assigned to the Francke case. Id. Third, for the first time,
Ackom indicated to Walker that he suspected Walker was involved in the murder. Id. Finally, it was at this time that Ackom began the pattern of polygraphing, confronting, and interrogating.
E.g., id. at 405-14.
Specifically, Ackom polygraphed Walker and then told him the examination showed that he was lying in his denial that Gable confessed, and that the test was inconclusive on whether
Walker “participated” in the murder. Id. at 405-07. Ackom “confronted” Walker about his alleged deceptiveness, but did not memorialize the details of the discussion in his report. In response, Walker implicated Gable for the first time, explaining that, before the murder, Gable had made statements about taking out a high level drug dealer or official. Walker told police that
Janyne, Mickey Goss, and Kenny Farrell all heard Gable make these statements, but the police could not confirm as much, and Walker soon, thereafter, abandoned this statement.
Notably, even once Walker gave a statement incriminating Gable, that statement, which was incompatible with the interrupted-car-burglary theory of the case, was transformed through numerous iterations before it became his trial testimony. Pet. Ex. B at 13. During the next few
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weeks, through several subsequent Ackom polygraphs and many hours of additional interrogation by Ackom and other Task Force members, Gable’s purported vague pre-murder statement about
“taking someone out” morphed incrementally into a post-murder confession to “sticking” the guy at the OSH grounds and the threat to which Walker testified at trial. Id. As Dr. Raskin explains, each of the four polygraph examinations administered to Walker by Ackom suffered from defects and failed to comply with generally accepted protocols. Pet. Ex. B at 16.
Finally, Walker’s recantation is also corroborated by the trial testimony of Mark Davis, an inmate who said that Walker had admitted to Davis that Walker’s testimony against Gable was false, and that Gable had never confessed to killing Francke. Tr. at 8520-27.
b) Gable Did Not Confess To Daniel Walsh.
In this habeas corpus proceeding, Walsh submits an affidavit recanting his trial testimony and attesting to the fact that Gable never confessed to the Francke murder to him. Pet. Ex. A at
80-83.
At trial, Walsh testified that Gable twice confessed to the murder. See generally Tr. at
7928-42. Gable allegedly made the first confession in February or March 1989, while both Gable and Walsh were high on methamphetamine. Id. Gable asked Walsh about a knife Walsh had, and
Walsh responded that he bought it from Jerry Paul Baker. Id. Gable then supposedly told Walsh he had given the knife to Baker and that it was the knife he used to kill Michael Francke. Id.35
35 The post-conviction court made an erroneous finding when it said: “During Spring or Summer 1989, Baker traded a car stereo to Frank Gable for a G.I. Joe type hunting knife.” Resp. Ex. 345, at 38. Baker testified that he traded such a knife to Dan Walsh—not Frank Gable—at that time. Tr. at 8575-79. Baker gave no testimony that Gable had any connection to that knife, including no testimony that Gable gave it to Baker, even though Walsh testified that Gable told him he had given the knife to Baker.
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Gable supposedly then threatened to kill Walsh and his family if Walsh told anyone. Tr. at 7928-
42. At the time, Walsh believed Gable was joking because he often said macho things. Id. Walsh later pawned the knife. Id. Despite the supposed threat, Walsh later invited Gable to live with his family temporarily. Id.
According to Walsh’s now-recanted testimony, Gable made a second confession several months later after an argument between Gable and Doug Scritchfield in which Gable said he would kill Scritchfield and told Walsh: “Well you remember Michael Francke.” Id. Gable supposedly then confessed again, telling Walsh that he had been “jockey boxing” and Francke’s car door was open, and he was laying across the seat when Francke came up to him. Id. Gable lunged out at
Francke, stabbing him repeatedly, and then fled across the parking lot. Id. After confessing, Gable threatened Walsh and his family again. Id. No trial evidence corroborated Walsh’s bare assertions that Gable had confessed to him.
Like the other true Gable associates, Walsh was truthful when he said he knew nothing about the murder when he was first interviewed in September 1989. Pet. Ex. A at 80-81. But, as with the others, that changed as a result of the interrogation tactics employed by the police. As
Walsh now explains:
However, in March of 1990, I was subjected to consecutive days of aggressive police questioning and several polygraphs.
At first, when I tried to maintain my earlier true statements, the police yelled at me and said that I was lying and that the polygraph results showed that I was lying.
The police asked me questions about topics I knew nothing about. I felt the police were trying to brainwash me. I felt extreme pressure to incriminate Gable.
Eventually, I told the police what I thought they wanted me to say: that Gable had confessed to me the details of the murder.
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My use of methamphetamine affected my ability to resist the pressure police officers put on me to incriminate Gable.
Id.
Walsh’s statements about police pressure are borne out by the reports of the interviews and polygraphs conducted by the Oregon State Police during the intense period in mid-March 1990 when police flew Walsh back to Oregon from Ohio to interrogate him about statements Linda
Parker made. E.g., Pet. Ex. E, 268-77, 415-22; see generally Resp. Ex. 301. Likewise, Dr. Raskin reviewed Walsh’s three Ackom polygraphs, and found flaws in their construction and administration. Pet. Ex. B at 16.
Dan Walsh further explained to the Federal Public Defender investigator that he was using drugs at the time he was interviewed by police and when he testified. Pet. Ex. C at 4-5. He believes he was high during some of the interviews. Id. He does not think the jury should have taken seriously anything he said at trial. Id. Walsh has now been sober for a decade, and related that he knows from personal experience that when a person is on drugs, particularly methamphetamine, he is not a credible reporter of facts. Id.
A final reason to believe Walsh’s recantation is that he received benefits from the State for testifying. Although he testified that he did not receive anything, Tr. at 7928-42, Walsh actually received promises of immunity and had charges dropped as a result of his cooperation, Pet. Ex. C at 4-5.
Walsh’s recantation is also supported by the newly submitted affidavit of Walsh’s ex-wife,
Cheryl Lowery, who testified for the defense at trial. See Pet. Ex. A at 84-92. At trial, Lowery said that Gable never confessed to her and was always nice to her family, that Walsh never mentioned that Gable had threatened their family, and that she left Walsh because he was a drug
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addict. Tr. at 8477-82. In addition to reaffirming her trial testimony, Ms. Lowery submits the following additional information. “Years after he testified, Dan [Walsh] admitted to me that he lied during his testimony and that he falsely implicated Frank Gable in the murder of Michael
Francke.” Pet. Ex. A at 86. According to Lowery, Walsh told her he lied in part because he was angry with Gable for taking advantage of him (monetarily) when Gable lived with Walsh. Id. Ms.
Lowery also confirmed that Walsh’s behavior at the relevant time was inconsistent with Gable having threatened him and his family, as the pair laughed together and Walsh left his family at home alone with Gable. Id. at 84-92.
c) Gable Did Not Confess To Earl Childers.
In this proceeding, Earl Childers submits an affidavit recanting material aspects of his trial testimony as well. Pet. Ex. A at 94-95. Childers’ trial testimony had two components. First,
Childers testified that Gable confessed to him. Tr. at 7742-7808. As was the case with Walsh, there was no evidence to bolster Childers’ bare assertion that Gable had confessed in his presence.
In his newly available affidavit, Childers attests: “Gable never told me that he killed Michael
Francke.” Pet. Ex., A at 94-95.
Second, aside from Harden’s false testimony, Childers was the only of the State’s witnesses to place Gable in the vicinity of the Dome Building around the time of the murder. The new evidence introduced in this proceeding calls Childers’s trial testimony on this point into question as well. Childers is not certain that he saw Gable, Gable’s car, or that the night he testified about at trial was actually the night of the murder. Id. at 94 (“While I am certain that I saw a car that I believed was Gable’s, it could have been a similar car. Many cars look alike.”). Childers states:
“I am not certain that Gable was in the car that I saw.” Id. With regard to whether Childers could
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see Gable’s face and that Gable was wearing sunglasses, as he testified at trial, Tr., at 7754-55,
Childers explained: “I could see a face, but I could not distinguish who it was to actually say I saw his face in the dark.” Pet. Ex. C at 5-6.
This newly presented evidence is corroborated by Greg Johnson’s trial testimony that
Childers told him he was not certain that he observed Gable’s car. Tr. at 8622-27.36 Moreover, although defense counsel did not cross-examine Childers on his ability to perceive what he said he saw, evidence newly presented in this proceeding calls into serious question whether Childers could have seen Gable driving as he testified he did. Based on experiments, the Federal Public
Defender investigator concluded it would not be possible for Childers to recognize Gable’s vehicle
(given the darkness, distance, and effect of the vehicle’s headlights), or to identify Gable as the driver of the vehicle. See Pet. Ex. C at 77-79.
Childers explains that he felt pressured by police to implicate Gable in the murder. Childers told a Federal Public Defender investigator that he initially told police that he knew nothing, but thereafter heard that Gable was a “rat for Keizer” and that Gable had been violent toward Janyne, even breaking her arm. Pet. Ex. C at 5-6. Childers was also angry at Gable (at the time he spoke with police) because Gable owed him about $2000, which Childers characterized as “a lot of money at that time.” Id. In fact, Childers believed Gable owed a lot of people money and was a
“low life” who frequently “screwed people over.” Id.
In his affidavit, Childers explains: “I was pressed (or pressured) by the Oregon State Police.
They were angry when I wouldn’t tell them what they wanted to hear and when I refused to take a
36 See also Pet. Ex. G at 29 (Childers told Johnson that he “wasn’t really sure” what kind of car he saw); Pet. Ex. C at 186-92.
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polygraph. They made me call my attorney in front of them and didn’t give me any privacy.” Pet.
Ex. A at 95. Childers was advised by his attorney, Paul Ferder to “tell them [the police] what they wanted to hear” and to tell the police about his involvement because the police “would find out anyway.” Pet. Ex. C at 5-6. After consulting with Ferder, Childers cooperated with police.
Notably, while assisting Childers in his cooperation with the State, Ferder also represented another cooperating witness, Mark Gesner.
Other evidence also suggests Childers’ trial testimony is incorrect. In his trial testimony,
Childers testified that he remembered the date on which he allegedly saw Gable because his wife was questioned by the police about the murder “the next day.” She worked at the Old Salem
General Hospital, located across 23rd Street to the west of the Dome Building, and had been interviewed as part of the Task Force’s initial canvass of the area. However, Childers’ wife was interviewed the following week, on January 24, Pet. Ex. E at 423, which would mean that whatever
Childers observed (whether it was Gable or some other vehicle drive down D Street) occurred on
January 23, not January 17. The defense did not introduce evidence of this fact at trial. However, even if Childers’ memory is genuine and correct, it is not surprising that his recollection would be off by one week as Childers was not asked about what he saw in January 1989 until approximately ten months later.
Finally, additional evidence called into question the credibility of Childers’ testimony, including the extent of the benefits he was receiving for his testimony. The defense presented the testimony of Childers’ prior attorney, Charles De Martini, who testified that, in January 1991, the
State, through the District Attorney, suggested that the State might provide Childers post-trial benefits in exchange for his cooperation, but could not make telephone calls on behalf of Childers
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before the Gable trial because it might look improper. Tr. at 8765-83. Although the defense did not call Larry Kirkland as a witness, Kirkland could have testified that, while they were incarcerated together in late 1989, Childers told him that if Childers testified against Frank Gable before the Grand Jury, all charges against Childers would be dropped. Pet. Ex. G at 30.
d) An Interrogation Pattern Like The Pattern That Produced The Now-Recanted Testimony Of Other Witnesses Also Produced Mark Gesner’s Testimony.
The Federal Defender Office has been unable to locate and interview Mark Gesner, who apparently now lives outside of Oregon and works as a long-haul truck driver. Pet. Ex. C at 6.
Although Gesner has not been re-interviewed about his trial testimony, there are many reasons to disbelieve that testimony. Gesner testified that Gable came to his house between 8:30 and 10:30 p.m. on the night of the murder and asked Gesner to get rid of a plastic bag, which Gesner agreed to do. See generally Tr. at 7971-8040. The following day, Gesner learned of the Francke murder from the news. Id. That day, he claims he drove the bag to Sunset Park, added rocks, squeezed the air out of the bag, feeling a cylindrical object and clothing, but not looking inside, and threw the bag thirty feet into the river. Id. He watched it float for 1-2 yards before sinking underwater, and then he left. Id. The next day, Gable asked about the bag and Gesner told him he got rid of it. Id. Months later, on the same night that Childers said Gable confessed to him, Gable also
(separately) confessed to Gesner and told him that the bag contained the clothes Gable had worn at the time of the murder. Id.
On its face, Gesner’s trial testimony was far-fetched in that it is improbable that a murderer would entrust a bag of the most incriminating evidence against him to someone else when he could
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have disposed of the evidence himself.37 Moreover, the inability of law enforcement to duplicate the way Gesner said he disposed of the bag (because a bag disposed of that way would not sink in the river the way Gesner claimed), and the failure to recover the bag or its contents despite exhaustive underwater search efforts, provides further reason to doubt the truth of Gesner’s testimony. Tr. at 8040-52.38
A review of the Task Force’s reports of Gesner’s many interrogations and polygraphs reveals that Gesner’s trial testimony was a product of the same pattern that generated the now- recanted testimony of other witnesses. As with the recanting witnesses, when the Task Force first interviewed Gesner in mid-September 1989 along with most of the other Gable associates, Gesner did not implicate Gable in the Francke murder in any way, although he was willing to implicate
Gable in drug and firearm crimes. Pet. Ex. E at 40-52.
The first interaction between Gesner and the Task Force—in which he did not implicate
Gable in the murder—demonstrates, first, and contrary to the State’s claim that witnesses were reluctant to provide any information to police, that Gesner was trying to be helpful by volunteering information, and, second, that the Task Force presumed Gesner was hiding something from the outset. Specifically, after Gesner first met with the Task Force and said he knew nothing relevant, he talked with his girlfriend about what she knew, and then called the Task Force back to volunteer
37 Gesner’s testimony that he disposed of what was likely the knife was inconsistent with Dan Walsh’s testimony that, months later, he obtained the knife Gable had admitted to using for the murder. These apparent inconsistencies were not addressed at trial. 38 Despite this exculpatory evidence, defense counsel negated its value by suggesting during the cross-examination of Gesner that the police had recovered the items that he described, even though nothing that matched his description was recovered. Tr. at 8019-20, 8052. The defense did not explain in closing argument why it had elicited this information, which left the mistaken impression that the bag Gesner had disposed of had been recovered.
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what he heard from his girlfriend. Id. at 50-52. At that point, Gesner told the Task Force that the girlfriend overheard Gable confess to Earl Childers. Id. But the girlfriend told the Task Force she never overheard Gable confess to Childers. Id. at 143-47. Childers likewise denied that Gable ever confessed to him. Id. at 19-27. Childers explained that the girlfriend may have overheard
Gable telling Childers about being interrogated about the Francke murder in May 1989. Id. This sequence of events does not suggest any reluctance on the part of Gesner to cooperate with police.
Despite Childers’ plausible explanation, which was not contradicted by either Gesner or the girlfriend (i.e., neither Gesner, Childers nor the girlfriend was saying Gable confessed to them),
Ackom turned to polygraph. Pet. Ex. E at 282-87. Ackom’s polygraph reports purport to summarize the investigation to date and suggest that Gesner was denying material facts that others had confirmed. Id. Yet, the reports omit the facts that both Childers and the girlfriend had said
Gable never confessed. Id. After declaring the first test inconclusive, Ackom said the second test showed that Gesner was being deceptive about his own participation in the murder, and Ackom
“confronted” Gesner. Id. at 285-87. During the post-test interrogation, Gesner responded that he was with Gable on the night of the murder, as well as the nights before and after, and that Gable never said or did anything that made Gesner think Gable was involved. Id.
With regard to why the test showed he was lying, Gesner explained that “[t]he only thing he [could] think of” was the conversation he had with Childers where Childers supposedly told him that Gable killed Francke, which Gesner stated, he had been able to remember since the last interview where he had no memory of it, but which did not mean anything to him at the time because he did not know who Francke was until his first police interview. Id. at 285-87. Gesner ended the interrogation, saying he wanted to talk with his attorney. Id.
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At the time of this polygraph and Gesner’s initial interviews, Gesner was at the Clark
County, Washington jail awaiting resolution of his outstanding cases and represented by Salem
Attorney Paul Ferder, who was simultaneously representing Childers. Gesner faced serious charges, including a Federal gun charge, multiple cases involving State drug use and trafficking charges, additional drug charges in California, and a parole violation on a previous case. Id.; Pet.
Ex. C at 6, 23-62. Oregonian columnist Phil Stanford testified at trial that, during Fall 1989,
Gesner was adamant that he had no evidence to implicate Gable in the Francke murder, but that he wished he did because the Oregon State Police were pressuring him for evidence and his attorney was advising him that it would help his own case if he were able to provide them with evidence against Gable. Tr. at 8504-09. Ultimately, Gesner did exactly that.
Indeed, Gesner admitted at trial that he told a jail guard that “it is a matter of fifteen years or a few months, everyone has to take care of themselves.” Id. at 8024. The jail guard, who was not called to testify, would have provided the following context for Gesner’s statement: during a period in which Gesner was questioned frequently about the murder, Gesner told the guard that the police “wanted him to say that Michael Francke was killed by Frank Gable as a result of finding a car burglar in the car,” and that “Gesner did not want to go along with that story,” but that he had decided “he was going to testify as the State wanted him [to] since he had made a deal with the police.” Pet. Ex. G at 1-2. Similarly, in an interview prior to trial, Gesner told Gable’s defense investigator that: “‘you need to understand that everybody’s got sentences, we’re in jail.’ He also said that I needed to understand the coercion that has gone on in this case and that it is dangerous for everyone.” Id. at 26-28.
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Like Walker and Walsh, Gesner was not recontacted until February 1990. By that time, his attorney Paul Ferder had negotiated an agreement for Gesner to provide information incriminating Gable. Pet. Ex. E at 292-95. By that time, Ferder had previously set up a similar meeting between Childers and the Task Force at which Childers had provided information incriminating Gable. Id. at 28-33. At that meeting, Childers had implicated Gable for the first time, providing an account that would largely become his trial testimony, including that Gable had confessed to him. Id. Also, by February 1990, Gesner’s girlfriend had told the Task Force that:
(1) Gesner told her that he was with Gable on the night of the murder until Gable left in the morning to take his wife to work, and (2) in contrast to her earlier statements, that she overheard Gable confess to Gesner directly. Id. at 148-51. Finally, also by February 1990, Ferder had negotiated settlements of Gesner’s four outstanding criminal cases (including a federal gun case, two Marion
County drug cases, and a probation violation arising out of a 1986 Lincoln County conspiracy conviction).
At that point, Gesner and Ferder sat down with the Task Force for an Ackom polygraph.
Pet. Ex. E at 292-95. The meeting was attended by Ferder, District Attorneys Sarah Moore and
Tom Bostwick, State Psychiatrist John Cochran, and two Task Force detectives. Id. Ackom described his mission thus: “Investigating officers desired more specific questions dealing with
Gessner’s [sic] possible involvement in this murder and possibly to get Gessner [sic] to admit to his involvement.” Id.
In response, Gesner implicated Gable in the Francke murder for the first time—five months after he was initially contacted by police. Id. However, Gesner stated only that Gable verbally confessed to killing Francke and that he may have seen Gable on the night of the murder, but
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denied that Gable gave him any physical evidence for disposal. Id. Ackom confirmed that Gesner was being truthful that Gable had confessed, but also concluded that Gesner was deceptive in denying that Gable was at his residence after the murder and in denying that Gable asked him to dispose of physical evidence. Id.39 Ackom thereafter “confronted” Gesner with those polygraph results. In response, Gesner told a myriad of incriminating things about Gable, including that
Gable asked Gesner for information about how to get rid of clothes and a gun, and affirming that
Gable had confessed to Gesner and Childers in July, and painting Gable as someone who would do anything for money in January 1989. Id. at 292-95. Gesner said Gable possessed approximately ten firearms and all sorts of keys and devices for opening locks. Id.
After a number of additional polygraph and interrogation sessions, the story Gesner told that day morphed into his final trial testimony. See Pet. Ex. B at 13-14. In particular, at the next polygraph, Gesner continued to deny disposing of any evidence, knowledge of the location of the murder weapon, and that Gable confessed to him in January 1989. Pet. Ex. E at 296-98. Ackom found Gesner deceptive and confronted him, to which Gesner responded Gable “could have” confessed to him in January.40 Id. Gesner was thereafter interrogated by two other Task Force members. Id.
39 Prior to this Ackom polygraph, there was no evidence to suggest Gable had gone to Gable’s house or asked him to dispose of evidence. 40 Notably, Ackom also found Randy Studer deceptive when he denied that Gable had given him evidence, including bloodstained clothing, to get rid of. Pet. Ex. E at 343.
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Ten days later, Gesner was polygraphed three times in a single day. Id. at 288-91.41 Ackom gave Gesner a Peak of Tension polygraph, hoping to hit on whether Gesner knew Gable’s motive for going to the Dome Building (To rob Francke? To steal a car phone? To get “snitch” papers?
To kill Francke? To burglarize the Dome Building? To steal a computer? To steal Francke’s car?
For some other reason?). Id. This type of test is only valid to confirm information known by the examiner that would also only be known to the accused, rather than to search for new information.
Pet. Ex. B at 4. Indeed, Ackom acknowledged that the test was “inconclusive,” but, nevertheless, concluded that there were some “consistent responses” on the question of whether Gable went to the Dome Building to rob Francke, so Ackom focused on that when he confronted Gesner. Pet.
Ex. E at 3-7. In response, “Gesner related that he did not know for sure why Gable went over there that night, but he is just guessing that it was either to rob Michael Francke or to steal his car. Gesner claims that Gable would not go over there just to break into Michael Francke’s car, but he would steal the whole car.” Id.
The same day, Ackom gave Gesner a Reid examination involving four questions, and for the first time, Gesner stated that Gable had given him a bag of evidence, including a knife and clothing, to dispose of. Gesner said he threw the bag off a bridge into the Willamette River. Id.
Ackom found that Gesner was truthful in admitting that Gable gave him this evidence to dispose of but that he failed the question about throwing the bag in the Willamette River. Id. When Ackom confronted Gesner with this result, Gesner responded that he had thrown the bag into the river
41 Two days earlier, under pressure of being indicted as an accessory to the murder, Walker had told police Gable confessed to him. Four days later, under similar pressure, Studer confirmed Perkins’ story that Gable confessed to him.
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from Sunset Park (as he would later testify at trial), rather than from a bridge. Id. Of course, when
Gesner and investigators later went to Sunset Park to recreate Gesner’s story, they were unable to get a bag to sink into the river the way Gesner had described, and they found no bag of evidence after searching the river.
When Gesner also provided additional detail that appeared to conflict with other evidence, those inconsistencies did not become part of his eventual trial testimony. For example, Gesner told police that: “Gable’s shirt, a pair of blue jeans, and a metal object that he believed to be a knife was in a brown semi-transparent plastic bag.” Id. Despite Gesner’s claim at this point that he knew what was in the bag (i.e., blue jeans, which did not match Hunsaker’s description of the fleeing suspect), Gesner’s next statement to the Task Force was that he did not know what was in the bag. Pet. Ex. E at 34-37. This would become his final statement once Ackom polygraphed it as true. Id. at 38-39. Thus, in opening argument, the State described Gesner’s expected testimony, stating: “When he opens [the bag] up, he can see at least cloth material in the bag, but he doesn’t take anything out of the bag and doesn’t make any attempt to notice what is in the bag.” Tr. at
5919.
Gesner’s experience with the polygraph examinations appears to be similar to the other recanting witnesses. On March 28, 1991, Gesner’s girlfriend told the Task Force that in September
1990, Gesner told her he lied to the police:
[H]e lied on the polygraph. He said when he lied the test came out truthful and when he was truthful, they told him he lied. He also told me when he gets out he wants to get back at certain people including Frank Gable. The reason being he found out after he was arrested (Gesner) that Frank Gable had him busted by working undercover.
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Pet. Ex. E at 446-49.42 The Willamette Week also reported that a friend of Gesner’s said he described being polygraphed on truthful statements and being told he was lying.43
Gesner told Gable’s defense investigator that he could not recall how many polygraphs he was given because he “lost count” after a while, but that he believed it was more than the three the investigator told him she knew of. Pet. Ex. G at 26-28. With regard to his interrogations, he said that “there was a psychiatrist present at some of the polygraphs, but that the room was so full of people that he didn’t really know what was happening most of the time.” Id.
Moreover, like the recanting witnesses, even after Gesner willingly implicated Gable in the murder, the details of his account—details that he would have no reason to hold back if his statement was truthful—continued to change through numerous additional Ackom polygraphs, confrontations by Ackom, and subsequent interrogations. Thus, in addition to the inherent implausibility of his story, these small changes in the facts of Gesner’s inculpatory story as it morphed toward the story he told at trial suggest he was fabricating the story in response to cues from the Task Force. Had his testimony been truthful, there is no reason he would not have given the account he gave at trial when he first implicated Gable. Additionally, like others of the
42 The handwritten police notes memorializing this information were dated March 28, 1991. Pet. Ex. E at 446-49. No report containing this information has been found. However, the notes reflect that the girlfriend also said: “In December 1990, I gave the information to the Marion County District Attorney’s office.” Id. This important Brady material was not provided to the defense until May 6, 1991, after trial began. Id. at 451. Gesner’s girlfriend did not testify at trial. It is unclear whether the defense attorneys were aware of this statement or recognized its significance. 43 Budnick, Nick, Polygraph Expert Questions Francke Investigation Tactics, Willamette Week (Dec. 1, 2004), available at http://www.wweek.com/portland/article-3881-.html#.
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“material” witnesses, Gesner admitted at trial that, at the time he inculpated Gable, he believed
Gable had “snitched him off,” even though he later learned he had been incorrect. Tr. at 8021.
e) Gable Did Not Confess To Randy Studer And Studer’s Recantation, Along With Other Evidence Not Presented At Trial, Undermines The Trial Testimony Of Linda Perkins That Gable Confessed.
Linda Perkins told the Task Force in October 1989 that Gable confessed during a conversation that included Gable, Randy Studer, Theresa Ross, and herself.44 Randy Studer and
Theresa Ross initially denied that Gable confessed to the Francke murder in such a conversation, but, under police pressure, eventually corroborated Perkins’ story and testified to it before the
Grand Jury that indicted Gable. Studer, one of the State’s “material” witnesses, recanted on the eve of trial. Pet. Ex. E at 440-45. Neither Studer nor Ross was called at trial.45
In contrast, at trial, Perkins testified to the following: she saw Gable at 6:45 a.m. at Studer’s house on the day after Francke’s murder. See generally Tr. at 7946-69. She was sure it was
January 18, 1989, because she heard about the Francke murder on the radio later that day. Id.
