Oregonian, The (Portland, OR)

June 26, 1991

ATTORNEYS SKETCH DIFFERENT VERSIONS OF FRANCKE DEATH

Author: PHIL MANZANO and JOHN SNELL - of the Oregonian Staff

Summary: The lawyers give their closing arguments in the Gable trial.

Defense theories that Michael Francke died at the hands of several killers or was the victim of a conspiracy are just smoke screens designed to hide the guilt of the real killer, the lead prosecutor in the Frank E. Gable murder trial argued Tuesday.

``They're blowing smoke to hide the real issue,'' Sarah A. Moore, Marion County deputy district attorney, said in her closing statement Tuesday in the 2-month-old murder trial of Gable.

``Frank Gable told police that only `me and God' know who really killed Michael Franke.

That's not really true.

``All of us know who killed Michael Francke. Frank Gable killed Michael Franke, and the evidence clearly indicates that,'' Moore said.

But Gable's lawyer, Robert Abel, countered in his closing argument that the witnesses are all drug-using liars.

``I'm also going to be talking about evidence,'' Abel said about

Moore's closing argument. ``But what I'm going to be talking about is a lack of evidence. . . . Our common theme is, we'll never know.''

Gable, 31, is charged in a seven-count indictment in Francke's Jan. 17, 1989, stabbing death and could face the death penalty if convicted of aggravated murder.

Tuesday's closing arguments were attorneys' final words to the jury in the most expensive and one of the most closely watched murder investigations in Oregon history.

Moore's 2 1/2 -hour closing statement and 1 1/2 -hour rebuttal were well-organized outlines of the case and the evidence presented by the state. Abel's 1 1/2 -hour closing took more of a scattergun approach in touching upon the various points he wanted to raise.

Marion County Circuit Judge Greg West will give instructions to the nine-woman, three-man jury Wednesday morning, and deliberations will begin after that. As is usually the case in highly publicized murder trials, West is expected to keep the jury sequestered once deliberations begin.

Prosecutors allege that Gable killed the corrections director while trying to steal ``snitch papers'' from Francke's car.

The attack, they argued, took place outside Francke's car. Francke then walked to the north porch of the Corrections Department headquarters and died there while trying to re-enter the building to summon help.

But Abel stressed repeatedly that the state has no physical evidence linking Gable to the killing.

``They did everything they could do,'' Abel said of police, adding that he was not attacking their competence or integrity. But the police came up with nothing, he said.

Moore counterpunched Abel's claim during her rebuttal, noting that one witness -- Mark Gesner -- testified that Gable gave him a sack, which she said contained the murder weapon and clothes Gable wore on the night of the killing, and asked him to dispose of it.

She also noted that Gable told police at one point that they had no evidence in the case and never would find any.

``How does he know there will never be any physical evidence?'' Moore asked. ``Because he took the clothes and the knife and got rid of them in a place where no one would ever find them.''

Gable sat silent and largely motionless through Moore's closing argument. At the conclusion, just before lunch break, Gable turned toward defense investigator Tom McCallum and gave a thumbs-down sign.

At the end of the day, when Moore had finished her rebuttal, she was greeted by a number of Oregon State Police detectives offering their congratulations.

Closing arguments were made before the largest audience of the trial. Ninety-five spectators filled the cavernous courtroom where the trial began May 1 and jury selection two months before that. Many were police who investigated the case and defense investigators and clerks who worked for Abel and co-counsel John Storkel. For the first time, Marion County District Attorney Dale Penn also entered the courtroom to listen.

In Abel's 90-minute closing statement, he reiterated themes that were raised by the defense throughout the trial. He attacked the believability of state witnesses who said Gable admitted the killing to them and stressed that the state had failed to prove its case beyond a reasonable doubt.

Abel suggested that evidence might have been destroyed when police and paramedics first at the scene were allowed to walk across a grassy area between Francke's car and the porch where his body was found.

``The biggest error in this whole case -- the one reason you can never make a decision beyond a reasonable doubt -- is because of the first hour and five mintues'' when the grassy area was walked upon.

He also argued that there was no conclusive evidence that Francke was not killed by a number of attackers who ambushed him either at his car, as he left work, or even on the porch where his body was found. Francke might even have been killed as much as three hours later than when the state believes he died, Abel argued.

But Moore said these issues were red herrings that defied common sense. She said they were being raised by the defense to cloud real issues the jury should be considering.

In Abel attacks on prosecution witnesses, he said they were untrustworthy characters and people with drug abuse habits and criminal records.

He said defense witnesses testified that inmates at the Marion County Jail frequently tried to fabricate stories they could use to bargain for lenient treatment from the district attorney's office.

Abel quoted one defense witness who said, ``This (testimony against Gable) started out as a joke.''

Abel argued that the state's witnesses stood to profit for lying about Gable and said they were out to get him because Gable had been a ``snitch'' for the Keizer police narcotics team the summer after Francke's death.

