The following three columns by Phil Stanford of the Portland Tribune, comprise to form an enlightening synopsis of the murder of Michael Francke, and the wrongful conviction of Frank Gable

A killing that won’t go away

By Phil Stanford

Eighteen years later, the brutal murder of state Corrections Director Michael Francke, stabbed to death outside his Salem office on the night of Jan. 17, 1989, remains deeply unsettling. From the beginning, the local district attorney and the state police focused on the theory that it was a car burglary gone bad: that Francke was killed when he surprised a burglar inside his car.

Two and a half years later, in fact, a small-time Salem drug dealer named Frank Gable was convicted — I say framed — for just such a crime. Gable, currently in a Florida prison serving a life sentence without parole, maintains his innocence. He is appealing his conviction on the grounds that he was denied a fair trial, because, he says, his lawyer was a drunk. He also contends that he was denied a chance to present an alibi defense. His plea was filed June 18, 2004 with the Oregon Court of Appeals.

Certainly, there are many Oregonians — among them Francke’s family — who agree that Gable deserves a new trial. As former legislator and state Treasurer Jim Hill told the Tribune, the murder of Michael Francke may well be “the biggest unresolved thing in the state.”

There were questions from the beginning. For example, if it really was a bungled car burglary, why were there no signs of entry on Francke’s car, a fully alarmed state vehicle, parked in front of the corrections department administrative headquarters? And if, indeed, the stabbing occurred at the car, why was there no evidence whatsoever that an intruder had even been inside the car?

Although Francke suffered two stab wounds — finally and fatally to the heart — why was there no sign of a struggle? In fact, the first blood spatters were 95 feet away, on a sidewalk leading back to the Dome Building, as the corrections headquarters is called. And if it was, in fact, a robbery, why were none of Francke’s possessions missing? When his body was discovered that night — at 12:35 a.m., some five hours after police say the murder took place — he was still wearing his gold watch. His billfold was untouched. And come to think of it, why did it take more than five hours — despite what corrections officials later described as a “meticulous search” — to find his body, lying in plain view on a porch on the north front side of the Dome Building? Not to mention the sheer improbability that a small-time car burglar, with a city full of cars at his disposal, would pick on one belonging to a law enforcement official, parked in a slot conspicuously labeled “Director.”

But if it wasn’t a bungled car burglary, then what was it? Kevin Francke, younger brother of the murdered man, says that shortly before his brother was killed, he told him that he had uncovered an “organized criminal element” in the prison and that he would have to “clean house.” Kevin says his brother, who had taken the job only the previous year, told him he was in a struggle for control with his legal counsel, whom he couldn’t fire because the man — Scott McAlister — worked for the attorney general’s office. “It’s him or me,” Francke told his brother.

Oddly enough, when this first became public in April 1989, Marion County District Attorney Dale Penn tried to play it down, saying Kevin hadn’t brought any of this up earlier. Kevin, for his part, says he first told Penn in a phone conversation from Santa Fe, N.M., where the family had just buried his brother. Either way, however, the issue of when Kevin told Penn is little more than a red herring. The real issue is: Was there serious corruption in the Oregon prison system at the time of Francke’s murder? And the answer, made somewhat clearer by the passage of time, is certainly yes.

In 1986, at the urging of state Sen. L.B. Day, the state police conducted a brief — and it seems clear at this point, entirely inadequate — investigation into corruption in the corrections department. A few higher-ranking officials were persuaded to take jobs elsewhere, and a few wrists were slapped. Other than that, though, probably the best way to describe it is a cover-up. At least that’s how Day, who would die of a heart attack shortly thereafter, saw it. “I truly believe,” he wrote in an angry letter to then-Gov. Victor Atiyeh, “there is widespread corruption by a great many people in the Corrections Division. It appears at this point an attempt is being made to cut off further investigation.” Atiyeh would be out of office in a few months anyway, replaced by the newly elected Neil Goldschmidt in January 1987.

Hill, then a ranking member of the Senate Judiciary Committee, says he met with a high-ranking member of Goldschmidt’s transition team to brief him on illegal activities, including drug-trafficking and gambling in the prison system, taking along one of the prison guards, Bob Merchant, who had earlier given information about corruption to Day. In June 1988, a year after Francke was appointed, then-state Treasurer Tony Meeker made an appointment for Francke with David Larson, another of the guards who had given information to Day. After the investigation into Francke’s death, Larson said he’d told Francke about wholesale theft and drug-running in the prison system; Francke had said he’d talk to the governor.