Gable was acting nervous and was unkempt. Id. When Ross asked Gable what was wrong, he replied: “I fucked up big time this time.” Id. Perkins asked what he meant and he said: “Well, I’ll put it to you like this, you will be reading about it in the papers.” Id.
Perkins then testified that “a week to ten days later” Gable threatened her over the telephone that, if she opened her mouth, she was a “dead mother fucker.” Id. at 7953.
44 Randy Studer was Gable’s brother-in-law and is Janyne Gable’s brother. Theresa Ross was Studer’s live-in girlfriend in 1989. Linda Perkins is Theresa Ross’s mother. 45 As discussed below, it appears the defense was unaware of the State’s late-provided report showing Studer had recanted. Unlike the State, the defense told the jury during opening statements that Studer would testify that Gable confessed to him. Tr. at 5935.
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Gable’s attorneys attempted to cast doubt on Perkins’ credibility by noting that: (1) she had come forward nine months after the murder, and only after having seen reference to Gable in the newspaper;46 (2) she was employed by the State and had ties to ODOC; and (3) she did not like
Gable because of his drug association with her daughter (Ross). Id. at 7958-67. The defense failed to note, however, the important differences between Perkins’ statements to police and her eventual trial testimony.
First, unlike the import of her testimony, any threats Gable supposedly made were related to her reporting on drug-related activity, not about covering-up a confession to murder. Pet. Ex.
E at 98-103 (Perkins’ statement that she observed Ross and Gable engage in drug activities, and that Gable subsequently threatened her [Perkins] because he “was concerned about her telling someone (her being Mrs. Perkins) about his drug dealing”). Second, in Perkins’ statement to police, she claimed that Gable explicitly referenced Michael Francke during his January 18th confession. Specifically, Perkins stated that after Gable said he “fucked up,” he asked Studer:
“Have you heard about the Francke case?” Id. The State did not present to the jury this second part of Perkins’ statement to police, and Gable’s attorneys did not challenge her about the implausibility of the actual killer referring to the event as “the Francke case” on the morning after the murder.
In terms of discrediting Perkins’ testimony, however, the most powerful evidence is that no other party to Gable’s supposed confession agrees that the confession ever occurred.
(1) Studer And Ross’s Credible Recantations Fatally Undermine Perkins’ Testimony.
46 Perkins never explained why she did not contact the Task Force’s tip line immediately instead coming forward months later after she learned the police suspected Gable.
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In newly submitted affidavits, Randy Studer and Theresa Ross recant their statements, which corroborated Perkins’ claim and inculpated Gable. Both now submit, via affidavits, that the purported confession of Gable that was related to the trial jury by Linda Perkins never took place.
Pet. Ex. A at 29-31, 33-34.
In his affidavit, Studer avers that, when he was first interviewed in September 1989, he told the Task Force the truth, which was that “Frank Gable had never told me (Studer) that he
(Gable) was involved in the murder of Michael Francke.” Id. at 29. In fact, Studer told police during that interview that another man, Doug Scritchfield, had told Studer that he (Scritchfield) had committed the murder. Id. at 29.47 Studer “previously lied to the Oregon State Police because he felt he “had no choice but to lie to avoid going to prison.” Id. at 31. However, Studer states he caved in response to police pressure to corroborate Perkins’ statement:
5. Around the same time [that he was first interviewed], the Oregon State Police also questioned Linda Perkins, the mother of my then-live-in-girlfriend, Theresa Ross. Ms. Perkins told the Oregon State Police that she was in my home the day after the murder and overheard Frank Gable confess to me that he had murdered someone from corrections. This did not happen. Frank Gable did not confess to me. Ms. Perkins was not in my home that day.
6. Despite my initial statement, the Oregon State Police continued to question me regarding the murder in October, November, and December of 1989 and again in Spring 1990.
7. Throughout 1989, I maintained my truthful story that Frank Gable never confessed any involvement in the Francke murder to me.
8. During this time, the Oregon State Police administered numerous polygraph examinations. It did not seem to matter what answers I gave. When I told the truth during the examinations (i.e., that Frank Gable had never confessed to me), the
47 In addition to confessing to Studer, Scritchfield also told Michael Keerins that he had committed the murder. Pet. Ex. A at 29, 101. Scritchfield resided at a treatment facility on the OSH grounds across from the Dome Building, and, like Keerins, was on a pass to attend an AA meeting on Center Street on the evening of the murder. Pet. Ex. E at 79.
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examiner concluded that I was lying. It was not until I later changed my story to a lie implicating Frank Gable in the murder, as described below, that the polygraph examiner concluded I was truthful.
9. Over time and under the pressure of police interrogation and polygraphs, I made the following statements that were untrue. First, I conceded that it was possible that, because I was using drugs, I was unable to recall Frank Gable’s confession although I knew Frank Gable had never confessed to me. Second, I falsely told the Oregon State Police that Doug Scritchfield had not only confessed to the murder but had also implicated Frank Gable.
10. The Oregon State Police continued to insist that I confirm Ms. Perkins’s story that Frank Gable had confessed to me. I felt that they were shoving this theory down my throat.
11. In January 1990, I was charged with a serious offense. The District Attorney and Oregon State Police threatened me with a ten-year prison sentence. However, they offered me a suspended sentence with one year at the Marion County work release center if I testified against Frank Gable.
12. Facing this significant prison sentence, I did not feel that I had any choice but to agree to testify. I accepted the plea offer. I told the police what they wanted to hear. Specifically, I told the Oregon State Police that on the morning of January 18, 1989, Frank Gable had confessed to murdering someone the previous evening. This statement was untrue. Nevertheless, the Oregon State Police conducted a polygraph examination and concluded the statement was truthful.
Id. at 30-31. Studer’s pre- and post-trial recantations are consistent and undermine Perkins’s contradictory trial testimony. Pet. Ex. E at 440.
Theresa Ross (Perkins’ daughter) also submits an affidavit in the instant habeas proceeding, stating: “Frank Gable never confessed to me or in my presence that he was involved with the murder of Michael Francke.” Pet. Ex. A at 33. Moreover, Ross avers that “Linda Perkins, my mother, never heard Frank Gable confess to the murder of Michael Francke. She got involved because she likes to have her name in the limelight.” Id.
(2) The Interplay Between Studer’s Interrogations And Those Of Ross, Perkins, And Others, Bolster His Recantation And Undermine The Credibility Of Perkins’ Trial Testimony.
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Shortly after Michael Keerins told police Gable had confessed to him, and newspapers reported on his statements implicating Gable in the murder, Perkins inserted herself into the case and became the second witness to inculpate Gable. Specifically, after reading newspaper reports that Gable was a suspect, and learning from Ross who Gable was and that Ross knew him, Perkins called the Task Force and said she had information about the case. Pet. Ex. E at 98. Perkins told the Task Force the story described above.
The Task Force immediately interviewed both Ross and Studer because Perkins said they were part of the conversation with Gable. Id. at 156-60, 112-41. Neither confirmed Perkins’ story.
Id. From September 1989 to February 1990, Studer’s position remained constant, even when he was told polygraph results proved he was lying: Gable never confessed to him. During five sessions in October, November, and December, the Task Force interrogated Studer, each time with
Ackom administering one or more polygraph examination, telling Studer the polygraph results showed he was lying about Gable confessing, and confronting him about those results. Thereafter, other Task Force members would interrogate Studer, sometimes for as many as five hours. E.g., id. at 156-60, 193-201, 339-43, 156-60, 425-30; see generally Resp. Exs. 302-03 (Studer Witness
Notebook). Studer did not implicate Gable, but he did, however, tell the Task Force that another man, Doug Scritchfield, had confessed to Francke’s murder. Id. at 337. The Task Force does not appear to have followed up on Scritchfield’s confession.
Police told Studer that Ross had confirmed Perkins’ story even though this was untrue. Id. at 156-60. In fact, Ross had told the Task Force that she never heard Gable confess and that Studer never told her that Gable confessed. Id. at 331-32. Ackom polygraphed Ross and concluded that
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she was being truthful. Later, Ackom would polygraph Perkins and determine that her diametrically opposite story was also truthful. Id.
It was not until months later, in February 1990, when Studer and Ross were charged in a serious sexual abuse case involving a minor that everything changed for them. In an interview just after police confirmed Ross’s involvement in the abuse, she did an about-face and told police she now not only remembered that Gable came to her house around the time of the Francke murder but also that he stated: “I fucked up, I’ve done all the time I’m going to do. I’m not going back in.” Pet. Ex. E at 142. Ross was never thereafter interrogated again.
In Studer’s next interview, the first since the sex-abuse allegations against him and Ross arose, Studer implicated Gable in the Francke murder for the first time. He corroborated Ross’s statement and claimed that Gable had said: “I really fucked up bad last night.” Studer added another wrinkle and claimed Gable had also said: “I killed someone,” Studer then asserted for the first time that Scritchfield had told him that Gable alone committed the murder. Id. at 163.
However, Studer still did not confirm Perkins’ version of events that day. Id. Through several more polygraph and interrogation sessions, his statements changed incrementally until he eventually gave a statement fully corroborating Perkins, which Ackom confirmed as truthful in a statement-verification test. Id. at 344-55, 165-92. In all, Ackom administered eight polygraphs to
Randy Studer, each of which was flawed in such a way as to render its results unreliable. Pet. Ex.
B at 15-16. In short, the process that generated Studer and Ross’s corroboration of Perkins’ account was flawed and Studer’s and Ross’s current exculpatory statements are more credible.
(3) Perkins’ Statements About Gable Threatening To Kill Michael Francke In December 1988, Which The State Did Not Present At Trial, Further Undermine Her Credibility.
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The Task Force also spent significant time investigating information received from Perkins in February 1990 about an incident from December of 1988 that she suddenly remembered. If true, the evidence showed that Gable was planning the murder of Francke in late 1988, a month before the murder. Ultimately, through the polygraph-confront-interrogate process, the Task Force was able to get three other witnesses—Studer, Rick Ringler, and Dan Walsh—to confirm Perkins’ version of the December 1988 incident. Yet, the State chose not to introduce this seemingly powerful evidence of premeditation at trial. While the best explanation for this omission is that
Perkins’ claim was so dubious that it would have undermined whatever credibility she had as a witness, the false statements of others that eventually corroborated Perkins’ claim demonstrate the coercive power of polygraph results.
In February 1990, Perkins told police that, in December 1988, she overheard Studer, Gable,
Dan Walsh, Rick Ringler, and possibly others at Studer’s residence angrily making a plan to kill
Michael Francke:
They were discussing Michael Francke. I got the impression they were very angry with him for some reason. One of them said, “He is going to get his.” They were going to fix him. He was pissing a lot of people off. I was left with the distinct impression they were talking about killing him or having him killed. The Mexican mafia was mentioned and having it done wouldn’t be hard to do.
Pet. Ex E, at 95, 317-19. Perkins apparently had not recalled this event four months earlier when she contacted the Task Force to claim Gable had confessed to her.
Ackom then administered several polygraph protocols, the Matte statement-verification examination and “yes-no” format, to conclude that Perkins was being truthful in her statements about the December 1988 incident and that she heard Gable confess. Id. According to Dr. Raskin, these protocols are invalid. Pet. Ex. B at 4.
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As with the supposed confession, the Task Force attempted to corroborate the information
Perkins provided about the December 1988 incident. Through a series of interrogations, polygraphs, findings of deceptiveness, subsequent confrontations and further interrogations,
Ringler, Walsh, and Studer each eventually confirmed the December 1988 incident happened as
Perkins said it did.
Ringler initially denied plotting to kill anyone at Studer’s house. After he was polygraphed and told he was lying, Ringler said: “he possibly could have been at Studer’s when that conversation took place.” Pet. Ex. E at 320-21. After an additional interrogation, Ringler said he was at Studer’s when Gable said he was going to kill someone, and Ringler assumed from the conversation that it was either a high level dope dealer or a government official. Pet. Ex. E at 104-
09, 323-25. A week later, Ackom polygraphed Ringler again to get “more details.” After that polygraph, Ackom confronted Ringler telling him he was deceptive. Pet. Ex. E at 323-25. In response to further interrogation, Ringler added a detail: he overheard Gable say he would “kill that fucker.” Id.
Still not satisfied, the Task Force brought Ringler into the patrol office less than two weeks later for further interrogations and polygraphing. For unstated reasons, Ackom polygraphed
Ringler on whether Gable used the word “Corrections” during the December 1988 incident. After
Ringler denied it, he was told he failed the polygraph and was further interrogated. Pet. Ex. E at
326-31. After that, Ringler provided a written statement that he had, in fact, heard the mention of the word “Corrections” in connection with the December 1988 incident. Id. at 110-11. A week later, Ackom polygraphed Ringler about this final, inculpatory statement and found him truthful.
Id. at 329-30.
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Ringler later told Gable’s trial investigator that the police harassed him, polygraphed him numerous times, and were abusive during the interrogations, and that Ringler’s true recollection was about a time when Gable was at Studer’s home ranting about being angry at Larry Kessell— not Michael Francke—over a drug deal. Pet. Ex. G at 36-39.
Similarly, when Studer was asked about the December 1988 incident, he was clear that it did not happen as Perkins described. Pet. Ex. E at 161-64. An incident did occur at Studer’s home where Gable came in ranting, but it had nothing to do with Michael Francke. Rather, Gable said he would kill Larry Kessell over a drug deal. Id. Ringler, Walsh, Studer, and Gable were all present. Id. In fact, Studer explained that on that same night Gable locked himself out of his own car and, ironically, given the State’s theory at trial, Dan Walsh had to help Gable gain access to the car with a coat hanger. Id. But Ackom employed the polygraph-confront-interrogate process, polygraphing Studer at least five more times, and, predictably, Studer’s statements changed incrementally: First, Gable never used the name “Francke.” Then, after more interrogation, Gable may have mentioned an “official.” Then, Gable mentioned “taking someone out” and Studer assumed it was either Francke or Larry Kessel. Several polygraphs later, Studer corroborated
Perkins’ statements about the December 1988 incident, telling police that, during the rant, Gable talked about killing Larry Kessell and someone high-up in Corrections, finally satisfying Ackom.
Id. at 165-69, 352-55.
Further, the Task Force flew Dan Walsh to Oregon from Ohio, where he was living, picked him up at the Portland airport, and drove him directly to Salem to be interviewed about the
December 1988 incident. Walsh had not been contacted since five months earlier when he told police he had no information inculpating Gable. Similar to Studer’s initial statement about this
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incident, Walsh said an incident did occur. Gable came into Studer’s home ranting that he would
“off” someone. Walsh did not know who Gable was talking about but thought it was “someone important.” Gable left and then returned immediately, saying he had locked his keys in his car, and offering $10 to anyone who could get them out. Studer and Walsh used coat hangers to retrieve the keys. Pet. Ex. E at 162, 270.
Ackom polygraphed Walsh on this statement and confronted Walsh, saying the test showed
Walsh lied when he denied that Gable used the name “Francke” and that the test showed Walsh was withholding information. Id. at 415-416. In response, Walsh said he “guessed” that Gable used the name “Francke” in connection with who he wanted to kill. Id. In the same interview,
Walsh said that Gable had confessed to the murder the previous summer, implicating Gable for the first time. Id. The following day, after at least five hours of polygraph testing, confrontation by Ackom, and intense interrogation, Walsh had provided all the information to which he testified at trial. Id. at 272-77, 417-22.
5. The Common Experiences Of The Witnesses Bolster The Recantation Evidence.
There are many consistencies among the explanations of the recanting witnesses as to why they would lie to investigators or to the jury at trial. There is one universally common theme: each witness was pressured by police. The witnesses described the following pattern of interrogation that is borne out by the police reports of their interviews and polygraph examinations:
Non-inculpatory statement about Gable,
Subsequent interrogation,
Followed by a polygraph examination,
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Followed by confrontation by the examiner with results that purportedly show they lied, and
Additional interrogation resulting in changes in the details of their statement.
For most, this process was repeated until the witness’s story was molded into that to which he or she testified at trial. Pet. Ex. B at 11. “Via this process, some examinees were provided information obtained from other witnesses and suspects.” Id.48 It is telling that most of the recanting witnesses initially told the police they had no information implicating Gable in the murder, but also readily “snitched” on him, telling police about his other crimes. Moreover, that their statements had to be transformed through several subsequent interrogations and polygraphs to get to the story that would be their trial testimony undermines the reliability of that testimony.
All of this occurred in repeated violation of “[t]he fundamental requirement that once an examiner confronts the examinee and accuses the examinee of lying, that examiner should not conduct further polygraph examinations.” Id.at 12. Raskin explains: “[a]fter failing a test, such individuals are more likely to provide a statement that is what the person feels the examiner wants to hear even if it is not accurate.” Id. at 11.
The sheer number of polygraph examinations of the “material” witnesses is extraordinary.
As Raskin notes: “Each of the material witnesses was polygraphed multiple times in a single day or multiple times over the course of several days. Swearingen was polygraphed twice in one day on six different occasions and three times in single day on a separate occasion. In fact, during one
48 During a period when the Task Force was interviewing Janyne frequently, Ackom asked Janyne during a post-polygraph interview if she thought Gable committed the murder, and her response is telling: “[t]he more she hears from the investigators, the more she realizes that it is possible that he killed Francke.” Pet. Ex. E at 452-55.
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stretch of time, Swearingen was polygraphed 10 times in 5 days. On two other occasions, she was polygraphed 3 times over the course of 2 days. Gesner and Studer were each polygraphed three times in a single day. Walsh, Childers, Keerins, and Harden were each polygraphed twice in a single day, and, at one point, Harden was polygraphed 4 times over the course of 5 days.” Pet. Ex.
B at 11, 13 & n. 19.49
Witnesses were yelled at and called liars, threatened with new charges and jail, and were fearful that they would be charged with crimes relating to the Francke murder if they did not cooperate. Others wanted assistance with unrelated charges they already faced. Childers and
Gesner both received legal advice from their mutual attorney that they should cooperate with the
State. Lengthy and a seemingly endless string of interrogations left witnesses feeling that the only way to get the police to leave them alone was to “tell them what they wanted to hear.”
Moreover, it was not just those who became the State’s trial witnesses who were subjected to psychologically coercive interrogations, other witnesses described similar experiences, including some who submitted affidavits to the trial court attesting that the Task
Force used the same interrogation tactics on them. Pet. Ex. F at 1-25. Like the “material” witnesses, these witnesses described being pressured to change their story to conform to statements made by other witnesses, and being told they failed polygraph examinations when
49 Local polygrapher Ken Simmons, who reviewed some of the polygraphs in the case at the request of the Willamette Week in 2004 and who had conducted the first polygraph of Swearingen as noted [above], told that newspaper: “I’ve done polygraphs for 29 years, and I haven’t seen anything like this.” Budnick, Nick, Polygraph Expert Questions Francke Investigation Tactics, Willamette Week (Dec. 1, 2004), available at http://www.wweek.com/portland/article-3881-.html#. “Some of the techniques that are used here are simply unacceptable . . . . These just aren’t things we would do [today]. I’m surprised they would be done then.” Id.
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they knew they were being truthful. Id. The trial court ultimately refused to permit testimony at trial about the Task Force’s interrogation tactics. Tr. at 8787-98.
For some, barriers to implicating Gable were lessened because witnesses believed Gable was a police informant (a “rat” or a “snitch”). Many witnesses expressed paranoia or a mistaken belief that Gable had acted as a police informant against them, a false belief which appears to have been perpetuated by the media, jailhouse gossip, and the police. Some feared Gable would snitch on them if they did not snitch on him first.
When police presented these witnesses with a choice between their own freedom and
Gable’s freedom, it is not surprising that they chose their own. Although most of these witnesses were acquaintances of Gable, they were also convicts who were in and out of custody and faced legal problems of their own, had not known him long, and whose only real tie to him centered around methamphetamine use.
6. The Scientific Evidence, Together With The Recantation Evidence, Supports A Finding Of Innocence.
The recantations are best viewed through the lens of the investigation and the interrogation practices that produced now-recanted witness statements. As Dr. Raskin concludes: “It is abundantly clear that polygraph testing procedures conducted in this investigation were fundamentally and seriously flawed.” Pet. Ex. B at 16. Problems in the administration of the tests, such as examiners confronting witnesses and repetition of tests, were pervasive. Id. at 5, 11.
Moreover, the polygraph test formats employed in this case have been shown in scientific studies to be invalid and the American Polygraph Association (APA) views them as unreliable. Id. at 4-
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5.50 According to Dr. Raskin, the Task Force improperly used polygraphs as a “psychological club
. . . to elicit statements from witnesses.” Id. at 16-17.
It is not clear whether Ackom (and other Task Force investigators) believed in good faith that they were achieving accurate investigative results, but they certainly could have. Even if they were well intentioned, once the investigation began to focus on Gable, it appears that the investigators suffered from tunnel vision and facts that were incompatible with the Task Force’s theory of Gable’s guilt were overlooked.
In any event, the investigator’s actions were highly likely to produce false polygraph results and, ultimately, false witness statements. According to Raskin, the problems with the polygraphs
“were greatly exacerbated by investigators coercing examinees to create false statements” which happened through the provision of “information to examinees regarding what [investigators] wanted them to state, telling [subjects] that they were lying when they were actually truthful by not giving desired responses, abusive and frightening interrogations, serious threats of prosecution and prison, threats concerning their children and families, promises of rewards, and actual rewards.” Id. Dr. Raskin concludes: “As a result, the unethical and flawed polygraph testing procedures combined with improper and coercive interrogations appear to have provided the means to shape their statements in order to obtain false testimony from the examinees.” Pet. Ex.
B at 16.
50 The invalid formats include: the Matte and Reid formats, any Peak of Tension tests that searched for new evidence, tests where the examinee is asked to answer the same question “yes” and “no,” and the statement-verification technique that Ackom used to confirm the veracity of most of the witnesses’ final story. Pet. Ex. B at 4.
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Unfortunately, what occurred in this case is not unique among murder cases from the
1980s. Studies show that recantations like those presented by Gable are strong indicators of a wrongful conviction.51 Recantations most frequently occur in murder cases and, particularly, in cases where the defendant does not confess (presumably because a confession is generally viewed as such strong evidence of guilt that less collateral investigation is undertaken). Gross & Gross, supra note 68, at 4. “Supposed eyewitnesses” like Harden and “jailhouse snitches or other informants or witnesses who claim the defendant confessed to them” are the witnesses most likely to recant. Id. at 6. These recantations are highly correlated (91%) to false testimony. Id. at 9.
Cases where witnesses recanted often also involved “widespread misconduct on the part of police and prosecutors who elicit the false testimony that is later recanted.” Id. “Witnesses are pressured, threatened, subjected to violence, offered secret deals such as reduced charges in the case at hand or for other crimes, or otherwise coerced or persuaded to falsely accuse the defendant.” Id. at 6.
Public pressure to solve a case and the organizational culture of a police or district attorney’s office can also affect the process. See C. Ronald Huff et al., Convicted But Innocent: Wrongful
Convictions and Public Policy (1996).
Through this lens, it appears that, in this case, both the witnesses’ nature and circumstances and, possibly unwittingly, the interrogation practices of the Oregon State Police, contributed to these witnesses falsely implicating Gable. At trial, the State explained that its “material” witnesses
51 Samuel Gross & Alexandra Gross, Witness Recantation Study: Preliminary Findings, Nat’l Registry of Exonerations, 9-10 (2013), http://www.law.umich.edu/special/exoneration/Documents/RecantationUpdate_5_2013.pdf (hereinafter “Gross & Gross”) (preliminary findings of study of 1068 exonerations, 250 of which involved recantations).
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lied during their initial interviews when they did not inculpate Gable because they did not trust the police and did not want to be labeled as “snitches.” Of course, these witnesses had no reluctance about “snitching” on Gable about drug or other crimes, they only denied knowledge about the
Francke murder. In light of evidence about the course of the investigation and the recantation evidence, the better explanation is that these witnesses told the truth initially.
C. The Remainder Of The Evidence The State Marshalled Against Gable Does Not Support His Conviction.
The innocence analysis requires the Court to look at the totality of the evidence—both previously presented and newly available or presented—to determine what a hypothetical jury would do if faced with the full story. The particularized evidence of guilt presented by the State at trial came from the testimony of Janyne Gable, Linda Perkins, and the “material” witnesses, including Harden’s purported eyewitness account and the various uncorroborated confessions relayed by the other witnesses. As demonstrated above, many of those statements were incredible on their face, but, when viewed in light of the process that generated them and the subsequent recantations, no jury would find that such evidence supports Gable’s guilt beyond a reasonable doubt. Below is a discussion of the remaining evidence that the State marshalled against Gable, including Gable’s own statements, evidence about Gable’s familiarity with and access to the area around the crime scene, and evidence that a kitchen knife may have been the murder weapon, none of which supports a finding of guilt beyond a reasonable doubt.
1. Gable’s Statements To Law Enforcement Are Indicative Of Innocence.
At trial, the State used Gable’s statements to law enforcement to make several points: (1) to suggest they were indicative of guilt, i.e., so-called “slippage,” (2) to argue Gable’s statements
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corroborated the testimony of the State’s witnesses, and (3) to highlight that Gable had no credible alibi because he had given police “inconsistent” statements about his whereabouts.
a) The So-Called “Slippage” Statements Do Not Indicate Guilt.
At trial, there was testimony that Gable had never explicitly confessed to law enforcement during the many hours of interrogation. However, the State focused on tiny fragments of the overall statements that it argued were tantamount to a confession. The defense failed to respond to the tactic by highlighting Gable’s protestations that he was innocent. Even worse, the defense actually used the term “slippage” in cross-examination and closing argument, Tr. at 8728-29, 9979-81, allowing the State to embrace the term during rebuttal closing, having already introduced the concept in its closing argument. See, e.g., Tr. at 9885, 9909, 9917. The State argued in rebuttal:
Well, Frank Gable slipped up a couple of times, like when he told them the back of my brain says I did it and the front of my brain says I didn’t. When he tells about Jodie and Shorty saw me that night. When he tells about Earle [sic] saw me that night. When he tells about me and God. The only two people know who killed Michael Francke, me and God. If that is what Mr. Abel means about slippage, then I agree.
Tr. at 9993-94.
