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COURTESY SALEM STATESMAN-JOURNAL - Frank Gable has always maintained he is innocent of killing Michael Franke. Gable is shown here in an undated photo.The Oregon Innocence Project is asking the Oregon U.S. District Court to consider seriously issues raised in the federal appeal of one of Oregon's most controversial murder convictions.

The friend of the court brief was filed in support of the appeal of Frank Gable, a Salem petty criminal convicted of killing Oregon Corrections Director Michael Franke on Jan. 17, 1989. Gable is serving a life sentence without the possibility of parole.

In the brief filed Wednesday, the OIP takes no position on whether Gable killed Franke, as a Marion County jury found. Instead, the organization notes Gable's federal public defenders have obtained sworn affidavits from prosecution witnesses recanting their testimony, and have documented questionable tactics by the original investigators to obtain their trial testimony.

"At least seven prosecution witnesses in this case initially denied any knowledge about the murder of Michael Francke and then implicated Petitioner Gable after prolonged police interrogation that involved the use of false evidence, threats, excessive polygraphing, and incentives. All seven of those witnesses later recanted their incriminating statements. Many of the witnesses do not know each other. OIP urges this Court to consider the recantations, whether by affidavit or at an evidentiary hearing, in light of the circumstances giving rise to the recantation as well as the circumstances giving rise to the testimony now asserted to be false," reads the brief submitted by the OIP.

You can read the brief here.

The OIP is an initiative of the Oregon Justice Resource Center whose mission is to exonerate the innocent, educate and train law students, and promote legal reforms aimed at preventing wrongful convictions. It is a member of the Innocence Network, which provides pro bono legal and investigative services to convicted individuals seeking to prove their innocence.

A friend of the court brief — formally know as amici curiae — is filed by someone who is not a party to a case, but offers information that bears on the case.

The brief states in part: "Specifically, OIP requests the Court consider the specific interrogation techniques used on independent witnesses who initially denied any knowledge of the murder and have now confirmed that their trial or grand jury testimony implicating Mr. Gable was false and came only as a result of police interrogation tactics. The court should determine whether the interrogation tactics that led to the initial testimony is evidence that undermines the reliability of that initial testimony and supports the reliability of the later recantations of these independent, unrelated witnesses."

Final reply filed

The OIP brief was filed along with the final reply submitted by Gable's federal public defenders in support of their appeal of his conviction. It asks the court to grant Gable either a new trial or immediate possibility of parole.

The Oregon Department of Justice is arguing the conviction should stand and Gable should continue serving his sentence.

Among other things, the final reply from Gable's attorneys continues to argue that Gable is an innocent man wrongly convicted of killing Franke and should not be imprisoned.

"This is a truly extraordinary case of innocence," reads the reply, which says the court should conduct a "holistic" review of the evidence of Gable's innocence.

"In the final holistic calculus, the recantations, together with the scientific and factual evidence that corroborates them, the evidence of third-party guilt, and the alibi evidence, there can be no confidence in the outcome of Gable’s trial," reads the final reply.

You can read the reply here.

And, in the final reply, Gable's attorneys provide more information about the detailed confession of the murder by a man who the state did not prosecute — including his explanation of an injury to Franke that was not made public before he confessed.

According to the reply, long before Gable surfaced as a suspect, a prolific car thief named PORTLAND TRIBUNE FILE PHOTO - Prolific car thief Johnny Crouse confessed to killing Michael Franke during a botched break-in. He was never charged and died a few years ago.Johnny Crouse confessed he killed Franke outside the corrections headquarters in Salem. Crouse said Franke caught him breaking into his car, and that he stabbed him in the chest trying to escape.

Crouse also said he hit Franke in the left eye before stabbing him, and that is consistent with bruising documented on Franke's face during the autopsy. Information about the bruising had not been released before Crouse confessed.

Crouse's confession was kept from the jury that convicted Gable. That omission is one of several reasons cited in the original appeal asking the U.S. District Court to grant Gable a new trial or allow him to be immediately paroled.

Crouse, who died several years ago, made his confession to former Oregon Department of Justice investigator Randy Martinak. Information about the confession was included in a court filing, after which DOJ investigators contacted Martinak to learn more about the confession. Although they did not include any of the information he provided them in their legal responses, the contact prompted Martinak to notify Gable's attorneys again and provide them with even more details about the confession, which are included in the final reply.

According to the final reply, after pressing Crouse about whether he had ever killed anyone with a knife, Martinak says, "Crouse began crying, so I just sat there quiet again. Finally he looked up, tears running down his cheeks, and in a sort of sob, he said, 'I did it, I killed him.' I said, 'You killed Michael Franke?' in a questioning tone. He told me yes, but that at the time he did not know who he had killed, he didn’t know that until it came out in the paper the next day."

According to Martinak, Crouse then went on to provide a detailed account of the altercation that was consistent with the crime scene and the account of the only eyewitness, a state employee who saw what was happening but was too far away to understand how serious it was.

Although prosecutors did not charge Crouse, they accused Gable of doing exactly what Crouse described when they arrested Gable after many months of further investigation. No evidence has ever surfaced that Crouse got the story of the killing from Gable before he confessed to Martinak. Gable has always denied killing Franke.

The reply cites other reasons for believing Gable was wrongly convicted, including a lack of physical evidence, the recanted prosecution testimony, Gable's alibi that he was home when the killing occurred, and inadequate representation by his original defense attorney.

"For the foregoing reasons, Petitioner respectfully requests that this Court grant the writ of habeas corpus with respect to all counts of conviction and order the matter dismissed unless the State of Oregon grants him a new trial. In the alternative, if the Court grants relief as to the unconstitutional sentence only, Petitioner respectfully requests that the Court order that the judgment be amended to reflect that the sentence is for a term of life with the possibility of immediate parole," Gable's attorneys write in the final reply.

A federal judge will now decide how to proceed.

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