But perhaps the most compelling sign of potential corruption comes from a meeting that occurred in the summer of 1987 between Francke and a retired Portland police officer named Larry Barnum.

Barnum had been hired the previous year by the American Federation of State, County and Municipal Employees union to look into accusations against some state penitentiary guards represented by the union. At the time, Barnum told me when I interviewed him in 1989, four low-ranking guards were facing charges. Once he started poking around, however, he discovered that the guards represented by the union were the least of the problems at corrections — and he told Francke so when they met. As Barnum told Francke, he’d collected enough information to have a number of top corrections managers indicted.

“Basically,” Barnum explained, “I told him if he went after the little guys, more would fall.”

“Can you back this up?” Francke said. “You bet I can,” Barnum told him. Within hours, Barnum told me in this interview — conducted 18 years ago — charges against the other three were dropped, in exchange for a plea from one of the guards. At the time, I wrote a column mentioning Barnum and citing some, but not all, of the information in my notes of the conversation. Last week I called Barnum again to see what more he could tell me. He said he’d have to talk to his lawyer first.

“Why?” I said. After all, it had been 18 years since the murder. “There were some repercussions after the last article was in the paper,” he said. “Some threats.”

I tried again. A man was murdered, I said, quite possibly as a result of the corruption in the state prison system. “That may well be,” he said. “But I don’t want to talk to you.”

Jim Hill said it: This is a murder that won’t go away.

After 15 years, where is the man in the pinstriped suit?

A security guard found Michael Francke at 12:35 a.m on Jan. 18, 1989, lying on the north porch of the Oregon Department of Corrections office building in Salem. Cause of death was a knife wound to the heart. Initial reports said police were looking for a man wearing a light-colored trench coat.

A custodian, leaving work about 7 o’clock earlier that night, had heard a sound — something like the “oomph” of a man being hit in the stomach — and turned to see two men facing each other near the edge of the parking lot. One turned and walked at a leisurely pace toward the Dome Building. The other one, wearing the light trench coat, turned and ran in the opposite direction, west across the grounds of the Dome Building, as the corrections department office building is called. Because neither of the men appeared to be hurt, the custodian went home and didn’t think about it again until he saw the police lines the next day. The custodian couldn’t offer much of a description. It was, after all, already dark, and he’d been standing yards away.

Two weeks later, state police announced they were looking for a second man — described as olive-skinned, well-groomed and wearing a pinstriped suit — who’d been spotted inside the Dome Building at about 6:30 the night of the murder. A corrections employee, working late that night, had walked around a corner in the nearly deserted building and come face to face with him. She got a good look at him. She’d never seen him before.

Even at the time, the significance of the sighting was unmistakable. At 6:30 p.m. the Dome Building already had been locked for an hour and a half. If he’d been there on legitimate business, he would have come forward when he heard about the murder. And if he didn’t come forward — which he never did — there’s only one good explanation for why he was in the Dome Building an hour after closing time. It’s no small detail. If you don’t know who the man in the pinstriped suit is, you can’t claim to know how Michael Francke was killed.

Eighteen years later, no one — including Marion County District Attorney Dale Penn, who succeeded in pinning the murder on a small-time crook named Frank Gable — has ever been able to identify the olive-skinned man in the pinstriped suit. I’m not the only citizen of this state who believes that Gable is serving life without parole for a crime he simply didn’t commit.

Despite public charges that Francke’s death might be connected to massive corruption within Oregon’s prison system, the state police focused on members of Salem’s methamphetamine underworld. Within a year, they had zeroed in on Gable, a low-level Salem druggie. Since there was no physical evidence linking Gable or anyone else to the murder, the state police case against Gable, by necessity, consisted of statements by jailbird types, almost all of them facing serious legal problems of their own.

Investigators also came up with two eyewitnesses: Jodie Swearingen, an 18-year-old street kid who said she’d been standing lookout for Gable that night while he broke into Francke’s car, and a local meth dealer and all-around tough guy by the name of Shorty Harden. For his part, Harden claimed to have happened by the murder scene almost by accident. Shortly before the time of the killing, he said, he received a phone call from Jodie asking him to come pick her up at the Dome Building.

Never mind that in those pre-cell-phone days, no one was ever able to find a pay phone closer than a 24-minute round-trip walk from the building, making the whole scenario slightly ridiculous. Shorty said he arrived just in time to see Gable lunge from a car in the parking lot and stab Francke. Then Jodie piled in Shorty’s car and they took off, leaving Gable at the scene.