When viewed in context, however, each of the statements that the State asserted was self- inculpatory “slippage” (i.e., statements the State believed indicated Gable was mistakenly admitting guilt or otherwise indicating a guilty conscience) has an equally or more plausible innocent interpretation. For example, after he was interrogated about the murder in September
1989, but then arrested for an assault of his wife, he was transported to a hospital for a blood draw for the Task Force. The doctor told the nurse to make sure she did not make a mistake that would end up helping a lawyer get him “off.” Gable responded that “no lawyer could get him off.”
Thereafter, Gable overheard the doctor say Gable was there for murder. In response, Gable
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allegedly became pale and started crying uncontrollably and said “I wasn’t [expletive] arrested for murder.” Tr. at 7365-66, 7371. To be sure, he had been arrested for assault, not murder, and his comment regarding no lawyer getting him off was in reference to the assault to which he had admitted.52
Moreover, the so-called “slippage” statements were made by Gable during interrogations in which the Task Force was using techniques—isolation of Gable, long interrogations, sleep- deprivation, minimization, and maximization of the evidence against him—designed to wear
Gable down mentally and physically. Pet. Ex. B at 5-9; Tr. Vol. 30 (April 5, 1991), at 344-71. As with the polygraph test failures, these other tactics also had their intended effect of communicating to Gable that his situation was hopeless and leaving him in a vulnerable mental state. E.g., Tr. at
7303-30, 7342-7361; Resp. Ex. 292, at 262, 312; Pet. Ex. E 13-18. Gable’s response, however, was not to falsely confess to the crime, but rather to repeatedly claim he was being falsely accused—“railroaded.”
For example, when his interrogators “minimized,” telling Gable it was understandable to prowl the car as he walked by and suggested he got caught in a bad situation but did not intend to kill anyone, Gable responded: “No way.” Tr. at 7316.53 Likewise, when the interrogators
52 Some statements attributed at trial to Gable during his September interrogations do not appear in the relevant Task Force reports. For example, at trial polygrapher Fox testified that Gable told him: “I was wondering when you sons of bitches were going to try to hang this on me.” Tr. at 7266-73. Nothing similar to this quote appears in Fox’s report. Pet. Ex. E at 3-7. Moreover, another Task Force member testified that Gable made a comment that he thought the Task Force was going to shoot him or bring the SWAT team. Tr. at 7279-84. This statement does not appear in the relevant report. Resp. Ex. 292, at 253-57. Defense counsel did not draw out these contradictions through cross-examination. 53 Notably, the interrogator posed a long hypothetical to Gable which was nearly identical to what Crouse explained happened, as discussed more in Section III.D.1 below.
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“maximized” the evidence against him, Gable’s responses were still those of an innocent man. For example, police told Gable they talked to “countless” witnesses and all the evidence their investigation was turning up was pointing to him, that lots of people say he confessed, and that they have two people who saw him run from the scene of the murder. Id. at 7486, 7512, 7578.
Gable responded: “I’m not worried. I know I haven’t done the crime.” Id. at 7487. With regard to evidence that people had said Gable confessed, Gable responded that those people were “bona fide” liars. Id. at 7580-87 (Gable: if five people are telling you that he confessed, than “you have five bona fide liars.”). With regard to Keerins in particular, Gable said “I have got five or six witnesses that -- the story that this guy, Keerins, is telling you is not true. It’s a lie.” Id. at 7487.
With regard to evidence of a supposed eyewitness, Gable responded: “Well, nobody saw me because I didn’t kill the guy.” Id. at 7576.
Indeed, Gable’s interrogators admitted that Gable adamantly maintained his innocence. Id. at 7299, 7625, 8691-92, and conceded Gable repeatedly told police they have the “wrong guy”, that he was being “railroaded,” or that they were trying to “pin” a murder on him. E.g., id. at 7338
(Gable: police are “trying to pin a murder on [me]”). However, one interrogator explained to the jury that Gable was “in denial mode.” Id. at 7625. A review of Gable’s many interrogations reveals that Gable’s steadfast denials of involvement and of confessing to anyone were genuine.
E.g., Tr. at 7629-30 (Gable: “You have got the wrong guy, Fred.”); Resp. Ex. 292, at 164 (Gable:
“It’s a shock. You guys are wasting a lot of time. You have a serious killer out there running free.”); accord Tr. at 7512 (“serious killer”); see generally Resp. Exs. 292-94 (Gable Witness
Books).
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The main example of so-called “slippage,” touted by the State in both its opening statement and in closing argument, came from the following colloquy between Gable and Ackom. See generally Tr. at 5907-08, 7351-54, 9909; see also Pet. Ex. E at 13-18. Gable told Ackom that his
“mind keeps saying you did it, you did it, you did it, and all of the time I know I didn’t. When
Ackom asked him to explain, Gable responded: “. . . it’s like the back part of my brain . . . says I did it, and the front part of my brain says I didn’t.” Tr. at 7352. At that point, Ackom turned to religion, asking Gable if he thought God would forgive the murderer, to which Gable responded that God “forgives everyone.” Id. at 7353. Gable clarified: “Yea, but I'm not saying I did it. I will go to the end of the trial saying that. There are only two people that know who killed Francke. Francke and God.” Id. Ackom replied that Francke could not know who killed him because he was dead, to which Gable responded, looking puzzled, “well, then there are only two people who know Francke— yeah, me and God.” Id. Ackom told Gable this was a “Freudian slip.” Id. Gable responded that he did not know what Ackom meant by that, but that he did not kill Francke and all that he knew about the crime scene came from what he read in the newspaper. Id.
Viewing this statement in context, including comparing Ackom’s report of this conversation and the trial transcript, supports an innocent interpretation of this statement. Compare Pet. Ex. E at
16-17, with Tr. at 7353-54. It is also important to note that this back-and-forth between Gable and
Ackom came at close to 3:00 a.m. after nearly ten hours of interrogation. In fact, after six hours of interrogation, Gable was transported back to the jail and became suicidal. When Ackom learned
Gable was suicidal, he immediately had Gable transported back to his location and re-started the interrogation. During the subsequent interrogation, Gable was extremely distraught. He “wept openly,” at times resumed the fetal position, and repeatedly made statements that they would “fry”
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or “roast” him for the murder, all the while maintaining that he did not kill Francke. Pet. Ex. E at
13-18; Resp. Ex. 292, at 312. The “me and God” colloquy took place during the third hour of that latter interrogation. Social science explains the phenomenon of the “persuaded” or “internalized” false confession, which occurs “where, through interrogation, an innocent but malleable suspect, who is told there is incontrovertible evidence of his involvement, comes to doubt his own memory and believe he may have actually committed the crime.” Pet. Ex. B at 8. While the above colloquy between Gable and Ackom is best interpreted as an inarticulate denial of involvement by a mentally exhausted man.
b) Gable’s Statements Did Little More Than Corroborate Benign Facts About His Life Known To His Associates.
The State argued that Gable’s statements to law enforcement corroborated the testimony of the State’s witnesses. Tr. at 9918. However, the State used benign true facts about Gable’s life that would have been known to most anyone who knew him, and which Gable acknowledged during police interviews, such as that he was friends with Gesner, Walker and Childers, that he wore prescription sunglasses, and that he was familiar with the OSH grounds, to support this point.
For example, in closing argument, the State said:
And then do you recall that same interview he winds up basically saying -- talking about the sunglasses. And that’s when he says later on in the interview, hey, Fred, if anybody saw me that night, they would have told you I was wearing sunglasses. I always wore sunglasses during that period of time. If anyone saw me, they would have said I had sunglasses on. This is December 22nd, 1989. A month prior, November 22nd, 1989, Earle [sic] Childers testified that – in that statement, he told the State Police that Frank Gable was wearing sunglasses the night he saw him drive away from the Dome Building or away from the Medical Center parking lot.
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Tr. at 9915; see also id. at 9918 (“Earle [sic] tells you that basically he saw Frank Gable the night of January 17, 1989. He was wearing sunglasses.”); accord Tr. at 5915-16 (explaining Childers statements match what Gable told police, and admonishing the jury to “remember the sunglasses”).
In fact, during its closing argument, the State repeatedly referred to what “Frank Gable tells you [the jury],” touting these benign facts about his life, the supposed confessions related by the State’s witnesses, and Gable’s statements relayed through law enforcement as corroborative of the statements of other witnesses. E.g., Tr. at 9838 (“And you need to keep that background in mind as we start talking about what these witnesses tell you they saw and what Frank Gable tells you he does.”), 9864 (“Frank Gable tells you that . . .”), 9869 (“Frank Gable tells you that.”), 9889, 9900 (arguing that it “makes sense” that Gable would have Gesner dispose of evidence because “Frank Gable told the State Police” that Gesner was his “main connection” and because “Frank Gable tells us all, there will never be any physical evidence in this case.”). This use by the State of Gable’s statements suggested the State’s evidence was more mutually corroborative than was justified by the underlying facts, particularly in light of the recantations.
2. Gable Had An Alibi For 7:00 P.M. On January 17, 1989.
Additionally, the State highlighted Gable’s many statements to law enforcement about where he was at the time of the murder to show he had no alibi. Viewed in context, including in light of information that Janyne was providing to the Task Force and to Gable contemporaneously, these statements relied upon by the State are not indicative of guilt. Further, as discussed below,
Gable did, in fact, have an alibi.
a) Evidence Presented At Trial.
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At trial, the State made much of the fact that Gable had given what the State treated as inconsistent statements regarding his whereabouts on the night of the murder, stating in closing:
[H]e tells a lot of different people a lot of different things about where he was or wasn’t and, basically, he starts out saying I don’t know where I was. I don’t know what I was doing. And then he goes on to the crank party with the twenty or thirty people at his house but he can’t tell you who any of the . . . people are, then he goes on to say I was with Kris, and then he goes on to say I was maybe at Shelli’s, maybe I was in Portland, maybe I was just at home, and at one point . . . one of the officers . . . indicated he could have been on a rocketship to the moon as far as he knew). Lots of different places, lots of different stories from Frank Gable as to where Frank Gable was the night of January 17, 1989.
Tr. at 9912-13.
When Gable’s statements about his whereabouts are viewed in light of two critical facts, they become understandable. First, Gable was not asked about his whereabouts on January 17 until nine months later, in mid-September. It would have been hard for any person—let alone a cronic methamphetamine user—to remember where he was on a particular Tuesday night the previous January. Indeed, as noted above, Janyne had not remembered that she left work early on
January 17 when she was asked during a canvass of OSH employees just one week after the murder.
Second, Gable’s initial response was that he was at home. Resp. Ex. 292, at 567 (Bain:
“You told me you went home and stayed home.”). However, Janyne caused him to question his recollection when she told Gable and the Task Force that she believed she was home alone that night. As Janyne explained to the Task Force, after Gable learned he failed the first polygraph, he had racked his brain trying to figure out where he was on the night of the murder, alternating between asking Janyne: “[d]on’t you remember I was at home that night?” and saying that he could not remember his whereabouts. Pet. Ex. E at 243. Between his two polygraphs, Janyne told Gable
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that she thought he was out with Chris Warilla on the night of the murder. Id. With regard to
Gable’s whereabouts on January 17, Janyne told the Task Force: “I don’t recall Frank being home that night. He may have taken me to the doctor then took me home and left. That’s if I went to the doctor that day.” Id. at 238.
Thus, in his next interrogation, when Ackom pressed Gable for an alibi, Gable then stated, presumably based on Janyne’s supposition, that he “had to be with Chris that night” because he was “always” with Chris. Id. at 14-15. Gable explained: “I almost got a divorce back then because
I was seeing so much of Chris.” Id. Ackom followed up: “So you were with Chris that day and evening?” Id. Gable said hesitantly: “I don’t know man, I was either with Chris or home, but I believe I was home with my wife.” He then named several people, including Kevin Walker,
Russell Eastep, and Jason Farm, who were “probably” at his home with him and Janyne, dealing or using drugs and then repeated “Yea, I believe I was home. All I can tell you Fred, is I wasn’t on the hospital grounds.” Id.; see also Tr. at 7349-51.
During his next interrogation, Gable repeatedly stated that he could not be certain where he was that day nearly a year earlier. He said it was “possible” that he was home, and that he was
“not sure” that he was with Chris, and that “[t]here’s days I couldn’t remember if it was Tuesday or if it was Thursday or if it was Sunday.” Resp. Ex. 292, at 567. He described the things he normally did, selling methamphetamine and dumpster diving, spending time with Shelli Thomas and Chris, and driving his wife to and from work. Id. At one point in the interview, Gable sarcastically said he could have been on a “rocket ship ride to the moon and back.” Id. Throughout the interviews, however, Gable repeatedly said he was certain of one place he was not—the Dome
Building on the OSH grounds. Tr. at 7588-89; Resp. Ex. 292, at 568.
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b) New Evidence Of Alibi.
Despite the absence of an alibi at trial, there was evidence available, as clarified through new evidence presented in this proceeding, to establish an alibi. Gable was indeed at home when
Francke was murdered at 7:00 p.m. on the night of January 17, 1989. According to a new affidavit of Janyne Gable, Gable was home from dusk (approximately 5:00 p.m.) until at least approximately 8:00 or 9:00 p.m.54 This affidavit is included in Petitioner’s Exhibit A, at pages 2-
17. Other evidence discussed below confirms Gable was home to take a phone call shortly before
6:00 p.m., he had several acquaintances at the house to conduct a drug transaction between 6:30 p.m. and 7:30 or 8:00 p.m., and he was partying at home with other meth users until later in the evening when the crowd left en masse.
Gable did not become a suspect, and, therefore, was not asked for an alibi until many months after the murder when it would have been hard for any person to remember where he was on a particular Tuesday night eight months earlier—unless that day had been marked by a significant event that would trigger the person’s memory. Just that sort of event occurred in the lives of Frank and Janyne Gable on the evening of January 17, 1989. Specifically, the Gables caused “excessive noise” at their residence, which was the “last straw” for their apartment manager. The following morning, the manager served them with an eviction notice.
Unfortunately, neither the State nor the defense used the eviction notice to jog the memory of
54 Sunset on January 17, 1989, would have been at 4:59 p.m. Weather History for Salem, Oregon, Weather Underground, http://www.wunderground.com/history/airport/KSLE/1989/1/17/DailyHistory.html?req_city =Salem&req_state=OR&req_statename=Oregon (last visited October 10, 2014).
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Gable or Janyne that the night of the murder was the same night they were cited for “excessive noise.”
As a result, Janyne testified for the State at trial that Gable was not home from the time he brought her home from work at mid-day on January 17 until it was time to take her to work the following morning. Tr. at 7728-29. Janyne testified that she recalled taking a nap until dark and waking up to an empty house and being worried that Gable would not come home in time to take her to work in the morning, and tied it to the date of the murder because, when they arrived at the
OSH grounds, there were police and police tape everywhere.
Janyne was neither cross-examined nor shown available documents—specifically telephone records and the eviction notice—that would have refreshed her recollection of the night of January 17. Specifically, that night, the Gables had numerous guests and a neighbor, Scott
Dowd, threw a plate from his house, causing noise that others attributed to the Gables. The resulting noise complaints led to the Gables receiving an eviction notice the following day.
About six months prior to trial, the defense asked Janyne about the plate being thrown and she stated:
She recalled the people downstairs and the plate being thrown through the window, though she did not recall the date. She commented that the landlady came and talked to them about the plate because she thought it had been Janyne and Frank. She said that was kind of the last straw for the landlady.
Resp. Ex. 293, at 396 (emphasis added).
Janyne now submits an affidavit in this proceeding swearing that, had she been shown the
January 18 eviction notice at trial, she would have testified that Gable “had guests at the house on the previous night. In particular, a group of acquaintances showed up at our apartment around
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dark and stayed until 8:00 or 9:00 p.m., when the crowd, including Frank, went elsewhere.” Pet.
Ex. C at 2.
Further, had Janyne been shown telephone records reflecting a five-minute telephone call between Kevin Walker’s place of employment and the Gable home that took place at 5:38 p.m. on
January 17, 1989, she would have testified that “Mr. Walker spoke with Frank Gable at our residence at 5:38 p.m. on the evening of January 17, 1989, and again at 9:27 a.m., on the morning of January 18, 1989.” Pet. Ex. A at 2-3.55 Phone records could also have established that Janyne was wrong that Gable was not home all afternoon because Gable was home to make a 2:30 p.m. phone call to his friend Mike Sims. Pet. Ex. E at 456-58.
The trial testimony of the Gables’ apartment manager is consistent with this alibi evidence.
The apartment manager testified that two or three tenants complained to her on the morning of
January 18 that there was “too much noise, traffic in and out, the night before” coming from the
Gable’s apartment, meaning people and cars coming and going. Tr. at 7222, 8653-56. As a result
55 The post-conviction trial court found that: [Gable’s defense counsel] Robert Abel testified that after Janyne testified and the Defense reserved the right to call her at a later time, he re-interviewed Janyne and he decided against recalling her because it was apparent she was going to remain firm in her testimony. Mr. Able [sic] also felt that even though they did have phone records of calls associated with the Gable house, those phone records did not establish the presence of Mr. Gable.
Resp. Ex. 345, at 78 (internal citations omitted). Janyne told the Federal Public Defender investigator that she did not meet with defense counsel after her testimony. Pet. Ex. C, at 4. Indeed, there is no investigation report or other indication that Abel met with Janyne during trial. In fact, the only defense reports of interviews with Janyne describe meetings on November 20 and 29, 1990, at the latter of which Janyne refused to talk to the defense without law enforcement agents being present. In that interview, Janyne confirmed that the plate-throwing incident was the “last straw” for their apartment manager, and that she did not know when it occurred. Resp. Ex. 293, at 362-67.
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of these complaints, she served an eviction notice on the Gables on the morning of January 18,
1989, citing “excessive noise” on the night of January 17. Id.
Defense counsel failed to corroborate the apartment manager’s testimony with evidence that Gable himself was home making the noise with houseguests (rather than Janyne being home alone as she had testified). In fact, Janyne’s testimony that she was home alone appears to conflict with the apartment manager’s claim that their home was causing “excessive noise,” but defense counsel failed to develop this issue in cross-examination or to argue it in closing argument. Had
Janyne been asked about the eviction notice on cross-examination, she would have confirmed that
Gable was home and partly responsible for the noise. In her newly presented affidavit, Janyne states: “It was a memorable night because there was a dispute between one of our guests and a neighbor that spilled out onto the stoop. The dispute was the last straw for the apartment manager and it led to the Legal Notice to Quit the next day.” Pet. Ex. A at 2-4. Consistent with her trial testimony, Janyne confirmed that he went out later—after the time of the murder—and returned the next morning. Id. at 3.56
The Gables’ downstairs neighbor at the time, Scott Dowd, who was not called to testify at trial, further corroborates Gable’s alibi. On January 17, 1989, Gable owed Dowd money for a prior drug deal. Dowd went upstairs to Gable’s apartment when he got home from work around
5:30 or 6:00 p.m. to collect the debt but did not speak with Gable. Pet. Ex. G at 19. Dowd thought
56 It is understandable that Janyne Gable’s memory of that night was unclear because it was not until nine months after the murder that she was first interviewed about her husband’s possible involvement in the Francke murder. It also should be underscored that there is no love lost between Janyne and Frank Gable. As the record reflects, they had a volatile marriage, plagued by drug use and abuse. Janyne had divorced Gable prior to his trial.
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Gable was not home so he returned later in the evening, but was again turned away, this time because Gable was conducting a drug deal and told Dowd to come back. Id. at 14. Dowd became increasingly frustrated that Gable was avoiding paying him back, so even later that night, in a frustration-fueled fit, he tried to get Gable’s attention by throwing a plate outside into the parking lot of the apartment complex, causing it to shatter with a huge “racket.” Id. at 13. Dowd believes he threw the plate after 10:00 p.m., but he is not certain of the time and it could have been later.
Id. Dowd also believes that the noise he made, along with “foot traffic” and cars in the lot from people going to the party at the Gable’s house, were the reasons the Gables received an eviction notice the following day. Id. at 17, 20.57
Kevin Walker, who recanted his false trial testimony that he did not see Gable on January
17, 1989, further corroborates Gable’s alibi. Walker corroborates Janyne’s statement that Walker called Gable’s home and spoke with Gable for five minutes starting at 5:38 p.m. (and again for five more minutes the following morning at 9:27 a.m.) Pet. Ex. E at 259-62. As Walker told the
Task Force in early 1990 before he implicated Gable in the murder, these telephone conversations related to a “dope deal.” Id.
Walker took part in the drug deal at the Gable home that night—the same deal that caused
Gable to put off Scott Dowd’s debt collection efforts. According to Walker’s recantation, he,
57 Janyne, the apartment manager, Dowd, and Gable himself are consistent that the plate throwing and excessive foot traffic and noise on the night the night before were the reasons for the eviction notice on January 18. In his November 3, 1989 interview with Detective Bain, Gable confirmed that the plate throwing incident and the noise that night led to the Gables’ eviction. Resp. Ex. 294, at 176. While Janyne and Gable (and others in their apartment complex) consistently linked the plate-throwing event to the eviction notice the following day, they did not link these two events in their personal lives to Francke’s murder. Nor did the investigators or attorneys provide the link for them.
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Gable, another man named Robert Cornett, and material witness Mark Gesner, were at Gable’s residence “somewhere around” “6:30 . . . 7:00 . . .7:30” on January 17 to do a drug deal. Pet. Ex.
A at 64, 65. Walker says he was in Gable’s apartment for a “minimum of half an hour, but in the apartment complex, more like, probably an hour or an . . . hour-and-a-half.” Id. at 65. Thus,
Walker independently corroborates Dowd’s statements and Gable’s alibi, which was also corroborated by a defense interview of Gesner. In a recent interview, Cornett also confirmed that he was at Gable’s home for a drug deal. Pet. Ex. C at 7. He recalls that he only went to Gable’s home one time, and that it was in the evening, before 8:00 or 9:00 p.m. on a night in January 1989.
Id.
In January 1991 interview, Mark Gesner stated that he had been at Gable’s house on the evening of January 17, 1989, as well, and that he was aware of the plate-throwing incident, but that it had occurred after he left. Pet. Ex. G at 27 (“When I asked him if he remembered a plate being thrown through the window, he said ‘That happened after I left.’”) (emphasis added).
Gable repeatedly told the Task Force he was home with his wife on the night of the murder.
He also said that he had guests at the house doing drugs. When Janyne told him she did not think he was home, he racked his brain trying to think of where else he might have been. However, given the above evidence that Gable was at home early in the night, that he did have a loud party and drug trafficking at his home, and that he left with the crowd and stayed out until dawn, his various statements to police are actually quite accurate. At trial, however, the State made much of the fact that Gable had given what the State treated as inconsistent statements regarding his whereabouts on the night of the murder. Had either Janyne or Gable been told that they received the eviction notice the morning after the murder, their seemingly contradictory statements on their
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whereabouts would have been reconciled—they would have both agreed they were home. With some basic investigation and use of the eviction notice, the alibi could have been established at trial and the State’s complaints about inconsistencies would have been debunked.
3. The Remainder Of The Evidence Presented By The State At Trial Was Neither Inculpatory, Unique To Gable, Nor, In Some Instances, Relevant.
After the testimony of the material witnesses and Gable’s own statements, the remaining evidence that was presented by the State at trial was neither unique to, nor inculpatory of Gable, nor, for the most part, relevant to the State’s theory of the crime. Evidence falling into this category included: (1) Gable’s familiarity with the OSH campus, Dome Building, and the OSH underground tunnel system; (2) Gable’s access to keys that opened some doors at OSH, including some at the
Dome Building; and (3) Gable’s access to a kitchen knife, which may or may not have had the general characteristics of the murder weapon. None of this evidence supports a finding of guilt individually or even collectively with the other evidence in the case.
In fact, these three points do nothing to distinguish Gable from thousands of OSH and
ODOC staff, OSH patients, ODOC inmates, or anyone else that had a prior or current relationship with OSH and happened to own a kitchen knife. Tellingly, identical evidence was available against other suspects, many of whom had better motives and opportunities to commit the crime. See generally Appx. A. For example, Curtis Grecco, from whose home a 911 call saying he was the culprit was made just days after the murder, was familiar with OSH campus, the Dome Building, and the tunnels connecting the campus underground, because he, like many inmates, had participated in a boxing club in the basement of the Dome Building. Id. at 1-19, 236-53. Police seized several kitchen knives from Grecco’s home. Id. Police even deemed “consistent” the tread
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from a pair of Grecco’s shoes to a partial shoe print found in the grass between the North Porch and the parking lot of the Dome Building. Id.
a) Evidence About Familiarity, Access, And Keys Allowed The State To Present A Much Stronger Case To The Jury Than Was Supported By The Evidence At Trial.
The State’s theory of the case as summarized in closing argument was almost exclusively based on inferences drawn from inferences based on circumstantial evidence. The State’s theory was that, a month before the murder, Gable requested that his wife use her OSH computer access to search the Department of Corrections computer system for information on informants, but she refused. Not to be deterred, Gable came to the Dome Building looking to steal “snitch papers”
“either off Michael Francke’s person or out of Michael Francke’s car,” so that he could trade this information to the crank crowd for drugs and notoriety. Tr. at 9834-38. Even though there was no evidence Francke carried confidential information in his vehicle, the State argued: it is “not a coincidence that he [Gable] happens to be in Michael Francke’s car. He wants information.” Id. at 9837. The State coupled Gable’s familiarity with the Dome Building and with his lifestyle:
They don’t have any money. They’re in the process of getting evicted. Whatever he can use to sell on the streets to get more crank to make him a big man with the crank crowd, that’s the kind of information he is after, either off Michael Francke’s person or out of Michael Francke’s car. And you need to keep that background in mind as we start talking about what these witnesses tell you they saw and what Frank Gable tells you he does.
Tr. at 9838; see also id. at 9901.58
58 The eviction notice came the day after the murder as a result of noise the Gable made at the apartment on the night of the murder, so it was not accurate to suggest Gable’s motive for committing the murder had anything to do with his being “in the process of getting evicted.”
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During its closing argument, the State first focused on Gable’s history as an inmate and familiarity with the Dome Building and Michael Francke, stating: “the Dome Building and
Michael Francke was not a stranger or a strange place to Frank Gable.” Tr. at 9834. The State went on to state:
He was very familiar with the Dome Building. He knew it very well. He knew the State Hospital grounds very well. He knew who Michael Francke was. He knew where Michael Francke’s office was. And because he was an inmate in the institutions, and because he was on parole at the time of the murder, he was very familiar with the role that Michael Francke played in the Corrections Division. He knew Michael Francke’s job. He knew the kind of information that Michael Francke could have either on his person or in his car.
Tr. at 9835 (emphasis added). The State made similar remarks during opening statements. See id. at 5902-11.
