Gable v. Williams

• Decision Date: 29 September 2022
• Docket Number: s. 19-35427,19-35436
• Citation: 49 F.4th 1315
• Parties: Frank E. GABLE, Petitioner-Appellee/Cross-Appellant, v. Max WILLIAMS, Respondent-Appellant Cross-Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

49 F.4th 1315

Frank E. GABLE, Petitioner-Appellee/Cross-Appellant,
v.
Max WILLIAMS, Respondent-Appellant Cross-Appellee.

Nos. 19-35427
19-35436

United States Court of Appeals, Ninth Circuit.

Argued and Submitted February 7, 2022 Portland, Oregon
Filed September 29, 2022

Benjamin Gutman (argued), Solicitor General; Frederick M. Boss, Deputy Attorney General; Oregon Department of Justice, Salem, Oregon; for Respondent-Appellant/Cross-Appellee.

Nell Brown (argued) and Mark Ahlemeyer, Assistant Federal Public Defenders; Office of the Federal Public Defender, Portland, Oregon; for Petitioner-Appellee/Cross-Appellant.

Janis C. Puracal and Aliza B. Kaplan, Forensic Justice Project, Portland, Oregon, for Amicus Curiae Forensic Justice Project.

Before: Richard A. Paez and Jacqueline H. Nguyen, Circuit Judges, and John R. Tunheim,^* District Judge.

NGUYEN, Circuit Judge:

49 F.4th 1318

More than thirty years ago, Oregon Department of Corrections Director Michael Francke was murdered in front of his office building. Investigators followed a tangled web of leads for over a year before a tip led them to Frank Gable, who was charged and convicted of the murder, and sentenced to life imprisonment without the possibility of parole. Because no physical evidence was found, the State's case rested exclusively on witness testimony. Gable has steadfastly maintained his innocence.

The facts on appeal are extraordinary.¹ Since trial, nearly all the witnesses who directly implicated Gable have recanted. Many explain they intended to frame Gable after hearing he was a police informant. They attribute their false testimony to significant investigative misconduct, which the State—remarkably—does not dispute. As Gable's expert explained, the investigators used widely discredited polygraph and interrogation techniques as a "psychological club" to elicit the statements against Gable. The prosecution then built their entire case on that tainted foundation. The State's error was compounded by the trial court's refusal to allow evidence that another man, John Crouse, had confessed multiple times to the murder. Crouse's confession was particularly compelling because he gave details of the crime that were not publicly known.

After exhausting his state court appeals, Gable filed a federal habeas petition asserting various claims, including constitutional violations based on the trial court's exclusion of Crouse's confession. Gable's constitutional claims are procedurally defaulted because he failed to raise them in state court as required. Thus, we cannot consider the merits of these claims unless the Schlup v. Delo "actual innocence" exception to procedural default applies. 513 U.S. 298, 115 S.Ct. 851, 130 L.Ed.2d 808 (1995). Under Schlup , Gable need not prove that he is "actually innocent." Instead, we examine Gable's new evidence against the entire record and determine whether it is more likely than not that no reasonable juror would find him guilty beyond a reasonable doubt. If the answer is yes, then Schlup opens a procedural gateway through which Gable passes to have his constitutional claims heard on the merits.

Below, the district court excused Gable's procedural default under Schlup and, on the merits, found that the state trial court violated Gable's due process rights by excluding evidence of third-party guilt under Chambers v. Mississippi , 410 U.S. 284, 93 S.Ct. 1038, 35 L.Ed.2d 297 (1973). The district court granted Gable's petition and vacated his conviction. We agree with the district court's evaluation of the record,

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which is dramatically different than the one presented to the jury. What we now know, and the jury did not, is that the testimony of the State's main witnesses was irreversibly tainted by coercive investigative techniques, and that another man gave compelling confessions on multiple occasions. On the merits, we hold that Gable's due process rights were violated by the exclusion of Crouse's confession. We affirm.

I. Factual Background

A. The Murder of Michael Francke

On January 17, 1989, Oregon Department of Corrections Director Michael Francke was stabbed to death on the Oregon State Hospital ("OSH") grounds in Salem, Oregon. Francke was last seen alive around 6:45 p.m. near his office inside the Dome Building. Between 7:05 and 7:20 p.m., several people saw Francke's car door standing ajar in the front parking circle. A security guard found his body at 12:40 a.m. outside the north portico of the building, where Francke died from a stab wound to the heart.

The murder weapon was never found, and the police had no other physical evidence tied to any suspect. In the fall of 1989, investigators received a tip that a local man named Frank Gable was involved, and Gable was charged with Francke's murder in April 1990.