Abel singled out the testimony of prosecution eyewitness Cappie ``Shorty'' Harden, who he said took the stories ``completely out of whack.''

He said the county inmates testified that Harden admitted lying and called himself the ``million-dollar baby'' because he expected money in return for his testimony, Abel said.

But Moore told the jury that they should look at the testimony as a whole and see whether statements from these admittedly unsavory individuals were corroborated or supported by other evidence.

``There's a common theme I want to hit upon,'' she told jurors.

``We're putting the puzzle together. The pieces of the puzzle are the witnesses you heard, the physical evidence'' and the testimony of police who investigated the crime.

``Because of the nature of the Michael Francke homicide and all the publicity over the last 2 1/2 years . . . we told you you'd have to glean all you've heard from the media, friends and family about the case,'' Moore said. ``That all stays outside this courtroom. You can't let speculation, rumor and conjecture enter into this case.''

Moore assailed testimony from Jodie Swearingen, a one-time state witness who told the grand jury that indicted Gable that she witnessed the killing. Swearingen changed her story six months later and appeared as a defense witness during the trial.

Swearingen, a 19-year-old methamphetamine user and seventh-grade dropout, told jurors that she had lied to police and to the grand jury that indicted Gable when she claimed to have witnessed Francke's death.

``Jodie -- we have to kind of look at her in bits and pieces, I suppose,'' Moore said, telling jurors that the law allowed them to consider Swearingen's testimony before the grand jury.

``You have to decide credibility. You have to decide which of those sworn statements is true,'' Moore said.

Moore reminded jurors that a month before Swearingen was interviewed by police, she told one juvenile counselor at Hillcrest School -- a home for delinquent girls -- that she was on the Corrections Department grounds with Gable on the night of the killing. And she told another counselor that she was either an accessory or a witness to murder.

Moore also noted that after Swearingen recanted her testimony to police and the grand jury, she fled Oregon and moved in with a friend in Colorado. There, Moore reminded jurors, Swearingen told her friend that ``some hot shot in Oregon got killed, and I witnessed it.''

``Those are the kinds of statements you can use to judge (what) she told you here on the witness stand and the statements she made elsewhere under oath,'' Moore said.

Moore also noted that Swearingen hired an attorney when she learned that police were interested in speaking to her about the Francke case and that they hammered out an agreement with police that would protect her from being prosecuted in the case.

``You might want to scratch your head for a moment,'' Moore said.

``You might want to ask yourself, `Why does somebody need immunity for something they never did and for something they never saw?' ''

``You might also throw into the hopper one other thing when you think about Jodie Swearingen . . . and why she changed her story,'' Moore said. ``How has this girl been living since age 14? With whoever would take her in and give her drugs.

``If she's got a snitch jacket (by testifying against Gable), nobody's going to take her in,'' Moore said. ``She can't live that way.''

Moore told jurors they should examine the consistency of statements made by Gable's friends and compare them with what evidence is known about the killing:

*Numerous witnesses told jurors that Gable said he was *lying across the seat of Francke's car when the corrections director grabbed him.

He told them that he got out of the car, lunged at Francke, stabbing him ``three or four times'' quickly, and then ran.

Moore noted that the autopsy showed that Francke was stabbed once through the left arm and once through the heart. His coat also was grazed by a third knife slash that didn't penetrate the coat to the skin.

``This isn't a long lengthy assault,'' Moore told jurors. ``It's Boom! Boom! Boom!''

Moore noted that Gable told police at one point that he frequently wore a tan London Fog trench coat at about the time Francke was killed. A janitor at the nearby state hospital told jurors that he saw a confrontation between two men outside the Corrections Department about the time Francke is thought to have been killed. One of the men made a ``hurt sound'' and headed toward the porch where Francke was found. The other man, wearing a tan trench coat, ran away, toward the hospital.

Moore noted that the hospital janitor who may have witnessed the attack said the man in the trench coat ran toward the area where Swearingen told the grand jury that Gable had parked his car. Another witness, Earl Childers, told jurors that he saw Gable driving away from the Corrections Department that night and that Gable was leaving from the same parking area.

Abel also attacked claims by the state that Francke was killed with a kitchen knife with a 6-inch blade, much like the one Gable was given by his ex-wife.

He noted that Dr. Werner Spitz, a Michigan pathologist who testified for the defense, told jurors that Francke was in fact slain by a pocket knife as little as 3 1/2 inches long.

But Moore noted that Spitz made his analysis not by looking at Francke's body or his wounds, but by looking only at photographs.

She added that Francke was stabbed clean through the left arm and that his fatal wound extended from the left nipple through the chambers of his heart and into the chest cavity behind it.

She said it strained logic and common sense to believe that a knife like the one described by Spitz could have caused those kinds of wounds.