Although the details were glossed over at trial, the evidence about Gable’s familiarity was based on the facts that Gable’s wife worked on the OSH campus; that he had been to the dentist inside the Dome Building “a couple times” while he was attending the Cornerstone treatment program, which is also located on the OSH campus; that he had worked in the OSH tunnels as an inmate worker making deliveries for approximately two months several years earlier; and that on the days he worked at OSH he would wait outside the Dome Building to be picked up by a van that would return him to the prison release center. Resp. Ex. 293, at 206-07. There was no evidence presented at trial to support that Gable had any more information about Francke’s role or the kind of information Francke would possess than would any other inmate or former inmate have had, much less that Francke actually had any information about informants “on his person or in his car.”
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Likewise, the trial court permitted the State to present the fact that Gable had “access” to
Janyne’s OSH keys as inculpatory, even though there was no evidence that Gable had ever taken his wife’s keys, that Gable or his wife knew the keys opened the back door of the Dome Building, or that the murderer used keys to the building. Finally, the tunnels underneath OSH were irrelevant to the State’s theory that the murder was committed by an interrupted car burglar in the parking lot of the Dome Building. Yet, the very first fact the State mentioned during its closing argument was that Gable knew the tunnel system under the OSH grounds. Tr. at 9834. The second fact mentioned was that “On January 17, 1989, Frank Gable had access to the Dome Building.” Tr. at
9901-02. In this way, the State’s theory was based on a combination of inferences that were too attenuated to be supported by evidence.
b) The Chicago Cutlery Knife.
A significant gap in the State’s evidence was that it could not produce a murder weapon.
The State took a scattershot approach to dealing with the fact that it had not recovered a murder weapon, presenting evidence both that Gesner dumped the weapon in the river, and that Walsh had pawned the knife Gable admitted to using. Given that no knife had been recovered, the State’s expert testified about the general class characteristics of the knife that caused the cuts to Francke’s clothing, business cards and person. Even though it was introduced at trial, the Chicago Cutlery kitchen knife carried no probative value given that, like the generic evidence about familiarity and access, this type of evidence could have been mustered against anyone who possessed kitchen knives. See, e.g., Appx. A at 1-8 (discussing other suspects with kitchen knives).
First, as the State acknowledged, many kitchen knives would have fit the vague characteristics that were known about the murder weapon, so there was nothing special or unique
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about the Gables’ kitchen knives. Indeed, as the State’s criminalist admitted—albeit outside of the jury’s presence—“a common ordinary kitchen utility knife could be the murder weapon.” Tr. at 8318-19.
Moreover, had the Chicago Cutlery knife been seized during the investigation, it may have been excluded by the Oregon State Police Crime Laboratory as too narrow in width. During the investigation of the case, the State’s criminalist proceeded under the theory that the murder weapon was about 1 and 1/8 inches wide. Tr. at 8272. Consistent with that view, knives that were less than one inch wide were sometimes excluded from processing. E.g., Pet. Ex. H at 291-92 (“Of the above [66] knives [seized in the case], those that were single edged, a minimum of 4 inches in length, and between 1 inch and 1-1/4 inch in width were processed.”). The Chicago Cutlery knife was 3/4 of an inch wide at its widest point. Pet. Ex. H at 288. Thus, during the investigation of the case, the State may not have processed a knife like the Chicago Cutlery knife, much less concluded that it could have been the murder weapon.
However, the Chicago Cutlery knife was not seized in the normal course, and, therefore, was not eliminated based on the fact that it was too narrow as were many other similar knives.
Instead, this evidence appears to be the product of an effort to connect Gable with a knife that the
State could point to at trial as the murder weapon. Specifically, on the eve of trial, April 3, 1991,
Janyne was shown dozens of knives that the police collected during its investigation of Gable, and she was asked about any knives that were missing. Id. at 264-67. After finding a missing knife that Janyne would connect to Gable, the State purchased that type of knife. The State’s criminalist
(Hurley) then proceeded to “test” that knife, and about 15 or so others, by stabbing his own
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business cards. He then opined that, unlike the other 15 knives, the Chicago Cutlery was consistent with the murder weapon.
Notably, “processing” of the other 425 knives seized as evidence by the Task Force during its investigation did not involve “stab tests” (using business cards) like the tests the State’s experts performed with regard to the Chicago Cutlery knife. Given the total lack of a scientific approach to this testing, the limited information that could be learned even if done in a scientific way, and the internal inconsistency between the view of the murder weapon during the course of the investigation as compared to the Task Force’s analysis on the eve of trial, no weight should be given to the testimony of the State’s criminalist on this point.
To make matters worse, in closing, the State left the jury with the mis-impression that
Hurley did similar “stab tests” on all of the more than “four hundred” knives, stating:
And so he [Hurley] took some time, since I think he testified there were over four hundred knives that were submitted in this case, he took some time doing some stab tests and some tool mark comparisons to try to determine, if he could, the general class characteristics of the knife that killed Michael Francke.
Tr. at 9925.
The tests by the State’s criminalist that supported his conclusion that the Chicago Cutlery knife was consistent with the murder weapon were presented as scientific and useful in determining the class characteristics of the murder weapon. Neither was true. The State’s expert made at least several critical scientific errors. The State did not consistently test knives seized in the case. Rather, the State’s expert plucked a handful of knives in addition to the Chicago Cutlery knife to represent a variety of knife types seized in the case, including several that did not meet even the undisputed class characteristic that the murder weapon had a single-edged blade. The
State’s expert chose not to test certain knives that were similar to the Chicago Cutlery and would
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arguably have been better comparison models; specifically, Hurley chose not to test a variety of other kitchen knives that had been seized during the investigation. Compare Pet. Ex. H at 264-
270 (seized kitchen knives) with id. at 270-290 (pictures of knives tested, which do not include the seized kitchen knives).
The State’s expert also did not control for numerous variables. While he claimed to have done so by stabbing into the cards as they lay on a soft, flesh-like material and were covered in cloth to represent Francke’s flesh and clothes, he ignored that the actual stab track was far different than just those two elements. The stab that went through Francke’s business cards first went through three layers of clothes on his sleeve, then through his bicep, then through another three layers of clothes on his sleeve, then through another three layers of clothes on his chest, then through the business cards, then through one more layer of clothes, and then into Francke’s chest.
Perhaps most important was that the murder weapon went completely through Francke’s arm before penetrating the cards. Thus, when the State’s expert concluded that some blades were too flexible to penetrate the cards and could not have been the murder weapon, he did not account for the fact that the actual knife may have been stabilized by Francke’s bicep, allowing an otherwise flexible knife to gain the necessary stability to penetrate the cards. Additionally, the State’s expert did not know, and could not replicate, the amount of force used by Francke’s killer, thereby compromising his conclusions about how sharp a given knife would need to be to penetrate the cards. See, e.g., Tr. at 8322 (knife would not penetrate layer of clothing, with no analysis of force used).
Even if the State had approached the testing in a scientific way, any conclusions were necessarily limited to conclusions only about the tip of the murder weapon. The stab into
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Francke’s business cards was not the fatal wound where the knife fully entered his body, but rather the one that only barely penetrated the skin on his chest. Thus, whatever information that could be gleaned by Hurley’s tests would only be informative as to what the very tip of the murder weapon looked like. No conclusions could be drawn about the class characteristics of the entire knife.
Indicative of the weaknesses and prejudices inherent in the presentation of the Chicago
Cutlery knife (and the case generally), the State provided no discovery about this supposed
“evidence” and surprised the defense at trial with the information. No report was written by the
State’s expert or anyone at the Crime Laboratory. Tr. at 8308-09. The existence of the State- purchased knife was unknown by the defense until it was presented at trial.
Despite the surprise, the defense expert was able to consider the Chicago Cutlery knife’s characteristics and concluded that it could not have been the murder weapon. Tr. at 9681-9775.
In fact, the expert opined that Chicago Cutlery knife was not only too thick but also that the State’s medical examiner had missed a crucial piece of evidence—namely, that the fatal wound on
Francke’s body showed “a bridge of intact skin” and a mark like “a little cup underneath the stab wound.” Tr. at 9677-78. That type of injury would have been caused by a knife with a hinge or notch on the blade near the hilt, like what would be seen in a standard pocket knife, but that did not exist on the Chicago Cutlery blade. Tr. at 9680-81. The prosecutor acknowledged seeing part of the injury referenced by the defense expert and offered no rebuttal testimony to counter what had been said. Tr. at 9728-29.
However, even accepting the State’s claim that a kitchen knife such as the Chicago Cutlery blade could have been the murder weapon, the evidence discussed above ultimately did not
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inculpate Gable specifically. Instead, like the evidence regarding familiarity with and access to the Dome Building, it applied equally to the myriad of people who had ever had a connection to
OSH (through ODOC or otherwise) and who had access to a kitchen with a standard knife in it.
See generally Appx. A (discussing other suspects from whom the Task Force gathered kitchen knives). These points are simply too generalized to inculpate Gable specifically, and therefore, no reasonable juror would find him guilty based on such evidence.
D. Evidence Of Third-Party Guilt.
The Task Force’s investigation into Gable’s guilt was far more extensive than the investigation of any other of the many suspects that arose in the course of the long investigation.
The following is a discussion of the evidence that someone other than Gable committed the murder for which he stands convicted. Gable presents evidence of three other suspects in this brief, but also describes the evidence available to raise reasonable doubts regarding the guilt of others at the time of trial in Appendix A. While it is not Gable’s burden to prove another man’s guilt, this evidence, along with the above-described evidence, supports Gable’s innocence claim.
1. John Lee Crouse.
The defense made an offer of proof at trial, seeking to admit third-party guilt evidence relating to John Crouse. Tr. at 9514-58. The trial court refused to permit the defense to introduce this evidence. Tr. at 9511. However, the following facts about Crouse can be established based on information known by the defense at the time of trial. In some places, the facts known at the time of trial are illuminated by the narrative that Oregon Department of Justice Investigator Randy
Martinek provided to the Federal Public Defender investigator. Martinek, who was the first person to whom Crouse confessed and who conducted much of the investigation into Crouse’s guilt,
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continues to believe Crouse is guilty of Francke’s murder. He testified both at trial (as part of the defense offer of proof), and again in the post-conviction proceeding, where he appeared briefly by telephone as a witness for the petitioner. Tr. at 9159-58, PCR Tr. at 590-99.
When Crouse was located, in April 1989, five months before police focused on Gable,
Crouse repeatedly confessed to the murder of Michael Francke. Crouse explained to members of the Task Force that he stabbed Francke to get away after Francke interrupted him while he was burglarizing Francke’s car.59 Crouse had a history as a car prowler and as a knife-wielding assailant, and his confessions to law enforcement, his mother, brother and girlfriend dovetailed with Hunsaker’s eyewitness account, and other evidence, including some otherwise unexplained physical evidence. Tr. at 9550-52.
The day after the murder, Crouse learned that the person he had killed was the head of the
ODOC and that the murderer would face the death penalty. Pet. Ex. C at 66. That day, Crouse told his apartment manager that he was going to “split” because “something heavy was going down,” and then suffered stomach cramps so severe that he went to the emergency room the following day. Pet. Ex. H at 13-18, 118-20. Soon thereafter, he told his brother that “he had done something wrong” and would be on the run. Id. at 36-38. And sure enough, Crouse did go on the run. He never returned to his job, and failed to appear for his next scheduled meeting with his parole officer on January 19.
59 Later, the State adopted Crouse’s interrupted-car-burglary story as its own theory of how Gable committed the murder.
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In February 1989, however, laden with guilt and intending to confess to the Francke murder, Crouse checked in with his parole officer.60 However, as Crouse later told law enforcement, when he tried to get up the nerve to confess that day, he was unable to paint himself as the villain. Instead, he told his parole officer a fantastic tale of witnessing Francke’s killing at the hands of five Mexicans and heroically chasing one of the killers for miles to no avail.
Nevertheless, Crouse had injected himself into the case, so the Task Force interviewed him the following day. Crouse told essentially the same story, consented to the seizure of two knives, and agreed to take a polygraph on his denial of personal involvement, which was administered by
Fox, and which he purportedly passed. Resp. Ex. 179, at 13-49; Pet. Ex. H at 1-2.
Soon after the interview, Crouse went on the run again, only checking in sporadically with his parole officer by phone. Resp. Ex. 82-117. At that time, the Task Force was meeting daily to share leads. Experienced Oregon Department of Justice Investigator and Task Force member
Randy Martinek felt he had heard enough to justify looking further into Crouse’s background: Not only did Crouse place himself at the murder scene, but his parole officer verified that Crouse was at OSH around the time of the murder. Pet. Ex. C at 64-67; Pet. Ex. H at 83, 90.
By March 1989, the Task Force had investigated Crouse’s history and concluded that his
“psych profile . . . matched the elements profiled for this crime.” Pet. Ex. H at 116-17.61
60 More than two weeks earlier, his parole officer had provided Crouse’s parole file to the Task Force upon their request. Pet. Ex H, at 101. 61 The Task Force strategically provided information to the press because it believed that the killer could not be sure he was not seen by a witness. See Pet. Ex. C at 64. In early press conferences, D.A. Penn stated: “We don’t want the murderer to know what Michael Francke left for us about his murder in those last few minutes,” and refused to reveal if Francke had been robbed or where his stab wounds were, stating: “We know the wounds and the murderer knows the wounds.” Pet. Ex. D at 16-19.
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Investigators deemed him a person “of special interest” in the Francke murder. Id. The Task Force notified Crouse’s parole officer for assistance in locating Crouse, and the parole officer issued a warrant immediately. Id.
Crouse was 6’ tall, and had black hair. Pet. Ex. H at 26. As explained above, Crouse’s behavior changed after the murder. Crouse was familiar with the OSH grounds as he had been part of an OSH treatment program while incarcerated. Resp. Ex. 179, at 146-47. Crouse had an interest in boxing. Pet. Ex. H at 83.
Crouse had a history of violent and antisocial behavior and had used knives in previous assaults. In fact, Crouse was paroled to Salem the month before the murder from his sentence for violent robbery of a Bend, Oregon, convenience store clerk at knifepoint. Id. at 28-32. Likewise, just a month prior to the murder, a woman who lived adjacent to the OSH campus reported that
Crouse acted physically aggressive toward her (leaving bruises on her arm), made unwanted sexual advances, and offered to kill her husband. She stated that she was “really afraid” of Crouse and feared he “would do something extremely violent to her.” Id. at 69. In January 1989, Crouse was evaluated as part of his parole obligations and diagnosed as having “severe antisocial and personality problems” requiring anger management and other treatment. Id. at 5-12. Crouse’s mother and brother later confirmed Crouse’s “nasty and quick temper,” explaining he is “quick to anger, especially if someone ‘lays hands’ on him.” Id. at 39-46. In fact, Crouse’s own mother told police that she believed Crouse could kill someone while attempting to escape or to keep from being taken back to prison. Id. at 42-46.
Crouse also had a long history of breaking into and stealing from cars, and had bragged to his landlady in January that he could break into any car he wanted. Id. at 21, 32-33, 36-38, 39. In
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fact, records from the State of Nebraska, where Crouse grew up, showed Crouse had been caught stealing a car as early as age 12. Id. at 19-24. According to his mother, Crouse stole his first car at age 9. Id. at 42-46.
Finally, Crouse had a history of truthfully confessing to crimes he had committed. See
Resp. Ex. 179, at 2, 89, 300, 307-08; Pet. Ex. H at 28, 30-31. Crouse later told the Francke investigators that he had confessed to every crime he had done in Oregon once he was arrested.
Crouse had, in fact, confessed to two prior robberies and four burglaries in Bend, Oregon. The robbery convictions had led to his time at the Oregon State Penitentiary. Id. At the time of those confessions, Crouse had told investigators to check with police in Nebraska as it would show that he always admitted to his crimes. Id. Sure enough, in the interviews where he confessed to the
Francke murder, Crouse also confessed to stealing two cars, being the getaway driver in an armed robbery, and attempting to burglarize a McDonald’s in Salem since December 1988. Investigators were able to confirm the truth of each of these confessions. Resp. Ex. 179, at 2, 307-08; Pet. Ex.
H at 24-33. As Crouse’s brother admonished, and as Crouse acknowledged: “[Y]ou do the crime, you do the time.” Resp. Ex. 179, at 89.
In early April 1989, Crouse was arrested after he assaulted a female stranger who was sitting in her car, and was detained at the Oregon State Penitentiary on the parole warrant. Pet.
Ex. H at 23-24; Pet. Ex. C at 64-68. Shortly after Crouse’s arrest, Martinek and fellow DOJ investigator Kathy McLaughlin interviewed Crouse in custody. Initially Crouse told another far- fetched story about being paid $300,000 by a man named Juan to commit the murder, but, when the discussion turned to what an up-close and personal act a stabbing is, Crouse’s initial bravado faded and tears started to form in his eyes. Crouse told Martinek he did not want “her”
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(McLaughlin) in the room, indicating he did not want a female to see him in a vulnerable state.
Once she stepped out, Crouse began sobbing. With his head in his hands, Crouse tearfully—and genuinely, according to Martinek—admitted that he had killed Michael Francke, explaining that that it was a “mistake”—an “accident that went bad.” Id.; Pet. Ex. H at 292-301.
Crouse thereafter confessed to the following facts.
On the evening of January 17, 1989, shortly before the Francke murder, Crouse signed in for a visit with his parole officer on the OSH grounds
The murder took place on the OSH grounds between 6:30 and 7:30 p.m. on January 17, 1989 after his meeting with his parole officer.
Crouse walked by Francke’s car in the Dome Building parking lot and saw “stuff in the car.”
Using a wire, he was able to unlock and enter the car.62
After a “few moments,” Francke arrived, grabbed Crouse, and said “come with me.”
Crouse then went into a “fury” and tried to physically fight his way out of Francke’s grip.
The altercation occurred about 8-10 feet from Francke’s car.
Crouse described Francke as between 6’ and 6’3” tall, between 170 and 200 pounds, and “cock strong.”
At some point during the altercation, both Crouse and Francke punched each other.
Crouse hit Francke on the left side of his face with a roundhouse right.
Crouse believed Francke was wearing glasses but was not sure.
Crouse initially took “wild stabs” at Francke, but when this did not stop Francke, Crouse decided to aim “for his chest.”
62 Crouse’s landlady had found such a wire in Crouse’s room, but had disposed of it before the police could seize it. Pet. Ex. H at 70-71.
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Crouse said he eventually stabbed Francke in the heart, arm, and possibly the stomach, using a downward motion
Crouse stabbed Francke with a single-edged knife.
Crouse stabbed Francke in the “left side of the chest,” causing the wind to go out of him.
Crouse was facing east, toward the Dome Building.
Francke was facing west, away from the Dome Building.
Crouse turned away from Francke and ran west down the Dome Building driveway.
Crouse ran out of the driveway west and to a point “near a large green generator.”
Francke’s car door was open when Crouse fled the scene.
See Resp. Ex. 179, at 3, 11-12, 94-95, 99, 102-03, 116, 137-38, 304-05, 449-54; Pet. Ex. H at 35,
98, 118-20; see also Pet. Ex. C at 64-68. Crouse confessed essentially the same story to his brother during a taped phone conversation, and also confessed to his mother in an unrecorded phone call, and to his girlfriend in person. Resp. Ex. 179, at 4-6, 79-90. During the recorded call to his brother, Crouse admits to the murder, claiming it was an accident, in the following exchange:
Brother: Are you charged with it, Johnny, or not? They got you for that murder one or what, man?
Crouse: Yeah.
Brother: You didn’t though, did you? [Pause] I know you didn’t man.
Crouse: Huh?
Brother: You didn’t do it, did you?
Crouse: Yeah.
Brother: [Sobbing] For real? [Long pause, sobbing] It hurts man. [Pause, sobbing] I ain’t gonna give up on you though. You know what I mean?
Crouse: Yeah.
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Brother: You know I love the shit out of you, bro. [Pause] Thought maybe we’d have a chance together, bro.
Crouse: It just started out as just a freak accident. [Pause] But [Pause] more went on than what I intended it to be. [Brother: Yeah?] Cause at first I wasn’t too worried about it. Then when it came out on the radio. [Pause] Then uh when I first came in, I went to my P.O. and told my P.O. I knew something about it . . . because I was . . . I wanted to talk [pause] . . . about it. Then I was calling you . . . .
See Audio Excerpt No. 1, Call from John Crouse to Larry Crouse, dated April 5, 1989, available at http://or.fd.org/audio/Crouse_Audio_Excerpt_No_1.mp3; see also Resp. Ex. 179, at 84.
Later in the call, Crouse told his brother how the murder happened:
How it started was, I got in this car. Okay. I was going from my P.O.’s and I got in this car. He came out and I was still in his car. He put his hand on me and asked me what I was doing. I had a knife on my side. [Pause] I didn’t think about it and he says come on with me. And he gonna go call . . . make a phone call so I thought he was gonna call the cops. And I told myself that I’m not going back to jail. [Brother: Yeah?] K. So I tried to get away. I said let’s talk about it cause I was gonna just try to run from him… take off. But it didn’t happen that way. And we got in a fight. Then um I just tried to hit him to where I could knock him out so I could run. [Brother: Mmm hmm] Then uh….Next thing I know, I was stabbing the guy. I stabbed him in the heart. In the arm. I think I got him in the stomach a time or two. [Long Pause].
See Audio Excerpt No. 2, Call from John Crouse to Larry Crouse, dated April 5, 1989, available at http://or.fd.org/audio/Crouse_Audio_Excerpt_No_2.mp3; see also Resp. Ex. 179, at 88.
Crouse’s call to his mother was not recorded, but one of the Task Force members took notes on Crouse’s conversation, which notes reflect:
It wasn’t you, mom. It was an accident that went bad. Was something. Couldn’t live with in [my] self. Remember, you sent me $20. But, believe me, mom, it wasn’t you. It was a freak accident. I’ll have to live with it. I didn’t know who it was, mom, that [it] was [the] Head of Corrections. It was an accident. I didn't mean to kill anybody. But, it happened and it’s time to go on. Mom, there is not anything you can do. You stood by for 20 years and that is a lot more than other people get. I'm going to tell my girlfriend face to face. I asked Larry to send some photos. I wanted to call and tell you myself.
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Resp. Ex. 179, at 79.
From April 4 to 13, Crouse was interviewed several more times. Although he back peddled at times, gave varying details, and also became less emotional, re-adopting his former bravado,
Crouse maintained the same basic confession. Pet. Ex. H at 34-35; Resp. Ex. 179, at 1-3, 50-80.
Investigators also took Crouse to the Dome Building. As they left, Martinak “grabbed”
Crouse on the shoulder to steer him toward a police car. Crouse became “very hostile” and tried to fight Martinak. Later, after Crouse had regained his composure, he told Martinak that “he didn’t like being grabbed or restrained” and that Martinak “had grabbed him like Francke did that night.”
Resp. Ex. 179, at 3-4; Pet. Ex. C at 65-66.
An FBI polygrapher from out of State was flown in to polygraph Crouse on the veracity of his confession. Resp. Ex. 179, at 10-12. Crouse told the polygrapher “that all the other stories he had told the police were lies, except for the last story when he admitted to stabbing Michael
Francke.” Id. The FBI polygrapher found that Crouse’s confession was truthful. Id.
After word of Crouse’s possible involvement became public, at least two inmates came forward claiming Crouse confessed to them. Pet. Ex. H at 134-36, 209-11. However, by June
1989, Francke’s brother began communicating with Crouse directly, and Crouse changed his story, confirming Francke’s brother view that that Francke was killed as part of a larger ODOC conspiracy. Pet. Ex. D., at 57-59, 82. Specifically, Crouse stated that he had initially been approached by two ODOC officials to kill Francke for $10,000, but that another man eventually carried out the contract killing. See Resp. Ex. 179, at 155-248.
Months later, Martinek learned that the District Attorney intended to pursue a case against
Frank Gable, Martinek went to his superiors at the Oregon DOJ and voiced his concern that “they
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had the wrong guy,” and that Crouse’s confession was genuine. Pet. Ex. C at 67. He was told that that District Attorney’s office believed it could convict Frank Gable for the murder. Id. Martinek responded that, even if they could convict Gable, Martinek did not think Gable did it. Id.
Martinek’s concerns went unheeded. Id. Martinek also requested that Crouse be prosecuted for the other crimes he had admitted, which the Task Force had verified, but was told that Crouse would not be prosecuted. Id. Martinek understood this to be because the prosecution of Gable depended on Crouse maintaining his recantation. Id.
On November 29, 1989, the State provided Crouse with immunity, agreeing not to prosecute him for hindering prosecution based on “[a]ny false statements that Mr. Crouse may have made in the course of previous interviews concerning the Michael Francke homicide.” Resp.
Ex. 179, at 289; Pet. Ex. C at 177I. The following day, Crouse quietly recanted all of his previous statements and claimed to have no personal knowledge about the murder. Id. at 249-90. As late as February 1990, however, just before Gable was indicted, the Task Force was still looking for connections between Crouse and the murder, including connections between Crouse and Gable or
Harden. Police never found any connection between Crouse and Gable.63
63 The Task Force also asked Gable if he knew Curtis Grecco (one of the first suspects) or Crouse, but Gable knew neither. Resp. Ex. 292, at 255-57, 307. Inexplicably, the post- conviction court found that Gable confirmed in his November 3 interrogation that he knew Johnny Crouse, citing Tr. at 7466-70, 7478. This finding is clearly erroneous. Nothing in the record indicates Gable knew Johnny Crouse, much less that Gable confirmed as much to Detective Bain on November 3. On March 26, 1990, the State again reassured Crouse that he had immunity for any previous false statements about the Francke murder and Crouse testified before the secret Grand Jury that indicted Gable.
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2. Timothy “Rooster” Natividad.
Over the years, many, including members of the Francke family, have come to believe that a Keizer drug dealer named Timothy “Rooster” Natividad killed Francke. Two weeks after
Francke was killed, Natividad was killed by his girlfriend, Elizabeth Godlove, during an apparent domestic dispute. Little evidence relating to Natividad was developed prior to Gable’s trial by either the State or the defense; no mention of Natividad was made at trial; and no additional investigation relating to Natividad appears to have been conducted by the time of Gable’s state post-conviction proceedings. Subsequently, the Federal Defender Office investigated Natividad and generated the following information, which first summarizes the evidence that was previously available, but not presented to the jury, and then summarizes the new evidence.
a) Evidence Available At The Time Of Trial.