This was, of course, the same Shorty Harden who just months before making this statement had been chased down by the state police with the help of K-9 teams and a helicopter hovering overhead. In an effort to elude his pursuers, Shorty had tried to scale a backyard fence, hurting his hand so badly that he had to undergo surgery. As he was coming out from under the anesthetic, a deputy heard him mumble that he’d be getting out of this “as soon as I can hang this on Gable.”

As for the state’s other eyewitness, Jodie Swearingen: In September 1990, months before the trial was set to begin, she changed her story, claiming that the police had put her up to it. As she explained it, they kept giving her lie detector tests till she gave them the answers they wanted. At the time, she was being held at Hillcrest Youth Correctional Facility, the prison for young women. In fact, the use of polygraphs to shape testimony seems to be a central theme throughout this investigation. The record shows that Jodie was given 17 of them. Jodie also said the police had put her and Shorty together before the grand jury so that they could get their stories straight. This is confirmed by police investigator’s notes.

According to Jodie’s new story, Gable wasn’t even present at the Dome Building. The actual killer, she said, was Tim Natividad, and Shorty Harden also had been involved. However, as the record also shows, state police, by now wedded to their bungled-car-burglary theory and sure that Gable was their man, were not at all interested in exploring this Natividad angle. It was not the first time his name had come up in the course of their investigation.

Records show that in July 1989, Konrad Garcia, an inmate at the Oregon State Penitentiary, told his counselor that Natividad had approached him with an offer to kill Francke in exchange for a free pass out of prison and money. It was Garcia’s opinion that Natividad had killed Francke and that the murder had been arranged by Scott McAlister, who had been the deputy attorney general assigned to the prison system. McAlister had resigned from his job just days before Francke was killed, and had taken a similar job with the Utah prison system. Investigators spoke to Garcia, but concluded that he was making it all up.

Garcia’s wife, Melody, and Natividad’s longtime, but by that point estranged, girlfriend, Elizabeth Godlove, also told investigators they had seen Natividad in the company of McAlister. Two weeks after the Francke killing, Godlove shot and killed Natividad in a case that investigators ruled as self-defense.

The state police resisted interviewing McAlister, even after he was caught with child pornography films he’d taken from evidence lockers in Oregon. Under pressure from the Francke family and the media, the state police finally asked Utah authorities to give McAlister a short, three-question polygraph test. McAlister, who denied all knowledge of the Francke murder, passed. State police investigators apparently saw no reason to question him further.

Polygraphs, it seems, can be used not just to groom testimony, but as a substitute for actual investigation.

Thirteen years later, give the guy a little justice

As the Oregon Court of Appeals considers Frank Gable’s latest attempt to get a new trial for the murder of Oregon Corrections Department Director Michael Francke, nagging qustions remain.

Thirteen years after Gable’s conviction for the January 1989 stabbing death, the case may be hotter than ever. Lacking so much as a shred of physical evidence tying Gable to the murder, the state’s case rested on the testimony of a single eyewitness, Shorty Harden, plus several other jailbird types who testified that Gable either told them he was going to kill Francke or, after the murder, said that he did it.

One of the witnesses, Mark Gesner, told me before the trial that the state police were trying to get him to say things about Gable that weren’t true. But as he also told me from jail, “What choice do I have?”

Like most of the witnesses, Gesner had criminal charges hanging over his head at the time. In Gesner’s case, it was federal gun charges. At the trial, he testified against Gable anyway, saying that the night of the murder Gable had given him a bag of clothing to dispose of. Later, he said, Gable admitted to him that he had killed Francke. Another drug dealer, John Kevin Walker, testified that shortly after the murder, Gable told him he “did the Dude Man.” Then, Walker said, Gable picked up a .357 pistol that Walker had sold him a few days earlier, saying, “Don’t tell on me Kevin, or I’ll have to kill you and kill your family.”

Walker says now that he simply lied — that he made up the whole story, including the bit about selling Gable a gun, in order to get the police off his back. Whether any of these recent statements — plus a number of glaring errors and omissions by Gable’s lawyers in the course of the trial — will affect the fate of Frank Gable, who is serving life without parole, lies in the hands of the Oregon Court of Appeals.

There were problems with Gable’s defense almost from the beginning. Months before the trial was set to begin, the private investigators working on Gable’s defense team took the unusual step of writing a letter to the presiding judge, complaining that they needed more time for trial because the lawyers didn’t understand the case.