B. The State's Trial Evidence

Gable's four-month jury trial began in March 1991. The State of Oregon's theory was that around 7:00 p.m. on the night of the murder, Francke was leaving work when he caught Gable trying to steal "snitch papers" out of his car. Gable stabbed Francke three times and fled on foot before driving away. Meanwhile, Francke stumbled back to the north portico where he bled out. The State suggested Francke died fifteen or twenty minutes after the stabbing—by 7:15 or 7:20 p.m.—when co-workers saw his car door open but could not find him.

The prosecution relied solely on witness testimony. Wayne Hunsaker, a custodian at OSH, told the police that, around 7:00 p.m., he saw two men in what appeared to be an altercation, but he could not identify either one. Hunsaker heard a grunt, "like somebody had their breath knocked out," and saw two men facing each other in the parking circle in front of the Dome Building. One man matching Francke's description headed briskly towards the building, while the other man—six feet tall, 175 pounds, aged 20–40, short brown or black hair, wearing a tan trench coat—ran west down the driveway, across 23^rd Street, and behind a generator at the hospital. Hunsaker saw no other people or cars. In January 1989, a local newspaper published a map of Hunsaker's account and the crime scene:

49 F.4th 1320

All the witnesses who incriminated Gable knew him through Salem's underground drug scene—Gable was a methamphetamine user and dealer with a criminal record, as were most of the State's witnesses. The only direct eyewitness against Gable was Cappie "Shorty" Harden, who testified that he saw Gable stab Francke when Harden was at the Dome Building picking up his girlfriend, Jodie Swearingen. Five other witnesses claimed Gable incriminated himself. Earl Childers testified he saw Gable driving near the murder scene, and that Gable admitted to stabbing Francke while they were doing methamphetamine. Mark Gesner testified that Gable asked him to dispose of a bag of clothes the night of the murder. John Kevin Walker claimed Gable confessed the next day during a drug sale, and Daniel Walsh said Gable confessed while high a few months later. Linda Perkins told the jury that the morning after Francke's death, Gable admitted that he "fucked up big time" and they would "read[ ] about it in the papers." Gable's then-wife, Janyne Vierra Gable ("Janyne"), testified that she was home alone with her daughter the night of Francke's murder while Gable stayed out with the car.

Law enforcement officers testified as to what Gable said during numerous police interviews. Gable consistently denied killing Francke or knowing who did. But Gable admitted he may have speculated about the high-profile case to his friends, and that he frequently wore a tan trench coat, which matched the coat worn by the man Hunsaker saw running.

In one interview, Gable said: "[m]y mind keeps saying you did it, you did it, you did it, and all of the time I know I didn't." In another confusing exchange, Gable said there were "only two people who know who killed Francke, Francke and God." The detective noted that Francke could not know because he was dead, and Gable looked puzzled and responded: "Well, there are only two people who know Francke—yeah, me and God." He then added: "I'm going to go to the end of the trial saying I didn't do this.... I'll go to heaven saying it and all those mother fuckers will go to hell for lying."

Gable had no alibi. Gable's police interviews did not begin in earnest until September 1989—eight months after Francke's death—by which time he claimed that his memory of dates was fuzzy from heavy drug use. Gable was

49 F.4th 1321

never certain of his whereabouts that night, but he believed he was home with his wife hosting a party. When pressed for another alibi, Gable said he could have been out with a friend doing or selling drugs.

At trial, Gable tried to present evidence that John Crouse confessed to murdering Francke, but the court excluded it under state evidence rules.² Gable presented testimony from Jodie Swearingen, Harden's teenaged girlfriend. Swearingen refuted Harden's testimony that they saw Gable stab Francke. When the State impeached Swearingen with her grand jury testimony, which had corroborated Harden's story, she claimed the police pressured her to lie to the grand jury. Gable also called his landlady at the time, who testified that the Gables hosted a loud party on the night of Francke's death, and she had served them an eviction notice the day after because of it. Inexplicably, Gable's counsel did not use this evidence to challenge Janyne's claim that she was home alone all night with her daughter.

Finally, Gable tried to undermine the State's case by suggesting the crime scene was compromised and evidence was lost. Gable's counsel questioned officers about coercion, attacked the State's timeline, and tried to impeach the State's witnesses as criminals, drug dealers, and addicts.

On June 27, 1991, the jury found Gable guilty on six counts of aggravated murder and one count of murder. The court sentenced Gable to life imprisonment without the possibility of parole.

C. Post-Conviction Proceedings

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