At the time of Gable’s trial, neither the State nor the defense had extensively investigated
Natividad’s possible role in the murder. The evidence of Natividad’s involvement came primarily from two sources. First, an inmate and his wife told the Task Force in June 1989 that Natividad attempted to hire him late in 1988 to kill someone in “corrections,” but he declined. Pet. Ex. H at
72-79. Second, in the Fall of 1990, Godlove told Gable’s defense counsel that she believed
Natividad was involved in Francke’s murder.64 The Francke Task Force confirmed Ms. Godlove’s statement and interviewed Natividad’s family, who eventually provided the State access to
Natividad’s clothing and numerous knives, but provided no inculpatory information. Id. at 233-
64 At the time she came forward, Godlove was dating Francke’s brother, Kevin, who had moved to Oregon to investigate his brother’s murder. Godlove later married Kevin Francke.
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58. No blood was found on the clothing. Id. at 232. Natividad’s brother, T.J., told the Task Force that, in January 1989, Natividad told him that he heard Cappie Harden, who at the time had been designated as one of the State’s “material” witness, was involved in Francke’s murder. Id. at 236.
Little effort appears to have been made to investigate further.
Natividad’s associates included Harden and Swearingen. Pet. Ex. C at 6, 8-12. Prior to trial, Swearingen admitted that she was lying about Gable’s involvement in Francke’ murder to protect someone she believed was actually involved. She later admitted that she was protecting
Natividad and that she also believed Harden was involved in some way. Pet. Ex. C at 12, 73-74.
Prior to trial, Natividad confidant Greg Johnson told the Task Force that Swearingen, who had by that time recanted, had insinuated that Natividad murdered Francke, and that she was covering up for him. Pet. Ex. H at 248.
b) Trial Court Rulings Relating To Natividad.
In Fall 1990, the defense sought discovery regarding Natividad, citing due process and relying on an affidavit of Godlove and two pages of discovery mentioning Natividad that had been provided by the State—one page mentioned Swearingen was associated with “Rooster” and the other was the initial “tip” sheet that later generated the murder-for-hire information. Tr. Vol. 7
(Nov. 5, 1990), at 157-69; see also Resp. Ex. 213. The defense did not present any information it had generated through investigation (as opposed to review of the discovery provided by the State).
The trial court denied the motion. Resp. Ex. 102, at Entries 239, 346.
As discussed above, the State moved prior to trial to exclude evidence relating to third- party-guilt, including evidence relating to Tim Natividad. Tr. at 5864-65, 8466, 9315. The trial court deferred ruling until the defense actually attempted to present such evidence. Id. Initially,
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defense counsel told the court “we may present evidence pertaining to Mr. Natividad.” Tr. at 8466.
Later, the defense indicated that it was aware that Swearingen had information about Natividad.
Tr. at 9315. But the defense never sought to introduce any evidence relating to Natividad.
c) Post-Conviction Proceedings.
Gable exhausted his post-conviction claim that trial counsel failed to investigate and to present evidence of third-party guilt, including evidence relating to Natividad. Abel testified in the post-conviction trial court proceedings that his team investigated Natividad, but that the investigation produced no “substantive” information. Resp. Ex. 345, at 75.
Although little defense investigation beyond talking to Godlove had been conducted, the post-conviction court found that the defense had done significant investigation of Natividad and noted that the defense had pursued the discovery motions relating to Natividad. Resp. Ex. 345, at
57, 91-93. The post-conviction court also made a clearly erroneous finding that the State had presented evidence relating to Natividad in its case-in-chief, relying on post-conviction Exhibit
216. Id. at 57. Post-conviction Exhibit 216 contains nineteen pages of police reports relating to
Godlove. See Resp. Ex. 314, at 1-19. Ultimately, the post-conviction court concluded:
The Timothy Natividad and Johnny Crouse aspects were pursued and beaten to death at trial, and although truly having no life beyond speculation and conjecture, even at this point they are continuing to be beaten on in these post-conviction proceedings to little avail.
Id. at 93. Not surprisingly, given its venomous response to the Natividad claim, the post- conviction court also found no viable appellate issue relating to Natividad. Resp. Ex. 345, at 100.
Gable thereafter exhausted this claim, but the Oregon courts denied relief. Resp. Exs. 357, 366.
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d) Newly Available Evidence.
The Federal Defender Office investigation has now developed the following new information about Natividad. Natividad was 5’11” to 6’1” with neat, short black hair, and a thin mustache. Pet. Ex. C at 8, 181. Natividad had told his associates he was involved in drug dealing within the Oregon prisons. Id. at 8-12, 195; Resp. Ex. 345, at 56-57. Greg Johnson, now Kellcy, also knew Natividad to associate with former prison warden Hoyt Cupp. Id. at 181.65
Just days before the murder, Natividad told at least two associates that he was going to kill
Francke. Specifically, he told his neighbor that he planned to kill Francke because Francke was investigating drug trafficking in the prisons and intended to put a stop to it. Id. Natividad confided to another friend that he planned to “take out” a “big guy” at the Dome Building because that person posed a threat to “me and mine.” Id. at 8-12. Natividad also acted oddly both just before and just after Francke’s murder. Id. Before the murder, Natividad was withdrawn. Id. After the murder, he changed his appearance, dying his hair, and acted erratic. Id.
According to Johnson, around dusk on the night of the Francke murder, Natividad asked
Johnson to drive him to the Oregon Department of Corrections in Natividad’s 1974 brown Datsun
260Z. Pet. Ex. C at 179-88. Johnson drove Natividad to the circular parking lot at the Dome
Building and saw Natividad was walking toward the building steps as he drove away. Id.
Natividad had given Johnson a two-way radio so he could radio Johnson when he was ready to be
65 Kellcy had a history with the ODOC administration because he had been one of two inmate informants who helped bring to light corruption, graft, and wrongdoing by lower- level ODOC employees at the Oregon State Penitentiary Farm Annex in 1986, while Cupp was Warden. When Francke was hired to run the ODOC in 1987, in the wake of this corruption investigation, Francke followed up, meeting personally with Kellcy, Bray, and at least two ODOC guards, Robert Merchant and David Larson who had acted as whistle blowers based on the information from Johnson and Bray. Pet. Ex. C at 18, 226-87.
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picked up. Id. Johnson drove to his mother’s house and then to a nearby bar, where he was when
Natividad radioed to be picked up at the doctors’ offices west of the Dome Building. Id. When
Natividad got into the car, he was out of breath and told Johnson “it’s not my blood,” at which point Johnson noticed that Nativdad’s gloved hands appeared wet. Id. Natividad put a briefcase in the back seat and the pair drove to an auto body shop where they left the car and walked to a bar. Id. Natividad would not tell Johnson what happened, but said that it will be “all over the news tomorrow” and to keep his mouth shut or they might both end up dead. Id.
A few days later, Johnson accompanied Natividad to receive a “payoff.” Id. Johnson watched as two men in a car, possibly with Oregon government license plates, pulled up, and one of the men handed something to Natividad, which Natividad later revealed was $20,000 in cash.
Id. Johnson recognized the men as ODOC employee Steven Gassner and Hoyt Cupp. Id.
According to Godlove, Natividad came home at 3:00 a.m. on a night in mid-January 1989 with wounds on his leg and head. Id. at 70-71. Natividad said he had been in a fight. Id. A couple days later, in the course of threatening her, he told her that he had killed a man. Id. Shortly thereafter, Natividad showed her a large sum of money and told her he wanted to take a trip to
Hawaii or move away from Salem. Pet. Ex. C at 70-71; see also id. at 193 (neighbor Vincent
Taylor said Natividad had large sums of money before his death). After January 17, Natividad began acting more paranoid and violent and took knives to his brother, T.J., to have them cleaned and sold. Id. at 70-71
The Emergency Room doctor who saw Natividad on the night he was killed, Dr. Lewis
Sayre, said that Godlove admitted shooting Natividad, and also suggested that she believed he was involved in the murder of Michael Francke. Pet. Ex. C at 11.
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3. Samuel “Navarro” Cornejo.
In late January 1989, Samuel Cornejo (also known as “Navarro” or “Diablo”) became a suspect after the Task Force learned from several people that he had confessed to his girlfriend and her cousin, carried a knife, and was a dangerous drug trafficker. The girlfriend told police that
Diablo came to her home, which was just west of the Dome Building, late on the night of the murder, drunk and wearing a beige trench coat and dirty pants. The following day, as they drove past the Dome Building, Navarro told her and her cousin he had committed murder there.
Police seized a trench coat belonging to Navarro, but were unable to find forensic evidence on the coat. A second woman claiming to be Navarro’s girlfriend provided him with an alibi, telling police he was at her home at the time of the murder. Pet. Ex. H at 127.
Navarro initially denied any involvement and even denied confessing. After he failed a polygraph on the question of his involvement administered by Oregon State Police polygrapher
Dennis Fox, he admitted he had told his girlfriend that he committed the murder and pointed out the location, but continued to deny killing Francke. Id. at 212-16. After this admission, he was polygraphed again and a contradictory result was obtained. Id. No further investigation into
Navarro appears to have been conducted thereafter.
Fox’s report reconciles the two polygraphs by explaining that the test conditions for the first polygraph were not ideal due, in part to a lengthy pre-polygraph interrogation, but also due to
Navarro’s concerns that he was withholding the fact that he had confessed to the murder:
The first polygraph examination conduced on March 13th, was not given under very good conditions. For the first time that day, Mr. Cornejo had been contacted by the police and questioned concerning the murder. The polygraph examination was given after Mr. Cornejo had been interviewed for several hours. Also, by Mr.
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Cornejo’s later admissions, there were many areas that he was concerned about, not related to the issue, but that can create problems during the polygraph examination.
It is noted that during the second polygraph examination, those problem areas were discussed, and the concern he had resolved in those areas. When the information had been released that he was concerned with, and was no longer of concern to him, Mr. Cornejo was able to better concentrate on the issue at hand.
A strong factor in Mr. Cornejo’s doing poorly in the first polygraph examination was the withholding of information that he had been doing, concerning telling people that he had killed Mr. Francke, having been known to carry a knife, and for his denial for having showed anyone where Mr. Francke was killed.
It is obvious that Mr. Cornejo was concerned about making himself look more guilty if he admitted to doing those things, he therefore wished to deny everything because he wanted to prove his complete innocence.
Pet. Ex. H at 212-16.
Navarro allegedly committed suicide in the Marion County Jail after being interviewed by a member of Gable’s defense team about the Francke murder. See generally Resp. Ex. 309. The defense request for his autopsy was denied. Id. at 1.66
66 The post-conviction court erroneously believed that Samuel Cornejo and “Navarro” were two different people. Resp. Ex. 345, at 93.
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IV. ARGUMENT.
A. Habeas Relief Is Warranted Based On The Denial Of Gable’s Right To Present A Complete Defense And Other Trial Errors, Particularly, Of Counsel, That Individually And Cumulatively Violated His Sixth And Fourteenth Amendment Rights And Rendered His Trial Unfair.
The trial in this case was fundamentally unfair for reasons that cannot all be laid at the feet of one party. Several of the trial court’s evidentiary rulings, most notably, but not only, the rulings excluding evidence relating to Crouse and to police interrogation tactics, hampered the defense’s ability to present its complete theory of the case. At the same time, the trial court adopted a much broader theory of relevance with regard to the evidence the State sought to present. Defense counsel made mistakes as well. Counsel failed to supply the trial court with the federal constitutional authority that authorized the defense’s admission of evidence relating to Crouse and that would have demonstrated that evidence relating to the Task Force’s coercive interrogation tactics was both relevant and admissible. Thereafter, defense counsel failed to present a coherent narrative to the jury, undermining exculpatory evidence that was in the record and overlooking other available exculpatory evidence that should have been presented. Counsel also failed to confront the State’s case in a meaningful way, including failing to make use of available evidence that would have highlighted inconsistencies in, and called into question the credibility of, the key circumstantial evidence of guilt presented by the State. An aggressive prosecutor capitalized on defense counsel’s mistakes, emphasizing the corroborative effect of the circumstantial pieces to the State’s case and coming very close to, if not actually, presenting misleading information to the jury. The analysis that follows supports relief, individually or cumulatively, on Grounds 2, 3, 5,
6, 8, 7, 15(A)-(L), and 16, 17, and 20 of the Amended Petition. CR 61.
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Despite the failure of Gable’s prior attorneys to raise and exhaust these issues in state court, this Court may nevertheless reach the merits of these claims because the evidence of Gable’s innocence presented in this proceeding satisfies the Schlup “miscarriage of justice” standard, excusing the default as discussed above. Additionally, “cause and prejudice” excuses the default with respect to the ineffective-assistance-of-counsel claims under Martinez v. Ryan, 132 S. Ct.
1309 (2012). Most notably, the failure of Gable’s trial and appellate attorneys to properly raise and argue the Chambers issue constituted ineffective assistance of counsel. Likewise, the failure of Gable’s post-conviction attorney to raise the “substantial” Sixth Amendment challenges to the trial attorneys’ conduct was, itself, ineffective representation. See Martinez, 132 S. Ct. at 1317;
Nguyen v. Curry, 736 F.3d 1287-95 (9th Cir. 2014) (Martinez rule applies to claims of trial or appellate counsel’s ineffectiveness). This Court reviews such claims de novo because they have not previously been “adjudicated on the merits” by the Oregon courts, rendering 28 U.S.C. §
2254(d)’s deference requirement inapplicable. Cone v. Bell, 556 U.S. 449, 472 (2009); Chaker v.
Crogan, 428 F.3d 1215, 1221 (9th Cir. 2005).
The exclusion of third-party-guilt evidence is discussed at length first, because it, individually, provides a clear path to habeas corpus relief. The constitutional right to present credible evidence of third-party guilt was established long before any proceedings in this case occurred, most notably by the Supreme Court’s decision in Chambers v. Mississippi, 410 U.S. 284,
302-03 (1973), and there is no meaningful way to distinguish this case from Chambers. The violation of the right to present a complete defense alone requires vacation of Gable’s conviction.
Thereafter, the brief discusses the other problems that marred the trial in this case.
Although some of these other problems may warrant habeas relief on their own, most are flaws
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that become most apparent when viewed in combination. For example, when each of the mistakes of defense counsel or the over-statements by the prosecution is viewed in isolation, those actions may not appear to have rendered the trial fundamentally unfair. But, collectively, these problems led to a trial that in no way resembled the full picture that our adversarial system presumes the jury will receive. A comparison of the closing arguments of the State and the defense underscores how each of these problems collectively resulted in the State being able to provide the jury with a coherent narrative of guilt, and the defense providing virtually no alternative narrative at all.
The combined effect of individual errors may, cumulatively, deprive a defendant of a fair trial even where no single error rises to the level of a constitutional violation or would independently warrant reversal. Parle v. Runnels, 505 F.3d 922, 927-28 (9th Cir. 2007) (citing
Chambers, 410 U.S. at 290 n.3, 298, 302-03); id. at 927 n.6 (citing Thomas v. Hubbard, 273 F.3d
1164, 1180 (9th Cir. 2002) (“In analyzing prejudice in a case in which it is questionable whether any ‘single trial error examined in isolation is sufficiently prejudicial to warrant reversal,’ this court has recognized the importance of considering ‘the cumulative effect of multiple errors’ and not simply conducting ‘a balkanized, issue-by-issue harmless error review.’” (internal citation omitted)). Cumulative error warrants habeas relief where the errors have “so infected the trial with unfairness as to make the resulting conviction a denial of due process.” Id. at 927 (citing Donnelly v. DeChristoforo, 416 U.S. 637, 643 (1974)); id. (citing Thomas, 273 F.3d at 1179-81, for the proposition that “a Donnelly violation necessarily meets the requirements of Brecht”). “In simpler terms, where the combined effect of individually harmless errors renders a criminal defense ‘far less persuasive than it might [otherwise] have been,’ the resulting conviction violates due process.”
Id. (internal citation omitted). In this case, as a result of a combination of errors the presentation
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of the evidence was skewed in favor of the State in such a way as to deprive Gable of a fair trial, warranting habeas relief.
1. Gable Is Entitled To Habeas Relief Because The Trial Court Improperly Excluded Evidence Critical To The Defense, Including Evidence Of John Crouse’s Guilt.
Substantial evidence demonstrating John Crouse’s guilt was known at the time of Gable’s trial. John Crouse repeatedly confessed to murdering Francke, telling numerous law enforcement officers as well as his own mother, brother, and girlfriend that he had stabbed Francke when
Francke caught him burglarizing Francke’s car. See Resp. Ex. 179, at 3, 11-12, 94-95, 99, 102-
03, 116, 137-38, 304-05, 449-54; Pet. Ex. H at 35, 98, 118-20; see also Pet. Ex. C at 64-67.
Crouse’s confession was consistent with the crime scene and autopsy evidence, and corroborated by the unbiased eyewitness testimony. Crouse’s confession was polygraphed as truthful by an FBI polygrapher who was flown in from out of state to polygraph him.
Further, the Task Force was able to verify that Crouse’s conduct after the murder was consistent with his confession. Parole records confirmed he was on the OSH grounds shortly before the murder to visit with his parole officer. Pet. Ex. H at 83. Hospital records confirmed his statement that he became physically ill with stomach pains just after the murder, which he told the
Task Force started the day after the murder when he learned the identity of the victim on the radio and realized that he could face the death penalty. Id. at 13-18. Parole records confirmed his statement that he failed to appear for his next scheduled meeting with his parole officer that day, i.e., that he went on the run shortly after the murder, which he had attributed to the same reason.
Id. at 98. The day after the murder, Crouse told his apartment manager that he was going to “split” because “something heavy was going down,” id. at 118-20, and soon thereafter, Crouse told his
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brother that “he had done something wrong” and would be on the run, id. at 36-38. Crouse’s history also supported the veracity of his confession: Crouse was familiar with the OSH campus,
Resp. Ex. 179, at 146-47, had a history of breaking into or stealing cars, of violent and antisocial behavior, and of truthfully confessing to crimes he had committed, Pet. Ex. H at 12, 21, 23-28, 30-
39, 42-43, 65-66, 114; Resp. Ex. 179, at 2-4, 300, 307-08.
Yet the jury never learned of this powerful evidence that a man other than Gable committed the murder for which Gable was being tried. Given the circumstances of the crime and the publicity involved, the Francke murder “called out for a murderer,” but the “trial as conducted . .
. left only [Gable] in view as the murderer.” Lunbery v. Hornbeak, 605 F.3d 754, 762 (9th Cir.
2010). Whether based on the trial court’s improper evidentiary rulings, or on Gable’s attorneys’ failure to perform effectively, the end result was that the exclusion of evidence of third-party guilt deprived Gable of the right to present a complete defense and violated his Fifth, Sixth, and
Fourteenth Amendment rights.
The only brief reference to Crouse came during the State’s case-in-chief when defense counsel elicited during cross-examination of Task Force member and Oregon State Police
Detective, Paul Bain, that Crouse had been a suspect in the case and had confessed. Tr. at 7477.
Specifically, the defense asked: “Did you ask [Gable] whether or not he knew Johnny?” See generally Tr. at 7477-78. In response, Bain nodded in the affirmative and then confirmed that
Johnny referred to Johnny Lee Crouse. Defense counsel then asked: “A suspect in this case, right?”
Bain responded: “Yes.” Defense counsel asked: “Matter of fact, he confessed, didn’t he?” Bain responded: “Yes, he did.” Tr. at 7478. Defense counsel asked no more questions about Crouse.
The State countered by eliciting that Crouse’s confession could not be “corroborated in any way”
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and was later recanted. Tr. at 7479. Defense counsel did not challenge that testimony by eliciting testimony about the wealth of information that corroborated Crouse’s confession. Thus, the jury never learned that the confession was in fact corroborated in numerous and significant ways.
Thereafter, due to the trial court’s ruling excluding evidence relating to Crouse, no further substantive evidence about Crouse was admitted in the case.
a) Due Process Guarantees The Right To Present Credible Evidence Of Third-Party Guilt In A Criminal Trial.
“Whether rooted directly in the Due Process Clause of the Fourteenth Amendment or in the Compulsory Process or Confrontation Clauses of the Sixth Amendment, the Constitution guarantees criminal defendants ‘a meaningful opportunity to present a complete defense.’”
Holmes v. South Carolina, 547 U.S. 319, 324 (2006) (quoting Crane v. Kentucky, 476 U.S. 683,
690 (1986) (quoting California v. Trombetta, 467 U.S. 479, 485 (1984))); accord Lunbery, 605
F.3d at 760 (quoting Crane, 476 U.S. at 690). The “right to present a defense is ‘fundamental’ in our system of constitutional jurisprudence.” Chia v. Cambra, 360 F.3d 997, 1004 (9th Cir. 2004)
(quoting Perry v. Rushen, 713 F.2d 1447, 1450-51 (9th Cir. 1983)). This right “is violated by the exclusion of probative admissible evidence that another person may have committed the crime.”
Lunbery, 605 F.3d at 760 (citing Chambers, 410 U.S. at 302-03). Specifically, the Constitution requires that any resulting conviction be vacated when reliable and important evidence of third- party guilt is excluded based on a mechanical application of state rules of evidence. See, e.g.,
Chambers, 410 U.S. at 302; Lunbery, 605 F.3d at 762; Cudjo v. Ayers, 698 F.3d 752, 754-55 (9th
Cir. 2012). Indeed, “[f]undamental standards of relevancy . . . require the admission of testimony which tends to prove that a person other than the defendant committed the crime that is charged.”
United States v. Crosby, 75 F.3d 1343, 1347 (9th Cir. 1996) (alterations in original) (quoting
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United States v. Armstrong, 621 F.2d 951, 953 (9th Cir. 1980)) (alterations in original); see also id. (“A defendant is entitled to introduce evidence which tends to prove someone else committed the crime”) (quoting United States v. Perkins, 937 F.2d 1397, 1400 (9th Cir. 1991)); see also
Holmes, 547 U.S. at 327 (citing treatises for black letter principle that evidence of third-party guilt is admissible when it raises a doubt about the accused’s guilt, but not when it is speculative, remote or attenuated).
While states have some latitude to develop rules of evidence in criminal trials, “where constitutional rights directly affecting the ascertainment of guilt are implicated,” those evidentiary rules “may not be applied mechanistically to defeat the ends of justice.” Chambers, 410 U.S. at
302. It “is clearly established federal law, as determined by the Supreme Court, that when a hearsay statement bears persuasive assurances of trustworthiness and is critical to the defense, the exclusion of that statement may rise to the level of a due process violation.” Chia, 360 F.3d at
1003.
In Chambers, the Supreme Court found a due process violation where a criminal defendant was prevented from presenting evidence of third-party guilt. Chambers, 410 U.S. at 302-03.
Chambers was tried for the murder of a police officer after shots were exchanged between the officer and someone in a crowd of people of which Chambers was a part. Id. at 285-86. Witnesses believed the victim officer had taken deliberate aim in the direction of his shooter when he returned fire, and Chambers was the person struck by the officer’s bullet. Id. at 286-87. Although the murder weapon was never found, the state presented eyewitness testimony from another police officer that he had seen Chambers shoot and kill the deceased officer. Id. at 289. Chambers’ defense was that another man at the scene, McDonald, was the actual culprit, and Chambers sought
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to offer evidence to that effect. Chambers was “partially successful” in that endeavor: one witness testified to seeing McDonald shoot the officer, another witness testified to seeing McDonald with a gun immediately after the shooting, and McDonald himself admitted to having confessed to the crime—in fact, McDonald’s transcribed confession to Chambers’ attorneys was admitted into evidence and read to the jury. Id. at 289-91.
However, during cross-examination by the state, McDonald testified that he had repudiated his confession, had not shot the deceased officer, and had only confessed because he was told he would receive a sizable amount of money and would not go to jail. Id. at 290. Chambers sought to treat McDonald as an adverse witness and challenge the purported retraction of his confession, but was prevented from doing so based on a state rule of evidence known as the “voucher” rule, which prevents a party from impeaching his own witness. Id. at 291-95. Chambers then attempted to introduce the testimony of three witnesses to whom McDonald allegedly confessed, but the state’s hearsay objections were sustained. Id.67 Chambers was subsequently convicted and sentenced to life in prison.
The Supreme Court reversed, finding the exclusion of evidence of McDonald’s guilt, including his confession, violated due process. The Court noted that the “right of an accused in a criminal trial to due process is, in essence, the right to a fair opportunity to defend against the
State’s accusations.” Id. at 294. Specifically, “[t]he rights to confront and cross-examine witnesses and to call witnesses in one’s own behalf have long been recognized as essential to due process.” Id. Although Chambers was able to present some evidence of third-party guilt, his
67 The jury heard about one of the confessions, but, after the state objected, the trial court instructed the jury to disregard the testimony. Chambers, 410 U.S. at 292 & n.4.
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“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.”
Id. Moreover, McDonald’s purported confessions “provided considerable assurance of their reliability” given that there were multiple such statements, they were against McDonald’s penal interest, they were made to close acquaintances shortly after the murder, and they were
“corroborated by some other evidence in the case.” Id. at 300-01. Because the excluded evidence
“bore persuasive assurances of trustworthiness” and “was critical to Chambers’ defense,” his due process rights were violated when the trial court “mechanistically” applied state evidentiary rules and prevented him from presenting a full defense. Id. at 302.
The Ninth Circuit has applied Chambers recently and repeatedly in cases where evidence of third-party guilt was excluded based on state evidentiary rules. See, e.g., Lunbery v. Hornbeak,
605 F.3d 754 (9th Cir. 2010); Cudjo, 698 F.3d 752. In Lunbery, the defendant confessed to murdering her husband, but retracted the confession. At trial, her defense was that her husband was killed mistakenly by drug traffickers who were criminal associates of the former resident of their house. 605 F.3d at 757-59. This theory was supported by two hearsay statements suggesting
“the killing had been a mistake,” evidence that the former resident was involved in drug trafficking, and a witnesses report of seeing a vehicle on the night of the murder that a confidential informant linked to the former resident and one of his associates. Id. at 757. The trial court excluded the defense evidence of third-party guilt; Lunbery was convicted; and the conviction was affirmed on appeal. Id. at 758-59.
The Ninth Circuit granted habeas corpus relief, vacating the conviction and holding that
“Chambers controls.” Id. at 761. The Court assessed the excluded evidence under the Chambers
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twin rubric of trustworthiness and importance to the defense case. Id. at 760. One of the hearsay statements at issue—which suggested that the declarant’s criminal partners had mistakenly killed the victim—“bore substantial guarantees of trustworthiness” because it was against the declarant’s penal interest, “was made shortly after the murder,” and was “corroborated by other evidence” such as the evidence of prior drug trafficking at the house and the car that had been seen the night of the murder. Id. at 761. Additionally, the excluded evidence was critical to Lunbery’s defense because without it, “she was prevented from offering any alternate theory as to who might have committed the crime.” Id. at 762. As the court noted: “The murder called out for a murderer.