There also was an unsettling episode at a defense team retreat at the coast, in which, according to several investigators, lead counsel Bob Abel drank too much and attempted to pick a fight with one of the investigators. Nothing came of it at the time, but several investigators later would testify at Gable’s post-conviction trial in 2001, at which Gable argued that he didn’t get a fair trial in part because Abel had a drinking problem that affected his ability to conduct Gable’s defense. Gable himself says that he could smell booze on his lawyer’s breath at the defense table. “You could smell it coming out of his, like, pores, you know,” Gable would testify. “I’ve done it myself. I know what it is.”

Abel, for his part, denies that his drinking created any problems during the trial. He has, however, acknowledged that he entered an alcohol treatment program after the trial was over. Whether, in fact, Abel’s drinking interfered with his ability to conduct Gable’s defense is one of the issues put before the Court of Appeals in a brief filed by Portland attorney David Celuch on June 18 seeking to overturn the 2001 decision.

Alcohol-related or not, there were a number of major holes in the case presented to the jury on Gable’s behalf. Shorty Harden’s story, for example: Harden, a local drug dealer, was, of course, the state’s lone eyewitness. He said he happened to be at the Corrections headquarters because he got a phone call from a young woman, Jodie Swearingen, to pick her up there. However, since there were no public telephones within a 24-minute round-trip walk of the building, his scenario was a virtual impossibility.

Yet Gable’s lawyers never brought this up during the trial.

There also was no mention of a man in a pinstriped suit who was seen in the building at 6:30 on the night of the murder, 1 1/2 hours after the building was locked. Whoever he was — and we still don’t know — his unexplained presence undermines the state’s theory that Francke’s murder was the result of a car burglary by a single person gone bad.

In addition, the intriguing possibility — supported by statements from several credible witnesses — that the murder actually was committed by a Salem gangster by the name of Tim Natividad was never presented to the jury, either. During the post-conviction proceeding in 2001, Abel said he didn’t do so because the state police didn’t consider Natividad a suspect in the case, “as far as I know.” It is unusual, to say the least, to find a defense attorney who accepts the prosecution’s view of a case so completely.

Most devastating, however, from Gable’s point of view, was Abel’s failure — Gable says his refusal — to put him on the stand so he could tell the jury what he was doing on the night of the murder. As a consequence, prosecutors were able to claim that Gable was unable to account for himself at the time.

In fact, when the state police first asked Gable what he was doing on the night of Jan. 17, the night of the murder, Gable said he couldn’t recall. It was, after all, five months afterward, and few people, especially a druggie like Gable, could reasonably be expected to remember such a thing — unless, of course, there had been some significant event to mark it for him.

But as it happened, there had been such an event. On the morning of the 18th, after a particularly raucous party at Gable’s apartment building, the landlady had presented him with an eviction notice. Once Gable learned the date of the eviction notice from defense investigators, it all fell into place for him. Someone had thrown a plate from a window, and the landlady had said that was “the last straw.”

That afternoon he’d called Walker, the drug dealer, to arrange for Walker to deliver some drugs to Salem that night. Then he’d gone to the hospital to visit a friend. After that he’d gone to a house to set up the deal. Then he’d returned to his apartment, where the deal went down. Defense investigators were able to confirm Gable’s story at certain crucial points. In 1993, Walker, one of the witnesses who testified against Gable, told a defense investigator working on Gable’s initial appeal that he was present in Gable’s apartment between 6:30 and 7:30 on the night of the murder — or at about the same time Francke was stabbed — doing a drug deal.

As alibis go, it’s not very pretty. But as far as Gable was concerned, it would have been a good sight better than having the jury think he couldn’t account for himself on the night of the murder. Everyone involved — except Abel — agrees that Gable wanted to take the stand and present his alibi. Abel says he told Gable it would not be in his best interests — and that Gable agreed. In a sworn deposition taken for Gable’s 2001 post-conviction relief trial, Abel claimed he had documented with the court Gable’s agreement not to testify. When this was found to be incorrect, Abel testified that Gable agreed not to testify as they were waiting in a holding cell in the basement of the courthouse the day he concluded his case. And then, says Abel, “We came back up into the courtroom, and at that time I said, ‘Defense rests.’ ”

Gable says this just isn’t true. Abel’s chief investigator, Tom McCallum, is even more adamant. “That’s B.S.!” he says.

Meanwhile, Gable remains in prison, serving a life sentence without possibility of parole. How, in the name of justice, can this man be denied a new trial?