The trial as conducted . . . left only [the defendant] in view as the murderer.” Id. Echoing
Chambers, the court reiterated that “a state’s rules of evidence cannot be mechanistically applied and must yield in favor of due process and the right to a fair trial.” Id. Even under the deferential standard of the Anti-Terrorism and Effective Death Penalty Act (AEDPA), the Ninth Circuit granted habeas relief, finding the state court appellate decision affirming the conviction was an
“objectively unreasonable application of Chambers.” Id.; see also Chia, 360 F.3d at 1006-07
(granting habeas relief under the AEDPA where exclusion of hearsay statements exonerating defendant was an unreasonable application of Chambers).
In Cudjo v. Ayers, the Ninth Circuit again granted habeas relief under the AEDPA finding the state court’s decision to exclude evidence of third-party guilt on state-law grounds was contrary to Chambers. 698 F.3d at 755, 758-59. Cudjo was charged with first degree murder and sought to present evidence that his brother was the true culprit, having confessed to a fellow inmate while incarcerated. Id. at 755-56. Because the brother invoked his privilege against self-incrimination,
Cudjo attempted to call the inmate to testify about the brother’s purported confession. The state
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court excluded the inmate’s testimony, Cudjo was convicted and sentenced to death, and the conviction was affirmed on appeal with the state court finding that the error did not implicate
Cudjo’s federal constitutional rights. Id. at 757-59. The Ninth Circuit disagreed and held that
“there are no constitutionally significant distinguishable facts between Chambers and this case”:
Here, as in Chambers . . . the evidence at trial pointed to a single person committing murder, and the issue of the case was the identity of the perpetrator. As in Chambers, Petitioner “endeavored to develop two grounds of defense”: that he did not kill the victim, but that an identifiable other person did. In both cases, the alternate suspect had allegedly previously confessed to the crime; the defense was prevented from cross-examining the alternate suspect at trial; and the trial court's application of the hearsay rules prevented the defendant’s witness from testifying to the alternate suspect’s confession.
Id. at 763, 765-66 (internal citations to Chambers omitted). Because “any distinctions” between
Cudjo’s case and Chambers were “distinctions without a difference,” habeas relief was warranted based on a violation of the constitutional right to due process. Id. at 767-68.
The Oregon Supreme Court also recently reaffirmed that “Chambers remains good law.”
State v. Cazares-Mendez, 350 Or. 491, 518 (2011). The Oregon Supreme Court found a Chambers violation where, like here, the trial court excluded evidence that another person had confessed to the murder for which the defendant was being tried. Id. at 498. In Cazares-Mendez, the other person confessed four times to four different people with varying degrees of specificity, and was, at the time of trial denying that she had confessed or committed the murder. Id. The Oregon
Supreme Court held that the unavailability requirement of the Oregon Evidence Rule about statements against penal interest is trumped by Chambers, and that the four people to whom the third party confessed could testify about her confessions. Id. at 519. Moreover, that court held that the accused need not present independent corroborating evidence of third-party guilt to show
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the hearsay statement relating the confession is trustworthy, especially in a case where no forensic evidence ties the defendant or the third-party guilt suspect to the murder. Id. at 515 n.7.
Chambers and its progeny hold that a conviction cannot stand where state rules of evidence have been applied mechanistically to exclude “trustworthy” and “critical” evidence of third-party guilt. Such was the case here with respect to the exclusion of evidence that John Crouse, rather than Gable, committed the Francke murder. See Chambers, 410 U.S. at 302.
b) The Trial Court’s Ruling Excluding Evidence Relating To Crouse.
During trial, in response to the State’s motion in limine described previously, the trial court held a “Rule 104” hearing to determine the relevancy and admissibility of evidence relating to
Crouse.68 The defense called Crouse to the stand—outside the jury’s presence—and asked, first, whether Crouse was represented by an attorney and whether that attorney was present at the hearing. Crouse answered affirmatively to both questions. Tr. at 9487. Defense counsel then asked: “In January 17, 1989, did you kill Michael Francke?” Crouse responded: “No.” Id. Crouse thereafter invoked his Fifth Amendment privilege against self-incrimination to all other questions, which included questions about whether he was on the OSH grounds on the day of the murder, whether he had confessed to the murder, and about the details of his confessions. Id. at 9487-89.
The defense requested a finding that Crouse was “unavailable” to testify at the trial. As all parties apparently anticipated that Crouse would invoke the Fifth Amendment, the court responded: “I think the State’s prepared this morning to stipulate that he is unavailable.” Id. at
68 Although Crouse was under a defense subpoena (and under the supervision of a State parole officer), he had apparently absconded and the trial court issued an arrest warrant for contempt.
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9489.69 However, the State changed course, refusing to stipulate to unavailability and, instead, arguing that Crouse’s single substantive answer denying involvement “puts a whole new light on” the situation. Id. at 9490-91.
The State claimed that Crouse was not only “available” as a witness, but that, because he denied killing Francke, any evidence the defense offered to challenge that denial could be admitted only for impeachment purposes. Id. at 9493. According to the State, the evidentiary rules dictated that such limited “impeachment” evidence could not be considered by the jury substantively. Id.
The final link in the State’s chain of logic was that, because the evidence of third-party guilt was impeachment rather than substantive, it was irrelevant to the case and should be excluded:
The bottom line is [Crouse] said in this courtroom this morning under oath he did not kill Mr. Francke, and if Mr. Abel wants to go down the road in some way trying to elicit these other statements that he is taking the Fifth on, I suppose he can persue [sic] that route. But the state’s position at that point is basically that they’re impeachment. Because they are impeachment, they are not substantive. Because they’re not substantive, the jury cannot rely on them as substantive evidence and, therefore, this man has basically told this Court today under oath what he told the Grand Jury under oath which is he -- I did not kill Michael Francke, therefore, his testimony in this proceeding is irrelevant.
Id. at 9495.
Crouse’s attorney repeatedly stated that Crouse “intended to invoke his Fifth Amendment rights to that [initial] question and would invoke his Fifth Amendment rights in front of the jury.”
Id. at 9492. The trial court ignored this position, stating they could not “get back to un-ringing the bell.” Id. at 9497.
69 If Crouse was deemed “unavailable,” the hearsay exception for “statements against interest” presumably would have applied to his confessions. Or. R. Evid. 804(3)(c).
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The defense argued that evidence of Crouse’s guilt should be admitted in two ways: first, as to the question Crouse answered—denying that he killed Francke—the defense should be
“entitled to impeach with prior inconsistent statements.” Id. at 9498. Second, as to any remaining questions that Crouse refused to answer based on privilege, he should be considered “unavailable” as to those issues. Id. The court initially appeared to agree with the defense:
I think if you’re going to impeach him, he may say I don't want to answer the question, I'm going to invoke the Fifth. There are other witnesses that can come forward and say on a previous time or a previous date he made the following statement, and those can be used for impeachment purposes. I agree with you. Yeah. He can still invoke his Fifth, but you have other ways now to get that in. Now we get to the issue of just what are they worth and what can they be used for.
Id. at 9498-99.
The defense argued that impeachment evidence should be admitted to allow the jury to make a credibility determination as to whether Crouse was lying when he denied killing Michael
Francke. Id. at 9495-96. The State did not directly address that issue, focusing instead on its concern that the jury would not be able to differentiate between impeachment and substantive evidence. Id. at 9499-9501. The court agreed with the defense that Gable was “entitled to present”—through police officer witnesses—evidence about Crouse’s confessions to allow the jury to determine whether Crouse was truthful or lying when he denied killing Francke:
I think you’re entitled to do that through other witnesses. But if [Crouse] wants to invoke his privilege . . . I have to allow him to invoke his Fifth Amendment privilege if he cares to do that. . . . Certainly you can put that on by way of impeachment and the jury is going to hear it, but not as substantive evidence. If I understand this Rule correctly, they’re going to hear it and they can use all of that in determining if he is telling the truth or not if he answers that question in front of them. He may not answer it. And then he and I are going to get in an issue whether he is going to spend time in the Marion County jail until he does answer the question.
Id. at 9502-03.
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The State then renewed its argument that the pivotal issue was that Crouse was now denying that he committed the murder. In the State’s view, such a denial rendered any evidence of third-party guilt irrelevant:
MS. MOORE: Basically, if he is testifying as he did today under oath and as he has in the past under oath, that he did not kill Michael Francke, it’s not relevant evidence to go to the jury because if you allow . . . Mr. Abel to bring in the other statements to impeach, the jury cannot rely on that impeachment as substantive evidence. The trier of fact cannot rely on that as substantive evidence to render a verdict in this case, therefore, you have somebody testifying I did not kill Michael Francke, it’s not relevant to the -- these proceedings and, therefore, not admissible.
THE COURT: I want to get back to that as a threshold issue. You’re suggesting that even calling him as a witness and putting him on the stand, if he answers that question the same that the answer is today, it’s not relevant?
MS. MOORE: That’s my position.
THE COURT: So we never get to all of the rest of the issues because you can’t impeach what he doesn’t testify?
MS. MOORE: Exactly.
Id. at 9508-09.
The court adopted the State’s reasoning and excluded all evidence related to John Crouse, stating:
I think the first thing that I have to rule on is whether or not Mr. Crouse is available or not based on Rule -- the 104 Rule hearing we had yesterday morning. And given his answer to the first question that he was asked, I find that he is available as a witness. Thereafter, having found that based again on the evidence at the hearing the answer to the question that he was asked would be irrelevant to this jury. Given that I find that the answer is irrelevant, there won't be any need to impeach his testimony, he didn’t give any testimony to the jury, the trier of the fact. I think that takes us through to the end.
Id. at 9511; Resp. Ex. 307. Thus, the court did not exclude the Crouse evidence because it was substantively irrelevant (i.e., the court did not rule that the evidence had no probative value).
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Instead, the court held that the method by which the evidence would be admitted under the State rules of evidence rendered it irrelevant, regardless of whether it was probative of a material fact, much less trustworthy and critical to the defense.
This kind of exclusion of evidence—namely the exclusion of third-party-guilt evidence that bears “persuasive assurances of trustworthiness” and that was “critical” to the defense—based on “mechanistically” applied state evidentiary rules violates due process. This is precisely what
Chambers forbids. 410 U.S. at 302; accord Cudjo, 698 F.3d at 754 (“[T]he United States Supreme
Court clearly established that the exclusion of trustworthy and necessary exculpatory testimony at trial violates a defendant’s due process right to present a defense.”); Lunbery, 605 F.3d at 761
(finding a Chambers violation where “[t]he excluded testimony . . . bore substantial guarantees of trustworthiness and was critical to [Lunbery’s] defense”).
c) The Excluded Evidence Of Crouse’s Guilt Was Both “Trustworthy” And “Critical” To The Defense.
Crouse’s statements were both “trustworthy” and “critical.” Statements against the declarant’s penal interest are “trustworthy” under Chambers. 410 U.S. at 300-01 (“each confession here was in a very real sense self-incriminatory and unquestionably against interest”);
Lunbery, 605 F.3d at 761 (“As in Chambers,” the declarant’s statement at issue “was against his penal interest.”). “Self-inculpatory statements have long been recognized as bearing strong indicia of reliability” because “[r]easonable people, even reasonable people who are not especially honest, tend not to make self-inculpatory statements unless they believe them to be true.” Chia, 360 F.3d at 1004-05 (latter part quoting Williamson v. United States, 512 U.S. 594, 599 (1994)); Chambers,
410 U.S. at 299 (The hearsay exception regarding statements against interest is “founded on the assumption that a person is unlikely to fabricate a statement against his own interest at the time it
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is made.”). Here, Crouse’s statements were undoubtedly against his penal interest. See Donnelly v. United States, 228 U.S. 243, 278 (1913) (Holmes, J., dissenting) (“no other statement is so much against interest as a confession of murder”). Crouse statements reflect his awareness that he was exposing himself to the harshest of criminal penalties. Moreover, the number of confessions, that
Crouse confessed both to law enforcement, and to his family and girlfriend, and the temporal proximity between Crouse’s confessions and the crime, demonstrate trustworthiness. Chambers,
410 U.S. at 300; Lunbery, 605 F.3d at 761. See Chambers, 410 U.S. at 300; Lunbery, 605 F.3d at
761; Cudjo, 698 F.3d at 766.
Crouse’s detailed confession also “was corroborated by some other evidence in the case,” including the crime scene and autopsy evidence, Hunsaker’s eyewitness testimony, demonstrates trustworthiness under Chambers. 410 U.S. at 300. Indeed, Crouse accurately described Francke’s height (6’3”) and that Francke was strong, matching the autopsy. Crouse stated that he initially took “wild stabs” at Francke, which was consistent with largely unexplained slashes in the back, upper-left sleeve area of Francke’s overcoat. Crouse said he eventually stabbed Francke in the heart, arm, and possibly the stomach, using a downward motion with a single-edged knife, which was how the State’s own expert witnesses opined the murder occurred. Crouse’s confession to striking Francke with a roundhouse right was corroborated by autopsy findings that there were abrasions and a minor contusion and laceration in the orbital rim of Francke’s left eye, and by the fact that the left arm of Francke’s glasses was bent inward when they were collected by police.
Crouse’s statement that he knocked the wind out of Francke was consistent with the sound that
Hunsaker heard, and Crouse placed the altercation 8 to 10 feet behind Francke’s car which aligned with Hunsaker’s report that his vision of the incident was not obstructed by Francke’s car.
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Crouse’s description of the direction he was facing before he turned and ran, and his retelling of his flight from the scene also matched Hunsaker’s eyewitness report.
The details Crouse related fit also with other investigation that was conducted in the case.
For example, Crouse correctly stated that Francke’s car was parked in the Dome Building parking lot, that it had significant “stuff” in it, and that when he fled the scene, the car door was left open.
Accord Tr. 6621-22. Consistent with the testimony regarding Francke’s security conscious nature,
Crouse stated Francke’s car was locked and that he used a wire to break-in. Id. at 7037, 9575-76.
Police also confirmed many of the collateral details Crouse related. For example, Crouse’s landlady found just such a wire on the floor of Crouse’s room.
To be sure, Crouse’s multiple confessions were not without contradictions. Most notably, like the third-party in Chambers, Crouse eventually recanted his confessions, thereby, necessarily, contradicting all his prior incriminating statements. Moreover, in apparent attempts to either distance himself from the crime or mitigate his culpability, Crouse’s initial statements to police involved him being at the scene and chasing the real culprits for miles, or being at the scene and stabbing Francke only at the behest of another individual who had orchestrated the murder. Other, specific details of Crouse’s later confessions appeared to either contradict some witness testimony, physical evidence, or even Crouse’s own claims. For example, the clothes Crouse said he wore did not match Hunsaker’s description. Crouse thought he had stabbed Francke in the right arm rather than the left. Francke’s blood was not found on a knife seized at Crouse’s residence that he initially had claimed was the murder weapon. However, as in other cases granting relief under
Chambers, such inaccuracies or inconsistencies do not determine the outcome of the
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“trustworthiness” analysis here. See Cudjo, 698 F.3d at 758 (alleged third-party confession was
“inconsistent to some extent with the physical evidence”).
In Cudjo, for example, on facts the Ninth Circuit held “materially indistinguishable” from
Chambers, the alleged confession included details of the killing that were directly at odds with the known fact that the victim had been hogtied before being beaten to death. Id. at 763. Additionally, the objective fact of only one set of footprints outside the victim’s residence in Cudjo seemed to preclude a finding that both the defendant’s story and the third-party confession could be true— i.e., the defendant’s own statements (that he had consensual sex with the victim earlier in the day, which explained the presence of his semen in the body) cast doubt on the veracity of the third- party confession (that the third-party killed the victim later in the day) in light of the physical evidence (one set of footprints from the victim’s residence to the residence shared by the defendant and the third-party confessor). Id. at 771 (O’Scannlain, J., dissenting). Despite these inconsistencies, the third-party confession in Cudjo met the Chambers standard of “persuasive assurances of trustworthiness.” Id. at 768.
As the Supreme Court noted in Chambers, it is for the jury to make the determination of the weight to be given to the fact that there are inconsistencies associated with the third-party-guilt evidence. Id. at 294-95; see also Crosby, 75 F.3d at 1349 (“[I]f the evidence [that someone else committed the crime] is in truth calculated to cause the jury to doubt, the court should not attempt to decide for the jury that this doubt is purely speculative and fantastic but should afford the accused every opportunity to create that doubt.”) (alterations in original) (quoting 1A John Henry
Wigmore, Evidence in Trials at Common Law § 139 (Tillers rev. 1983)). Here, the evidence of
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Crouse’s guilt bore more persuasive assurances of reliability than the evidence at issue in Cudjo, and was “trustworthy” just like the evidence in Chambers and Lunbery.
In addition to being “trustworthy,” the excluded evidence of third-party guilt was critical to Gable’s defense. As in Chambers, Cudjo, and Lunbery, the “evidence at trial pointed to a single person committing murder, and the central issue in the case was the identity of the perpetrator.”
Cudjo, 698 F.3d at 765 (citing Chambers and Lunbery). Like those cases, Gable’s defense was that “he did not kill the victim, but that an identifiable other person did.” Id. But because Gable
“was prevented from presenting this evidence, he was prevented from offering any alternate theory as to who might have committed the crime.” Lunbery, 605 F.3d at 762. Under Chambers and its progeny, the excluded evidence of third-party guilt was “critical” to the defense.
Indeed, Gable’s “defense was far less persuasive than it might have been had he been given an opportunity to subject [the third-party confessor’s] statements to cross-examination or had the other confessions been admitted.” 410 U.S. at 294. Without being able to present any evidence of Crouse’s guilt, as discussed below, the third-party-guilt defense was a nonstarter. Had Gable been able to present to the jury Crouse’s confessions along with the many corroborative facts in
Crouse’s statements—facts that matched the physical evidence and the only unbiased eyewitness—he would have had a strong defense that someone else committed the murder. Gable could have shown the jury that Crouse’s confession had been adopted by the State as its trial theory and superimposed onto Gable even though the theory was not as good a fit as it was for Crouse.
As Chambers and its progeny show, it is a much stronger defense to specifically identify an alternative suspect than to defend generally on the basis that some unspecified and unknown third- party was responsible.
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d) The Trial Court Mechanistically Applied The Oregon Rules Of Evidence.
Even where evidence is trustworthy and relevant, state evidentiary rules may permit a trial court to exclude such evidence without violating due process if a strong State interest is implicated.
Chambers, 410 U.S. at 295 (“Of course, the right to confront and to cross-examine is not absolute and may, in appropriate cases, bow to accommodate other legitimate interests in the criminal trial process.”). Thus, to defeat a due process claim based on the exclusion of trustworthy and critical third-party guilt evidence, the State must proffer a competing interest that outweighs the criminal defendant’s constitutional interests. No such interest was proffered here. The State argued for, and the trial court adopted, a highly arbitrary and mechanical application of several of the Oregon rules of evidence without reference to any principled, underlying state interest. The trial court’s resolution of the issue ultimately turned on one arbitrary fact: Crouse answered a single substantive question in the pretrial hearing before asserting his Fifth Amendment privilege to all further questions. The trial court focused on this fact despite that Crouse had only mistakenly answered the question and would invoke his Fifth Amendment privilege to all questions before the jury.
Had Crouse not answered that first question, he would have been declared unavailable.
Unavailability would have led to an analysis of the hearsay exception for statements against interest which, in turn, would have allowed the Crouse evidence to be admitted for the jury’s substantive consideration. Instead, the trial court found Crouse to be available for all purposes, even though, as a practical matter, Crouse was “available” for a single question and “unavailable” for all other questions. Ignoring or unaware of the due process concerns, the court focused exclusively on the single question that Crouse did answer and analyzed only how other evidence related to that question and answer. Reasoning that calling a witness merely to have that person
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deny committing the crime in question would be irrelevant, and since the evidentiary rules dictated that evidence offered to impeach that denial was not itself substantive, the court held that the entirety of evidence related to Crouse was simply irrelevant.
The trial court did not base its convoluted interpretation of various rules of evidence or its ultimate ruling on any underlying state interest at stake. The trial court’s hodge-podge adoption of different parts of the state evidentiary rules resulted in a ruling that evidence of third-party guilt was irrelevant based solely on the method by which it would be introduced and not because of its substance. In other words, the trial court held the third-party guilt evidence was irrelevant based not on the true probative value of the evidence to the defense case, but, rather, based on the court’s unduly strict application of state evidentiary rules. The trial court not only made an erroneous evidentiary ruling, but, in doing so, mechanically applied the state rules of evidence without regard for the competing federal constitutional right of the criminal defendant to due process of law as set out in Chambers.
e) The Exclusion Of Evidence Related To John Crouse Was Prejudicial And Warrants Habeas Relief.
The evidence that Crouse had convincingly confessed close in time to the murder to a set of facts that were later superimposed onto the evidence against Gable was so “critical” that its exclusion denied Gable a fair trial. The Supreme Court in Chambers did not engage in a separate prejudice analysis after finding the third-party evidence was trustworthy and critical. 410 U.S. at
302-03. The question of whether the evidence at issue was “critical” also answered the question of whether Mr. Chambers was prejudiced. The same is true here, and, in any event, the exclusion of the Crouse evidence also had a “substantial and injurious effect or influence in determining the jury’s verdict.” Brecht v. Abrahamson, 507 U.S. 619, 623 (1993).
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2. Gable Is Entitled To Habeas Relief Because Counsel Performed Ineffectively Under The Sixth Amendment.
The Sixth Amendment to the United States Constitution guarantees that “[i]n all criminal prosecutions, the accused shall enjoy the right . . . to have the Assistance of Counsel for his defence.” U.S. Const. amend. VI. Due process also entitles a defendant to the effective assistance of appellate counsel. Evitts v. Lucey, 469 U.S. 387, 396 (1985). These rights to counsel are the
“right to the effective assistance of counsel.” Strickland v. Washington, 466 U.S. 668, 686 (1984)
(quoting McMann v. Richardson, 397 U.S. 759, 771 n.14 (1970)). “The very premise of our adversary system of criminal justice is that partisan advocacy on both sides of a case will best promote the ultimate objective that the guilty be convicted and the innocent go free.” United States v. Cronic, 466 U.S. 648, 655 & n.14 (1984) (quoting Herring v. New York, 422 U.S. 853, 862
(1975)). “It is that ‘very premise’ that underlies and gives meaning to the Sixth Amendment. It is meant to assure fairness in the adversary criminal process.” Id. at 655-56 (internal footnote omitted) (citing United States v. Morrison, 449 U.S. 361, 364 (1981)). Thus, “[t]he right to the effective assistance of counsel is . . . the right of the accused to require the prosecution’s case to survive the crucible of meaningful adversarial testing.” Id. at 656.
Under Strickland’s two-prong test for determining whether the right to the effective assistance of counsel has been violated, the petitioner must first establish that “counsel’s performance was deficient,” and, second, to establish prejudice, that “there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. Strickland, 466 U.S. at 694.A reasonable probability is a probability sufficient to undermine confidence in the outcome.” Id.
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The Sixth Amendment and Strickland demand that effective defense counsel develop and present a coherent theory of the defense. See Tejada v. Dubois, 142 F.3d 18, 25 (1st Cir. 1998)
(finding counsel’s failure to present a coherent defense theory rendered the representation constitutionally deficient and prejudiced the defendant by depriving him of his “only defense”); see also Magill v. Dugger, 824 F.2d 879, 886 (11th Cir. 1987) (“Among counsel’s many errors was his failure to develop and present a coherent theory of defense[.]”). Where counsel fails to develop a coherent theory through cross-examination of the State’s witnesses and presentation of defense witnesses, and then fails to use closing argument to explain this theory as supported by the evidence, counsel may be found ineffective. E.g., Groseclose v. Bell, 130 F.3d 1161, 1170
(6th Cir. 1997) (finding ineffective assistance where counsel failed to develop “any defense theory” or “conduct any meaningful adversarial challenge, as shown by his failure to cross- examine more than half of the prosecution’s witnesses, to make a closing argument, and, at sentencing, to put any meaningful mitigation evidence,” and abdication of his client’s case to counsel for a co-defendant, whose defense was antagonistic).
Here, the evidence available through the discovery provided by the State naturally gave rise to a coherent “reasonable-doubt” defense narrative that involved three themes: (1) someone other than Gable killed Michael Francke, (2) the testimony of the State’s inculpatory witnesses was not reliable, and (3) no physical evidence pointed to Gable. However, during cross- examination and the defense case, the defense repeatedly and consistently missed opportunities to develop these powerful themes, and, to the contrary, even put forward evidence that undermined them. Trial counsel’s failures in a number of particulars necessary to develop these themes, along
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with counsel’s overall failure to present a coherent defense narrative that responded to the State’s evidence, individually, and collectively, constituted deficient performance that prejudiced Gable.
a) Counsel Performed Deficiently By Failing To Present Evidence That Someone Other Than Gable Killed Francke.
Strong available evidence supported the assertion that someone other than Gable committed the crime. Counsel could have fortified the third-party guilt narrative by establishing an alibi for Gable. Failure to do these things constituted deficient performance.
Relief based on the ineffectiveness of counsel to safeguard Gable’s due process right to present his third-party guilt defense is warranted to the extent that the Court believes that defense counsel did not alert the trial court to the proper authority compelling the admission of the Crouse evidence. In other words, to the extent that the right-to-present-a-defense claim above was not federalized, counsel was deficient for failing to invoke basic due process principles set out
Supreme Court precedent to support the admission of evidence of Crouse’s guilt. At the time of
Gable’s trial, Chambers was established law and had been applied in Oregon criminal proceedings.
See, e.g., Jorgensen v. Cupp, 31 Or. App. 157, 160 (1977) (“Chambers holds only that if a defendant elects to present [evidence that other individuals have confessed to the crime], he may not be barred from doing so.”). Chambers is squarely on point. Trial counsel performed deficiently by relying on state evidentiary rules alone without alerting the trial court that Chambers and Gable’s right to due process provided a constitutional overlay on the evidentiary analysis. See
Hernandez v. Cowan, 200 F.3d 995, 999 (7th Cir. 2000) (“[I]t is plain that the lawyer’s failure to
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move on the right ground failed to come up to a minimum standard of professional competence.”).70
Appellate counsel likewise should have raised the Chambers violation on appeal. Even though neither was preserved by ineffective trial counsel, the Chambers issue, along with the ex post facto issue that was raised on direct appeal, were the two strongest errors apparent from the trial court record. Appellate counsel is required to exercise reasonable professional judgment and no deference is due where appellate counsel has ignored the strongest issues in a case. Jones v.
Barnes, 463 U.S. 745, 753 (1983); see Joshua v. DeWitt, 341 F.3d 430, 441, 449-50 (6th Cir.
2003); Carter v. Bowersox, 265 F.3d 705, 716-17 (8th Cir. 2001); Roe v. Delo, 160 F.3d 416, 441
(8th Cir. 1998).71
Defense counsel also failed to adequately investigate evidence to establish an alibi at trial.
“‘[A] lawyer who fails to adequately investigate, and to introduce into evidence, evidence that demonstrates his client’s factual innocence, or that raises sufficient doubt as to that question to undermine confidence in the verdict, renders deficient performance.’” Riley v. Payne, 352 F.3d
1313, 1318 (9th Cir. 2003) (quoting Avila v. Galaza, 297 F.3d 911, 919 (9th Cir. 2002) (failure to interview a possible defense witness who could have supported self-defense theory was deficient));
70 Trial counsel had available evidence relating to several other suspects whose guilt could have been investigated and potentially presented to the jury. See supra Section III.E (discussing third-party guilt) and Appendix A (discussing other leads and suspects). Yet, counsel did little to develop such evidence. Despite the post-conviction court’s contrary finding, Resp. Ex. 345, at 93, trial counsel had not investigated Natividad beyond reviewing the State’s discovery and memorializing the Godlove statements. 71 Likewise, post-conviction counsel also missed the substantial constitutional issue. As a result of the mistakes of these attorneys, the state court never heard the Chambers claim, and that claim is now procedurally defaulted. The default is excused by Schlup and Martinez.
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accord Lord v. Wood, 184 F.3d 1083, 1093-94 (9th Cir. 1999) (failure to interview and call three witnesses whose statements were the strongest evidence for the defense case was deficient)); see also Rios v. Rocha, 299 F.3d 796, 813 (9th Cir. 2002) (if counsel had reasonably investigated and interviewed witnesses, counsel would have found five witnesses to support misidentification defense). “[C]ounsel has a duty to make reasonable investigation or to make a reasonable decision that makes particular investigations unnecessary.” Strickland, 466 U.S. at 690. Counsel’s failure to investigate will be deficient when counsel does not conduct reasonable investigation, and cannot show a strategic reason why certain investigation was unnecessary. Sanders v. Ratelle, 21 F.3d
1446, 1456 (9th Cir. 1994); Evans v. Lewis, 855 F.2d 631, 637 (9th Cir. 1988) (failure to investigate possible evidence does not constitute a trial tactic when counsel did not review relevant, available document).
Defense counsel conducted no cross-examination of Janyne Gable whatsoever. Had counsel conducted appropriate investigation of Janyne and used the eviction notice and phone records at trial, counsel would have been able to establish, through her testimony, that Gable was home at the time of the murder. Pet. Ex. A at 2-4. Indeed, Janyne had, at first, failed to recall that she had only worked until noon on the day of the murder, initially telling police that she had worked until 3:00 p.m. When confronted with her time records, Janyne recalled that she had left work early that day and testified to as much. Had she been shown the phone records and eviction notice, her recollection would have been further refreshed, and, as she says in her newly submitted
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affidavit, she would also have testified that Gable was home from dusk until 8:00 or 9:00 p.m. on
January 17, 1989.72
This alibi would have provided powerful evidence to counter the State’s use of Gable’s own statements to suggest he had no alibi, and to establish that Childers was mistaken and Harden was lying. Instead, defense counsel not only failed to present this strong evidence to establish that
Gable was not at the Dome Building at the time of the murder, but the defense instead attempted to prove a partial alibi that was easily refuted by phone records presented by the State showing that the defense witnesses’ memories were of a different day. Tr. at 8553-60, 9392-9416, 9800-
9809. Trial counsel was deficient in failing to investigate these phone records before putting on these defense witnesses. As a result of counsel’s multiple mistakes, it appeared to the jury that the
State easily refuted the best alibi evidence Gable could muster.
b) Counsel Performed Deficiently By Failing To Adequately Challenge The Reliability Of The State’s Inculpatory Witnesses.
There was also ample available evidence that the State’s witnesses were mistaken or lying and that their stories were fabricated in response to highly questionable police interrogation methods. Counsel failed to make use of this available material at trial. Additionally, two of the
State’s initial eight so-called “material” witnesses—Randy Studer and Jodie Swearingen—had
72 Counsel’s post-conviction testimony that he “re-interviewed” Janyne after she testified for the State at trial and “decided against recalling her because it was apparent she was going to remain firm in her testimony” and, further, that defense counsel “felt that even though they did have phone records of calls associated with the Gable house, those phone calls did not establish the presence of Mr. Gable,” should be afforded no weight. Resp. Ex. 345, at 78. Even assuming trial counsel did interview Janyne, he never asked her about the eviction notice or the phone records that would have jogged her memory. In fact, trial counsel presumed the phone records did not establish anything about Gable’s whereabouts, although, had counsel investigated further, he would have learned that both Janyne Gable and Kevin Walker agreed that Gable was home for the five-minute call at 5:38 p.m.
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recanted their Grand Jury testimony prior to Gable’s trial, giving the defense a clear path to explain to the jury why each had fabricated testimony against Gable. However, defense counsel failed to use these witnesses to cast doubt on the testimony of the State’s witnesses by eliciting testimony about interrogation tactics and by highlighting that the recanted testimony of Studer and
Swearingen was so interwoven with the testimony of the State’s witnesses, particularly, that of
Perkins and Harden, that the statements of those witnesses were simply not believable.
First, a significant deficiency in trial counsel’s performance was the failure to investigate
Studer’s pre-trial recantation. Trial counsel apparently was unaware at the time of trial that Studer had recanted his prior statements incriminating Gable. Although the State made no mention of
Studer in its opening statement, the defense told the jury that Studer would be a witness against
Gable and tried to discredit him, referring to him as a “common criminal.” Tr. at 5935. However, by that time, the State had already provided the defense discovery in the form of a two-page polygraph examination report that indicated that Studer had recanted his testimony that incriminated Gable. Pet. Ex. E at 440-45.73 This April 17, 1991, polygraph report states that
Studer previously told the Oregon State Police that Gable had confessed to him, Ross, and Perkins, but recently “Mr. Studor [sic] indicated that those statements were not accurate, that he had lied when he had given that information.” Id.
During that examination, in the presence of his attorney, Studer explained that he had previously lied, both to the Oregon State Police and under oath in his testimony to the Grand Jury.
Id. Studer said he lied because Linda Perkins made a statement that was polygraphed as true. Id.
73 A discovery log shows that the defense received Studer’s recantation prior to opening statements. Pet. Ex. E at 450.
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He gave police a statement similar to Perkins’ statement, which he knew to be a lie, and he had no idea how he passed the polygraph test. Id. Studer stated that Gable never confessed as Perkins said he had, and that Perkins may have made statements to get her name in the paper or to get her daughter away from the drug crowd. Id. Despite this potential testimony that was both exculpatory of Gable and would impeach Linda Perkins, Studer was never contacted by defense counsel. Pet.
Ex. A at 31. After opening as the defense did, the defense could not use Studer as a witness.
Studer could have testified about the police interrogation tactics that caused him, like
Swearingen, to falsify his Grand Jury testimony. Such evidence would have cast further doubt on the veracity of the other inculpatory witnesses, and, importantly, would have bolstered
Swearingen’s testimony by mirroring the very reasons she provided for having lied to the Grand
Jury. Where counsel fails to contact or interview a witness with relevant information, as counsel did with regard to Studer, counsel cannot claim his decision not to call that witness to the stand was a strategic choice. See Lord, 184 F.3d at 1095 & n.8 (“[C]ounsel cannot make [strategic] judgments about [whether to call to the stand] a witness without looking him in the eye and hearing him tell his story.”).
Second, defense counsel also failed to effectively use Jodie Swearingen as a defense witness. Primarily, counsel failed to use the cross-examination of Harden in tandem with the testimony of Swearingen to show how their two stories were riddled with inconsistencies, but, through numerous interrogations, slowly progressed toward a largely consistent story. Counsel failed to use the police reports with Harden and Swearingen to show how many versions of their testimony each told and to draw out the numerous inconsistencies. For example, even after they inculpated Gable, Swearingen and Harden told police numerous different stories, in December
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1989 and January 1990, about how they got to the Dome Building: Swearingen walked to the
Dome Building with Gable; Harden drove Swearingen and Gable there; Swearingen called Harden for a ride from the Dome Building; Swearingen called Harden for a ride from the General Hospital;
Harden drove Gable to the North Parking Lot and then waited with Swearingen in the Dome
Building circular driveway; Swearingen and Gable drove in Gable’s car. See supra Section III.C.3.
At trial, Swearingen said that all of her previous statements to police were lies, but defense counsel failed to ask Swearingen about the various stories to show how they were intertwined with changes to Harden’s story to show that his testimony was not credible.
After the State elicited select parts of Swearingen’s Grand Jury testimony during cross- examination (which the jury was permitted to consider as substantive evidence), it was ineffective for trial counsel not to renew the defense’s pre-trial discovery request to obtain access to the record of Swearingen’s Grand Jury testimony for the purpose of rehabilitating her. Defense counsel inexplicably failed to move for production of that testimony. Given the myriad contradictions between the accounts given by Swearingen and Harden in interviews prior to their Grand Jury appearances, and after the State used the prior testimony extensively on cross-examination, it was critical that defense counsel have access to this material to rehabilitate Swearingen. Defense counsel’s inability to effectively use, and particularly to rehabilitate, Swearingen as a defense witness, including counsel’s abandonment of her in closing argument, effectively made
Swearingen a witness for the State.
Third, defense counsel was also ineffective in failing to respond to the State’s simple explanation for the changing stories of its witnesses, i.e., that the witnesses did not originally implicate Gable because they did not want to be labeled “snitches.” Once again, there was
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powerful evidence available to trial counsel to refute the State’s proffered excuse, but counsel failed to make use of it. Counsel should have adduced evidence showing: (1) the “material” witnesses “snitched” on Gable from the first time they were interviewed, just not implicating him in the murder; and (2) even once the “material” witnesses were willing to inculpate Gable in the
Francke murder, numerous minor details about their stories continued to change.
Ample evidence available to support these points went unutilized. Numerous of the Gable associates who eventually implicated him initially told police that he had no knowledge that Gable was involved in the Francke murder, but, in the same interviews, readily “snitched” on Gable for dealing drugs, selling guns, and, generally, engaging in criminal activity short of the Francke murder. Pet. Ex. E at 19-27, 40-52, 152-55, 254-58, 264-67.
Available evidence also could have shown the numerous changes in the witnesses’ stories after they had already decided to implicate Gable in the Francke murder. For example, after Gesner told police Gable confessed to the murder and provided him evidence to dispose of, his story continued to change in immaterial ways about which Gesner would have had no reason to lie at that point. For example, Gesner first described the clothing Gable gave him to dispose of as including “Gable’s shirt [and] a pair of blue jeans,” but at trial, he testified he did not look at the items. Gesner first told the Task Force that he disposed of the items Gable gave him by throwing them off a bridge. At trial, he said he threw them in the river from Sunset Park. As discussed above, counsel also could have shown similar post-inculpation incremental changes in the testimony of the other Gable associates that were best explained by the fact that the witnesses were fabricating their testimony. Development of this evidence that inculpatory statements of several witnesses became more consistent over the course of numerous interrogations, coupled with
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evidence of the police interrogation tactics to which the witnesses were responding, was critical to
Gable’s defense.74 Counsel’s failure to do so was deficient performance, as was post-conviction counsel’s failure to later raise a related claim.
c) Counsel Performed Deficiently By Casting Doubt On The Fact That No Physical Evidence Linked Gable To The Murder.
One of the strongest facts supporting Gable’s innocence was that no physical evidence tied him to the murder. Yet, defense counsel, through cross-examination and through defense witnesses, inexplicably undermined this powerful evidence of innocence by suggesting evidence may have been lost due to faulty crime scene investigation. E.g., Tr. at 5928-30, 6008-10, 6046-
48, 6054 6086-88, 6136-67, 6141-43, 6163-64, 6466, 9443-54 (“The issue is what happened to potential critical physical evidence that could have been saved if the initial Salem Police Officers would have done their job.”). Yet, after telling the jury “we will never know” what evidence had been “lost” or “what [other physical evidence] was there [at the crime scene],” id. at 9943-44, defense counsel argued: “Not one single shred of physical evidence that [sic] links Frank Gable,
74 The manner in which the defense sought to introduce evidence relating to the Task Force’s interrogation tactics was flawed. Instead, of establishing police coercion through Studer and Swearingen, and coupling that evidence with evidence (that could have been elicited through cross-examination) of the willingness of the State’s witnesses to “snitch” from the outset, and evidence of internal inconsistencies of their statements, defense counsel sought to bring in collateral evidence of the Task Force’s police interrogation tactics. The trial court accepted that evidence showing “coercion” would be relevant, Tr. at 8789, but the manner in which defense counsel sought to admit the evidence led to its exclusion. As with the Crouse evidence, trial counsel failed to effectively present this critical, relevant evidence of the Task Force’s interrogation tactics in a way that demonstrated its admissibility. In the final calculus, however, the trial court took overly narrow view of relevance with regard to such defense evidence, while it took a relatively expansive view of relevance with regard to the State’s evidence (e.g., admitting evidence of Janyne’s keys or Gable’s knowledge of the OSH tunnels). The resultant imbalance in the evidence at trial in favor of the State, prejudiced Gable.
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the defendant, to the murder of Michael Francke. There is none.” Tr. at 9948; see also 9950.
Attacking the thoroughness of the crime scene investigation was an incompetent defense strategy given that none of the crime scene evidence could be linked to Gable nor provided evidence to support the State’s robbery theory. Undermining that investigation implicitly suggested that, had a better investigation been done, evidence against Gable might have been recovered. Under the circumstances of this case, no reasonable attorney would have pursued this strategy.
d) Closing Arguments Highlighted, And Exacerbated The Prejudicial Impact Of, Counsel’s Deficient Performance.
Defense counsel’s failures to present the above evidence in support of a coherent defense theory led to an inept closing argument. For example, more than half of the defense closing addressed the crime scene, including criticizing the crime scene investigation and suggesting that potential physical evidence was “lost,” despite that no physical evidence tied Gable to the murder.
Defense counsel also questioned the time and location of the attack, essentially calling into question whether Hunsaker was actually an eyewitness. Tr. at 9940-56, 9962-64, 9968-70. Such an approach made little sense given the numerous inconsistencies between the account of
Hunsaker, an objective witness, and that of Harden. Defense counsel failed to expose these contradictions to explain why Hunsaker’s eyewitness account was more credible than Harden’s now-recanted testimony. The few contradictions between those witnesses that counsel did raise were undermined by defense counsel’s argument that Hunsaker may not have witnessed the crime at all. Reasonable counsel would have embraced Hunsaker’s account because, along with
Swearingen’s testimony, it provided the strongest evidence to combat the more damaging purported eyewitness testimony of Harden.
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Because defense counsel had failed to develop the inconsistencies in or among the other witnesses’ statements, the defense was left with little more than innuendo to support its argument in closing that the State’s witnesses against Gable were liars or mistaken. Counsel was unable to show that the State’s claim that the “material” witnesses initially lied because they wanted to avoid being labeled “snitches” was inconsistent with the facts. To make matters worse, after failing to rehabilitate Swearingen, who should have been a powerful defense witness, defense counsel sought in closing argument to utterly discredit her. Even though she gave exculpatory testimony, defense counsel told the jury that Swearingen, like Harden, was lying to the jury from the witness stand, repeatedly questioning whether she had ever told the truth. E.g., Tr. at 9959-61 (“Has she ever . . . told us the truth?”), 9970-71 (“And what she did here is she got up and lied. And how many times she lied and whether or not she ever told the truth, who knows?”). It was incumbent upon defense counsel to explain to the jury why it should believe that Swearingen’s exculpatory testimony was the truth.
Defense counsel’s failures during cross-examination and the defense case also allowed the
State to present a clear—albeit misleading—narrative in closing: that the trial testimony of its witnesses could be believed because the witnesses, along with the physical evidence, corroborated each other, and their testimony all fit together like “pieces of a puzzle.” Tr. at 9832-34. For example, the State repeatedly stated that Harden and Hunsaker were in lockstep on a key point on which their testimony was not the same—whether Gable was in Francke’s car when he committed the murder. Specifically, with regard to Harden, Swearingen, Hunsaker, Childers and Walsh, the
State declared: “They all put Frank Gable in that car. In Michael Francke’s car on the night of
January 17th. And what is interesting and if you listen to the testimony, what is interesting is that
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they all put Frank Gable coming out of that car in much the same fashion.” Tr. at 9841; see also id. at 9929. Notably, even despite counsel’s failures to fully develop the contradictions between the supposed eyewitnesses’ testimony, these statements contradict the evidence. Hunsaker testified that he did not see Francke’s vehicle, not to mention that he testified that he did not see
Harden or his vehicle, which would have been in Hunsaker’s line of sight if Harden was where he testified he was. Likewise, the State linked the testimony of Hunsaker, Childers and Swearingen, saying that Childers “sees Frank Gable pulling out of a parking area in his car right exactly where
Wayne Hunsaker and Jodie Swearingen say he run [sic].” Id. at 9884. Yet, Hunsaker said he saw the assailant running west more than a block away from where Childers said he saw Gable driving east.
During closing, the State also stretched the physical evidence to match what Childers said
Gable purportedly said in his confession. Specifically, even though the State’s own witness testified that there were only two “stab wounds,” the State argued that there were three “stab wounds,” converting a supposed slash that grazed Francke’s coat into a third stab wound so the
State could argue that Childers’ testimony that Gable told Childers “he stabbed him 3-4 times in the heart” corroborated the physical evidence in the case. Id. at 9890.
The State also relied heavily on Swearingen’s Grand Jury testimony, which not only had never been subjected to any meaningful cross-examination, but which Swearingen had recanted and swore at trial was false. Id. at 9878-81. For example, the State relied on Swearingen’s recanted
Grand Jury testimony alone to argue that she and Gable drove to the Dome Building together and parked to the west near the Old Salem Hospital and that Gable’s motive was to obtain “snitch papers.” Id. at 9879. There was no other evidence in the case to support this, but it was important
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to the State’s corroboration of Hunsaker. Although Swearingen’s various pre-Grand Jury accounts could not be squared with Hunsaker’s testimony, the State argued to the jury in closing that
Harden’s trial testimony and Swearingen’s Grand Jury testimony were consistent. Tr. at 9852-53.
Defense counsel had failed to close this gap through effective cross-examination.
The State further capitalized on defense counsel’s failure to take Swearingen through her numerous police interviews when the State argued in closing that Swearingen did not inculpate
Gable until after she received immunity, which was wholly unsupported by police reports pre- dating the grant of immunity. Nevertheless, the State told the jury in closing that, during her first interview in September: “Jodie at that point says I don’t know nothing. Don’t have any information. Can’t help you.” Id. at 9872. The Task Force’s reports indicate, to the contrary, that
Swearingen first inculpated Gable, albeit in a veiled way, in her September 1989 interviews. Pet.
Ex. E at 202-07. The State told the jury that Swearingen thereafter made spontaneous statements about her involvement (i.e., to workers at the juvenile detention facility where she lived) “long before police even have an opportunity to interview her and long before she entered into that immunity agreement.” Tr. at 9881. Yet, the statements the State relied upon were made after the police first contacted Swearingen in September.
Next, the State argued that Swearingen went on the run and, when she was arrested a month later, hired an attorney who told police she would not talk to them until she had immunity.
Specifically, the State said: “The police aren’t allowed to start interviewing her until after that letter of immunity is signed [in December 1989].” Id. at 9873-75. But Swearingen made herself available to the Task Force for an Ackom polygraph a month before she received immunity, and fully implicated Gable before receiving immunity. Pet. Ex. E at 356. Yet, the State even reiterated
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this point, improperly stating that Swearingen would not need immunity if she did not know anything: “this kid was real insistent, and the State Police and the District Attorney’s office didn’t get to talk to her until that [immunity] letter was signed by me, and her, and her lawyer. Why did she need it if she didn’t know anything?” Tr. at 9877-78.
The State’s closing argument regarding the timing of Swearingen’s inculpatory statements is also concerning as it had the effect of making Swearingen’s inculpatory testimony appear more likely to be true than was supported by the facts. The State is not permitted to leave the jury with a misimpression about the evidence. Alcorta v. Texas, 355 U.S. 28, 31-32 (1957) (prosecutor encouraged witness to give misleading testimony unless specifically asked, in which case he should answer truthfully); Hayes v. Brown, 399 F.3d 972, 981 (9th Cir. 2005) (“It is reprehensible for the State to seek refuge in the claim that a witness did not commit perjury, when the witness unknowingly presents false testimony at the behest of the State.”). Indeed, misrepresenting facts in evidence can amount to substantial error because doing so “may profoundly impress a jury and may have a significant impact on the jury’s deliberations.” Donnelly, 416 U.S. at 646 (internal quotation marks omitted). Misrepresenting the evidence during closing argument may “so infect[] the trial with unfairness as to make the resulting conviction a denial of due process.” Darden v.
Wainwright, 477 U.S. 168, 181 (1986) (quoting Donnelly, 416 U.S. at 643). The State exploited defense counsel’s mistakes and improperly characterized the evidence, infecting the trial with prejudicial error.75
75 In addition, the inconsistencies in the witnesses’ statements revealed many reasons to doubt whether the “material” witnesses were being truthful prior to trial. Just as these red flags provided fodder for cross-examination, they also should have given the State pause about the credibility of its case against Gable and prompted further investigation to verify
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e) Gable Was Prejudiced By Counsel’s Deficient Performance.
Counsel’s failures to investigate and prepare for trial, to call important exculpatory witnesses, to cross-examine the State’s witnesses on these key issues, and to provide the jury with a coherent narrative of Gable’s innocence during closing argument, prejudiced Gable. Ineffective assistance cases such as this one must be evaluated “in light of the strength of the government’s case.” Johnson v. Baldwin, 114 F.3d 835, 838 (9th Cir. 1997) (citing Eggleston v. United States,
798 F.2d 374, 376 (9th Cir. 1986)). Here, the State’s case was circumstantial. There was no physical evidence to tie Gable to the crime. The case hinged on the testimony of the State’s material witnesses, which could have been called into question if counsel had: questioned Janyne about the eviction notice to establish Gable’s alibi; called Randy Studer to impeach Linda Perkins and bolster Swearingen’s recantation; drawn out the inconsistencies between the testimony of
Harden and each of Hunsaker and Swearingen, particularly, through Swearingen’s testimony; and made appropriate use of the police reports received in discovery to call into question the reliability of the testimony of the other “material” witnesses by exposing inconsistencies and the
the stories of the material witnesses. See Napue v. Illinois, 360 U.S. 264, 269, 271-72 (1959); see also Northern Mariana Islands v. Bowie, 243 F.3d 1109, 1117-18, 1125 (9th Cir. 2001) (due process violated the state knew or should have known that the testimony of its witnesses was false). This rule also applies to testimony about whether the witness received benefits for their testimony and what those benefits were. Napue, 360 U.S. at 269- 71. Here, it appears that in an effort to avoid the appearance that it was giving benefits to the witnesses, the State promised future benefits to some of its witnesses, Tr. at 8765-83, and prepared its witnesses to emphatically tell the jury they had received no benefits in exchange for their testimony, e.g., Tr. at 8004-07, 8182-83. This appears to be false at least in the case of Gesner’s testimony that he did not receive State intervention with regard to whether his state and federal sentences ran concurrently. Pet. Ex. C at 6, 23-62. The judgments in his criminal cases reflect that the state and federal sentences should have run consecutively and that Gesner should have done his entire twenty-one-month federal sentence before starting his state sentences, but apparently this did not occur. Id.
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interrogation pattern that produced their now-recanted testimony. Had counsel done any one of these things, there is a reasonable probability that the outcome of the case would have been different. Strickland, 466 U.S. at 694.
This Court may also consider the errors in combination and grant relief if the cumulative effect of counsel’s errors satisfies the Strickland prejudice test. See Harris v. Wood, 64 F.3d 1432,
1438 (9th Cir. 1995) (finding that the “cumulative impact of [counsel’s] deficiencies prejudiced
[the] defense” because, the “plethora and gravity” of counsel’s deficiencies rendered the proceeding fundamentally unfair); accord Berryman v. Morton, 100 F.3d 1089 (3d Cir. 1996)
(finding ineffective assistance where counsel failed to use prior testimony to impeach key witness on cross-examination, combined with failure to investigate other witnesses who could have cast doubt on key witnesses’ testimony, among other things). Where the Ninth Circuit finds
“cumulative” prejudice, it “obviate[s] the need to analyze the individual prejudicial effect of each deficiency.” Harris, 64 F.3d at 1439 (citing Mak v. Blodgett, 970 F.2d 614, 622 (9th Cir. 1992)).
Here, trial counsel’s multiple shortcomings, individually, and cumulatively, failed to effectively challenge the State’s evidence and, as a result, prejudiced Gable, warranting habeas relief.
B. Habeas Relief is Warranted Because Gable’s Sentence Violates The Ex Post Facto Clause And His Counsel Failed To Effectively Safeguard His Ex Post Facto Rights.
In this aggravated murder case, Gable was sentenced under an ex post facto law. Counsel failed to object to the application of a new, harsher law at sentencing, leaving the ex post facto challenge unpreserved for appeal. The jury rejected the death penalty, and Gable was sentenced under the ex post facto law to a term of life without parole. Under the law in effect at the time of his crime, Gable would have received a sentence of life with the possibility of parole. Despite
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having provided ex post facto relief to another defendant in the same position in relation to the new law, the Oregon appellate courts refused to address Gable’s ex post facto claim because counsel failed to preserve the challenge. Yet, despite that counsel’s ineffective mistake was the reason Gable did not receive relief on appeal, the state court also denied him post-conviction relief.
This Court is now empowered to address the ex post facto issue directly. The analysis below supports relief on Grounds 4 and 15(P) of the Amended Petition. Id. Both grounds are exhausted, and relief is warranted under the applicable AEDPA standard because the state court decisions on both the direct appeal ex post facto claim and the Sixth Amendment claim were “contrary to” or an “unreasonable application of” clearly established Supreme Court precedent, or an
“unreasonable determination of the facts in light of the state-court record.” 28 U.S.C. § 2254(d).
1. The Ex Post Facto Clause Of The Constitution Bars Application Of A Later-Enacted Statute That Increases The Penalty For A Crime.
The Ex Post Facto Clause of the Federal Constitution bars application of a criminal statute that makes punishment for a crime more burdensome if the statute was enacted after the commission of the crime. State v. Wille, 317 Or. 487, 502-03 (1993) (citing Collins v. Youngblood,
497 U.S. 37, 41 (1990)); Weaver v. Graham, 450 U.S. 24, 28-29 (1981); Lindsey v. Washington,
301 U.S. 397, 401 (1937) (“It could hardly be thought that, if a punishment for murder of life imprisonment or death were changed to death alone, the latter penalty could be applied to homicide committed before the change.”). The proscription against ex post facto laws is based upon the
“notion that persons have a right to fair warning of that conduct which will give rise to criminal penalties” which is “fundamental to our concept of constitutional liberty.” Marks v. United States,
430 U.S. 188, 191-92 (1977).
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a) The State Court Rulings Regarding Gable’s Ex Post Facto Rights.
At the time of the crime in 1989, Oregon law provided for only two sentencing options in a capital case: life with the possibility of parole (so-called “ordinary life”) and death. Or. Rev.
Stat. §§ 163.105, 163.150 (1987), amended by Or. Laws 1989, ch. 720, § 1. A defendant convicted of aggravated murder would be sentenced to ordinary life if the jury did not impose the death penalty. Or. Rev. Stat. § 163.150(1)(e) (1987). By the time of Gable’s 1991 trial, an amendment to these provisions made the presumptive sentence life imprisonment without the possibility of parole (“true life”) if the jury rejected the death penalty. Or. Rev. Stat. § 163.150(2)(a) (1989).
Under the new law, a sentence of ordinary life could only be imposed if ten members of the jury agreed there were sufficient mitigating circumstances. Id. This amendment increased the presumptive punishment if the jury rejected the death penalty. Wille, 317 Or. at 502-05.
During the penalty-phase trial, counsel failed to advise Gable that he had a right to challenge the application of this new law to his case on ex post facto grounds, and counsel did not object to the retroactive application of the new law to his case. Gable v. State, 203 Or. App. 710,
733-34, 126 P.3d 739, 752-53 (2006). The trial court instructed Gable’s penalty-phase jury under the new law. Id. After rejecting the death penalty, the jury answered in the negative to whether mitigating circumstances warranted a sentence of ordinary life, and Gable was sentenced to true life. Id.
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(1) On Direct Appeal, The State Court Declined To Grant Relief On The Ex Post Facto Claim Because It Was Unpreserved.
On direct appeal, Gable argued that the trial court imposed an unlawful sentence when it retroactively applied the new amendment in his case and sentenced him to true life. Resp. Ex. 106, at 126-31. His brief cited the Oregon Court of Appeals decision in State v. Wille, 115 Or. App.
47, 839 P.2d 712 (1992), which held that the application of the 1989 amendments violated the ex post facto prohibition if the murder at issue occurred prior to the amendment. Id. at 59.
In response, the State argued that the Court of Appeals should not address the ex post facto issue in Gable’s case because of trial counsel’s failure to object. Resp. Ex. 107, at 95-98. The
State conceded that the claimed error was one of law and clear on the record, but nonetheless urged the court to exercise its discretion not to reach the plain error. Id. at 96. The State also argued:
“Defendant suffers no prejudice by leaving this issue to post-conviction. Even if Defendant cannot be sentenced to true life, he still must serve a 30-year minimum sentence.” Id. at 97.
Before the Oregon Court of Appeals ruled in Gable’s case, the Oregon Supreme Court affirmed the intermediate appellate court in State v. Wille, 317 Or. 487, 858 P.2d 128 (1993), and held that the imposition of the sentence of true life, rather than ordinary life, for a murder occurring before the statutory amendments violated the defendant’s constitutional guarantees against ex post facto laws because the new law increased the presumptive punishment if the jury rejected the death penalty. Id. at 505. The Oregon Supreme Court remanded Wille for re-sentencing to a term of ordinary life. Id.
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Despite Wille, the Oregon Court of Appeals refused to address the issue in Gable’s case, stating: “The claim of error is unpreserved and we decline to address it.” Gable, 127 Or. App. at
332, and review by the Oregon Supreme Court was denied, Gable, 319 Or. 274.
(2) In The Post-Conviction Proceedings, The State Courts Found That Counsel Was Ineffective, But That Gable Was Not Prejudiced Under Strickland.
Gable thereafter sought post-conviction relief on the ground he raises here: that he was denied the effective assistance of counsel under the Sixth Amendment when counsel failed to:
“Object on the grounds of Ex Post Facto [to] the Court’s submitting to the jury in the penalty phase of the trial the possibility of the petitioner being sentenced to life without the possibility of parole.”
Resp. Ex. 155, at 3-4.
Gable was denied relief in the trial court, Resp. Ex. 345, at 96-97, but the Court of Appeals reversed, finding counsel’s performance ineffective. Gable v. State, 203 Or. App. 710, 734, 126
P.3d 739, 753 (2006) (counsel “was constitutionally deficient with respect to the ex post facto matter,”). The appellate court found that the trial court erred by concluding that Gable had waived his ex post facto rights because “there is no evidence in this record that Petitioner knew of his ex post facto rights regarding the application of the amended version of Or. Rev. Stat. § 163.150, much less that he intentionally waived a ‘known’ right,” and counsel could not waive the right for
Gable. Id. at 733-34.
With respect to Strickland’s prejudice inquiry, the court said: “Here, in the most literal sense, availability of the ‘true life’ sentence had more than a ‘tendency’ to affect the ultimate outcome of the prosecution—that is the sentence that Petitioner actually received.” Id. at 735. The court then grafted an additional requirement onto the prejudice analysis, stating: “However, the
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appropriate inquiry regarding actionable prejudice is considerably more sophisticated than such sophism” because, if Gable would have waived his rights, he “was not prejudiced by his counsel’s default.” Id. The court vacated and remanded the case for the post-conviction court to make factual findings on whether Gable was prejudiced. Id.76
On remand, the post-conviction court refused to consider any new evidence except Gable’s testimony that his position remained the same, i.e., that he would not have waived his ex post facto right had he known he had such a right because he would have wanted the jury to decide between life with parole and death. PCR Remand Tr. at 14-16, 39. Purporting to rule “[w]ithout resorting to speculation,” the post-conviction court held that Gable’s testimony was “simply not credible” and that his “hypothetical reason for wanting to reject the ‘true life’ option doesn’t make much sense under a rationale [sic] analysis,” and, as no other evidence of what he would have done was before the court, Gable had not met his burden to establish prejudice. Resp. Ex. 371.
Gable again appealed, claiming in a pro se brief that he was prejudiced by trial counsel’s failure to safeguard his ex post facto rights. The Court of Appeals affirmed without opinion. Gable v. State, 243 Or. App. 389, 256 P.3d 1099 (2011). The Oregon Supreme Court granted review.
Gable v. State, 351 Or. 640, 275 P.3d 170 (2012).
The Oregon Supreme Court affirmed finding Gable had not established Strickland prejudice because he had not proven what he would have done had he been properly advised of his
76 Before the case was remanded, Gable sought discretionary review by the Oregon Supreme Court, exhausting his other claims and claiming that the Oregon Court of Appeals was unnecessarily complicating the Strickland prejudice analysis. As he has always maintained, Gable argued that he was prejudiced by the application of the ex post facto law, and that the proper remedy was to impose a term of life with parole. The Oregon Supreme Court denied review. Gables [sic] v. State, 341 Or. 216, 140 P.3d 1133 (2006).
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ex post facto rights by his attorney two decades earlier. Gable v. State, 353 Or. 750, 762-64, 305
P.3d 85 (2013) (Resp. Ex. 384). The majority held that, because there could conceivably be a strategic reason for Petitioner to waive his ex post facto rights, “the controlling question . . . is whether the receipt of correct advice about a possible ex post facto objection would have made a difference to petitioner in this case.” Id. at 763. The majority found that “[t]he only evidence on that point is petitioner’s assertion that he would have insisted on exercising his ex post facto rights” but that “the post-conviction court did not believe petitioner.” Id. For the majority, the post- conviction trial court’s adverse credibility finding “end[ed] the matter.” Id.
One Justice dissented, stating that the majority had mischaracterized the central issue in the case. Id. at 764 (Walters, J., dissenting). The dissent explained that the question in the case is whether Gable was prejudiced by his lawyer’s failure to object to the application of the later- enacted, more-onerous sentencing law, and that such question may be resolved “without speculation” because “we know with certainty that counsel’s failure to object prejudiced petitioner.” Id. at 764-65 (footnote omitted). The dissent explained that “we know” that Gable was prejudiced because the Oregon Supreme Court held in the Wille case that application of the new law to someone in his circumstances was an ex post facto violation, and, but for counsel’s failure to object, Gable would have received appellate relief under Wille. Id. at 765. The dissent explained that it was neither necessary nor appropriate to focus on whether “petitioner’s testimony about what he would have done was credible” because “[w]e know for a fact that petitioner 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. The United States Supreme Court denied certiorari. Gable v.
Oregon, 134 S. Ct. 651 (Nov. 18, 2013).
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2. Gable Is Entitled To Habeas Relief Because His Sentence Violates The Ex Post Facto Clause.
The federal circuit courts routinely hold that imposing on a criminal defendant a sentence that the law did not authorize at the time he committed his crime is plain error that requires remand for re-sentencing under the law in effect at the time of the crime. United States v. Gonzalez, 238
F. App’x 350, 355-56 (10th Cir. 2007); United States v. Peters, 147 F. App’x 836, 838 (11th Cir.
2005) (unpub’d); United States v. Hickman, 331 F.3d 439, 447-48 (5th Cir. 2003); United States v. Thompson, 113 F.3d 13, 14-15 (2d Cir. 1997); accord United States v. Dozier, 119 F.3d 239,
244-45 (3d Cir. 1997), abrogated on other grounds by Johnson v. United States, 529 U.S. 694
(2000). For example, federal courts routinely find plain error if the application of an incorrect version of the federal Sentencing Guidelines results in higher sentencing range. E.g., United States v. Davis, 397 F.3d 340, 349-50 (6th Cir. 2005) (collecting cases). The error here was plain as well.
In directly analogous circumstances, more than two decades ago, the Oregon Supreme
Court held in Wille that the sentencing amendment at issue in this case made the punishment for aggravated murder more burdensome by increasing the presumptive penalty applicable where the jury rejects the death penalty. 317 Or. at 505. Where application of this ex post facto law results in a true-life sentence that was unavailable at the time of the crime, the resulting sentence is unlawful. Id. at 502-05.
Gable’s situation is indistinguishable from that of the defendant in Wille in terms of the application of this new law. Both Wille and Gable were convicted of murders that occurred before the 1989 change in the law, and both juries were instructed under the new law. Both men were acquitted of the death penalty and sentenced to life without the possibility of parole. Like the true- life sentence imposed in Wille, Gable’s true-life sentence violates the prohibition on retroactive
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application of ex post facto laws. The only distinction in the cases—that counsel’s ineffectiveness left Gable subject to a plain error standard of appellate review—should make no difference in the outcome demanded by the Constitution. The State here argued on direct appeal that Gable would not be prejudiced if the decision on this ex post facto issue was postponed until the post-conviction proceedings. Yet, as the federal courts recognize the appropriate place to address this egregious constitutional sentencing error was in the direct appeal. Even under the deferential AEDPA standard, the error was so plain, and the prejudice so significant, that habeas relief is warranted.
Gable should receive the same relief that the defendant in Wille was awarded more than two decades ago—a sentence to life with parole. Weaver, 450 U.S. at 36 n.22 (“The proper relief upon a conclusion that a state prisoner is being treated under an ex post facto law is to remand to permit the state court to apply, if possible, the law in place when his crime occurred.”); see also
Williams v. Roe, 421 F.3d 883, 887-88 (9th Cir 2005) (granting habeas corpus relief for an ex post facto violation and ordering application of law in effect at the time of the crime); Nulph v. Faatz,
27 F.3d 451, 456 (9th Cir 1994) (same). Double jeopardy principles bar re-litigation of the question of whether the death penalty is appropriate in this case. Bullington v. Missouri, 451 U.S.
430, 445-46 (1981). Specifically, where, as here, a State has “explicitly require[d] the jury to determine whether the prosecution has ‘proved its case’” for death, and the sentencing jury rejects capital punishment, the jury has “acquitted the defendant of whatever was necessary to impose the death sentence” and double jeopardy attaches. Id. at 438-40, 444-45.77 The only remedy for the ex post facto violation is, as in Wille, to vacate the true life judgment and impose ordinary life.
77 Notably, in the post-conviction appeal, the State raised the specter of Gable facing the death penalty again if he were granted relief on his Sixth Amendment claim. Resp. Ex. 359-
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3. Gable Is Entitled To Habeas Relief Because Counsel’s Errors With Regard To His Ex Post Facto Rights Violated the Sixth Amendment.
Counsel’s core function is to guide his client through the criminal justice process and to protect the other fundamental rights of his client. The Supreme Court said long ago: “Of all the rights that an accused person has, the right to be represented by counsel is by far the most pervasive, for it affects his ability to assert any other rights he may have.” See Kimmelman v.
Morrison, 477 U.S. 365, 377 (1986) (quoting Schaefer, Federalism and State Criminal Procedure,
70 Harv. L. Rev. 1, 8 (1956)); see also Lafler v. Cooper, 132 S. Ct. 1376, 1385-86 (2012) (citing
Glover v. United States, 531 U.S. 198, 203-04 (2001); Mempa v. Rhay, 389 U.S. 128, 136-37
(1967); Wiggins v. Smith, 539 U.S. 510, 534, 538 (2003)); Missouri v. Frye, 132 S. Ct. 1399, 1408
(2012) (defense counsel has duties to raise potentially meritorious objections and to communicate with his client, and the duty to protect a client’s rights extends to sentencing proceedings). Counsel here had a duty to be aware of the relevant law and to advise his client, a capital client, that he had an ex post facto right at sentencing to be free from new laws that increased the punishment for his crime after its commission.
a) Counsel’s Performance With Regard To Gable’s Ex Post Facto Rights Was Deficient.
In the alternative, this Court is empowered to granted relief on the Sixth Amendment claim because counsel’s mistake led to clear error. The Oregon courts correctly concluded that counsel in this case provided assistance that fell below the standard of care, satisfying Strickland’s first
62. Nevertheless, despite the specter of death, Gable maintained when he testified on remand that he would want the jury instructed on only life or death.
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prong, when he failed to object to the imposition of an ex post facto law after neither advising
Gable of his ex post facto rights nor obtaining Gable’s knowing waiver.
If counsel believes for some strategic reason that the client should agree to application of a new, harsher law, counsel is obliged to inform the client of the issue and obtain his client’s knowing waiver of his ex post facto rights before counsel acquiesces in the application of the harsher sentencing law. In the absence of an express personal waiver by Gable, the ex post facto law could not be applied lawfully and the true life sentence could not be imposed in his case.
Where, as here, counsel fails to object to an unlawful sentence, Strickland’s first prong is satisfied.
Tilcock v. Budge, 538 F.3d 1138, 1146 (9th Cir. 2008) (counsel’s failure to object to non-qualifying predicate convictions that were basis for habitual offender sentence unreasonable under
Strickland).
b) Gable Was Prejudiced By Counsel’s Failures.
The finding of the Oregon courts that Gable was not prejudiced within the meaning of
Strickland was objectively unreasonable. Gable had a fundamental constitutional right not to be sentenced under an ex post facto law. Counsel’s mistakes prevented Gable from making any knowing or intelligent decision regarding his important constitutional right prohibiting ex post facto punishment, and, in fact actually resulted in the punishment that, in the absence of a valid waiver, was unconstitutional. “It follows that unless petitioner did actually waive his right . . . his federally guaranteed constitutional rights have been denied.” Brookhart v. Janis, 384 U.S. 1, 4
(1966). Furhter, when a mistake of counsel leads to the denial of a “substantive or procedural right to which the law entitles [the defendant]” prejudice is established. Williams v. Taylor, 529 U.S.
362, 393 (2000). Here, as a result of counsel’s mistakes, an ex post facto law was unlawfully
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applied at Gable’s sentencing. United States v. Braggs, 196 F. App’x 442, 445 (8th Cir. 2006)
(unpub’d) (in absence of a knowing and intentional relinquishment of ex post facto rights by the defendant, the sentencing court committed plain error by sentencing a defendant under a more burdensome amendment to the sentencing guidelines). If “[a]ny amount of actual jail time has
Sixth Amendment significance,” Glover, 531 U.S. at 203, there can be no doubt that the difference in prison time at issue here—the possibility of parole versus the certainty of dying in prison—has
Sixth Amendment significance.
Strickland’s prejudice prong is satisfied where counsel fails to challenge imposition of an illegal sentence and, as a result, an illegal sentence is imposed. See Glover, 531 U.S. at 202-04
(incorrect sentence prejudicial under Strickland if it was caused by counsel’s failure to argue for grouping of sentences); Tilcock, 538 F.3d at 1146 (Strickland prejudice demonstrated where counsel’s failure to object resulted in unlawful sentence that defendant could not have otherwise received); United States v. Conley, 349 F.3d 837, 841-42 (5th Cir. 2003) (but for counsel’s failure, defendant would have received a lesser sentence and any amount of additional jail time has Sixth
Amendment significance); Burdge v. Belleque, 290 F. App’x 73, 79 (9th Cir. 2008) (unpub’d) (had counsel objected, “either the sentencing judge would have agreed to the objection, or the issue would have been preserved for appeal”); see also United States v. Silva, 106 F.3d 397 (5th Cir.
1997) (unpub’d) (“Where a criminal defendant’s attorney fails to challenge the application of an incorrect version of the Sentencing Guidelines, and that failure results in a sentence that violates the Ex Post Facto Clause, the criminal defendant is deprived of effective assistance of counsel.”).
In Tilcock, the defendant claimed his attorney was ineffective for failing to object to several prior convictions that served as predicates for his habitual offender sentence. 538 F.3d at 1145.
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He claimed counsel should have objected on the ground that the convictions did not qualify as predicate offenses, and, had counsel done so, he would have received a lawful sentence. Id. The
Ninth Circuit held:
On the prejudice prong, the facts alleged by Petitioner “show that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” . . . If Petitioner’s trial counsel had provided effective assistance by objecting to the proffered non-qualifying convictions and thereby limited the trial court’s consideration to two qualifying convictions, Petitioner would have been ineligible for sentencing as a habitual criminal offender. . . .
Id. at 1146.
Similarly, in an unpublished decision, the Ninth Circuit explained that Strickland’s prejudice test was satisfied where counsel failed to object to the applicability of a sentencing statute that resulted in the defendant receiving a longer sentence than was authorized. Burdge, 290 F.
App’x at 78-79. The statute at issue there was not interpreted in the defendant’s favor until after the defendant’s sentencing hearing. The Ninth Circuit held:
[T]here is more than a reasonable probability that, had trial counsel objected, [defendant] would have benefited from [the intermediate appellate court’s later] * * * decision * * * , or his own case would have been the one in which the [appellate court] considered the proper interpretation of [the statute at issue].
Id. at 79.
If counsel had performed effectively with regard to the application of the ex post facto statute by raising an objection at sentencing, one of two alternatives would have occurred. Either of the alternatives evidences a “reasonable probability” that the result would have been different.
First, either Gable would have received a lawful sentence in the first instance because he either would waived his rights and been sentenced under the new law, or he would have been lawfully sentenced under the old law. Under this circumstance, even if Gable received the death penalty
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under the old law, his sentence would be lawful in that it would not violate the ex post facto prohibition. Alternatively, if Gable objected to the application of the new law, refusing to waive his rights, but the trial court overruled the objection, Gable would have prevailed on appeal, and obtained a remand for re-sentencing to a term of ordinary life under Wille. Instead, as a direct result of counsel’s failures, Gable received an unlawful ex post facto sentence, and, thereafter, was denied appellate relief on the ground that the challenge to the unlawful sentence was unpreserved.
Accordingly, but for counsel’s failures, there is a reasonable probability that the result of the proceeding would have been different.
“Effective trial counsel preserves claims to be considered on appeal . . . . and in federal habeas proceedings.” Martinez, 132 S. Ct. at 1317-18. Where, but for counsel’s failure to preserve the issue, a Petitioner would have prevailed on appeal, Sixth Amendment prejudice is established.
See Glover, 531 U.S. at 204 (noting error occasioned by counsel’s mistake “that would have been correctable on appeal” is prejudicial); Burdge, 290 Fed. App’x at 78-79 (had counsel objected,
Burdge would have prevailed on appeal); Conley, 349 F.3d at 842 (but for counsel’s failure, defendant would have prevailed in obtaining a lesser sentence). But for counsel’s failure to object in the trial court, Gable would have prevailed on appeal here. Put another way, but for counsel’s failure to preserve the issue, Gable would not have faced the more onerous and outcome- determinative plain-error standard on direct appeal. See Burns v. Gammon, 260 F.3d 892, 897-98
(8th Cir. 2001) (noting that chain reaction starting with counsel’s failure and resulting in higher appellate review standard constitutes prejudice under Strickland).
In fact, we know Gable would have prevailed on appeal because the Oregon Supreme Court held in Wille that application of the sentencing amendment at issue in this case rendered the
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resulting true-life sentence unconstitutionally ex post facto. Wille, 317 Or. at 505. The only material difference between Wille and the case at bar is the performance of trial counsel. Wille’s counsel objected to the imposition of the new law. In contrast, defense counsel did not object on his behalf to application of the new law. In 1993, Wille received appellate relief, and was re- sentenced to a term of ordinary life. Counsel’s failure to preserve the issue in this case operated to prevent Gable from obtaining a re-sentencing to a sentence of ordinary life decades ago.78
c) The State Court’s Decision Constitutes An Unreasonable Application of Strickland And An Unreasonable Determination of the Facts In Light of the State Court Record.
The Oregon Supreme Court failed to apply the straightforward Strickland analysis required where defense counsel fails to object to protect his client from an unlawful sentence. The analysis by the Oregon courts started to go off the rails when the Oregon Court of Appeals deviated from the simple prejudice analysis: Gable received an illegal sentence as a result of counsel’s failures.
Instead of ending the prejudice inquiry there, the Oregon courts grafted an additional requirement onto the petitioner’s burden. Under the new test created by the Oregon courts, in addition to satisfying Strickland’s prejudice inquiry, the petitioner also must prove what he would have done two decades ago had counsel not botched the job. To require such proof by a petitioner, especially twenty years after the fact, denigrates both the right to the effective assistance of counsel and the fundamental ex post facto right that counsel had a duty to safeguard. As a practical matter, there
78 The imposition of an ex post facto sentence is plain error. Such error satisfies Strickland’s prejudice test as the plain error test requires more, i.e., a showing that the outcome of the proceeding was affected plus more. United States v. Marcus, 560 U.S. 258, 262 (2010). Plain error requires “clear or obvious” error that affected the appellant’s substantial rights (i.e., error that “affected the outcome of the district court proceedings”) and “seriously affect[s] the fairness, integrity or public reputation of judicial proceedings.” Id.
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will be no objective or record evidence available for a petitioner to satisfy this burden. It will be pure speculation—on the part of the petitioner or the court—to say what might have occurred if counsel had done his job. The only thing known for certain is that counsel did not do his job.
Creation of this new test launched the state court into a speculative inquiry inconsistent with the
Strickland prejudice analysis.
Counsel’s failure to object, not his failure to advise, was the Sixth Amendment violation claimed by Gable in this case. Counsel’s failure to advise Gable of his ex post facto rights—the focus of the state court’s inquiry—constituted an independent Sixth Amendment violation. As a result of counsel’s failure to advise him of his rights, Gable never knew of his ex post facto right.
Without knowledge, Gable could not make any waiver of that right. Without a valid waiver from his client, counsel was obligated to assert Gable’s ex post facto rights on his behalf and to protect these rights.
The Oregon courts were unduly focused on the fact that some defendants might wish to make a strategic waiver with respect to the Oregon law at issue here in order to provide the jury with additional non-death sentencing options. In attempting to address this possibility, the Oregon courts disregarded the critical fact that Gable never made a valid waiver of his rights. If counsel believed for some strategic reason that his client should agree to application of a new, harsher law, counsel should have discussed the issue with his client and obtained a waiver. Instead of analyzing the waiver question under Strickland’s first prong, and viewing it as a failure by counsel to take the necessary precursor steps to making a strategic decision, the Oregon courts improperly placed an additional evidentiary burden on the petitioner with respect to Strickland’s prejudice prong.
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By permitting trial courts to make an adverse credibility judgment about a petitioner’s assertion as to what he would have done years earlier, the Oregon courts created a test where the state trial court will necessarily be making a criminal defendant’s waiver decision for him after the fact. Having trial courts substitute their judgment for that of a criminal defendant with regard to waiver of a fundamental constitutional right contravenes the Supreme Court’s longstanding requirement that waiver of such rights be knowing, intelligent and voluntary, and renders those requirements meaningless. See Boykin v. Alabama, 395 U.S. 238, 242-43, 243 n.5 (1969) (an individual only waives a right when there is an “intentional relinquishment or abandonment of a known right or privilege”) (quoting Johnson v. Zerbst, 304 U.S. 458, 464 (1938)).
In this case, the Oregon courts made much of the fact that Gable’s assertion that he would not waive was irrational. Such second guessing is irrelevant to a proper waiver analysis. A defendant’s personal waiver choice need not be rational so long as it is knowing, intelligent, and voluntary. In any event, a defendant could rationally choose not to waive his ex post facto rights in the situation at issue here. Indeed, the defendant in Wille, with the benefit of his counsel’s advice, chose to not to waive his rights. No post hoc assessment of the rationality of Wille’s choice stood in the way of relief in his case.
Rather than performing the straightforward Strickland analysis called for by precedent, the
Oregon courts engaged in a subjective and speculative inquiry that culminated in a state trial judge substituting his judgment for Gable’s with regard to whether Gable would have waived a fundamental constitutional protection. Instead of finding prejudice resulted from the imposition of an unlawful ex post facto sentence as the Strickland analysis requires, the state court unnecessarily and unreasonably expanded the inquiry. Under a correct application of Strickland,
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the prejudice inquiry is satisfied by the imposition of an unlawful sentence. Where counsel’s mistake deprives the defendant of a substantive right to which the law entitles him, the Strickland analysis is straightforward, and the Sixth Amendment does not permit the type of speculation and post hoc credibility judgments in which the Oregon courts engaged. Habeas relief in the form of a remand for imposition of a term of life with the possibility of parole is appropriate.
V. 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, through Marion County, grants him a new trial within sixty (60) days. 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.
Respectfully submitted on October 14, 2014.
/s/ Nell Brown Nell Brown Assistant Federal Public Defender
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