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| 2/16/07 - Gable's latest appeal in peril Frank Gable's lawyer misses deadline for key court filing A missed deadline and a ticking legal clock threaten to sink the next legal appeal of Frank Gable, convicted more than 15 years ago in what is arguably Oregon’s most notorious and controversial murder. That's how the article by Nick Budnick of the Portland Tribune begins. Click here to read Mr. Budnick's article, "Gable's latest appeal in peril" The recent "Judgement on remand from the appellate court" is yet another example of the miscarriage of justice Frank has endured. Judge Yraguen's job was to rule based on a "preponderance" of the evidence presented. The only evidence presented was testimony by Frank over the telephone from a fed joint in Tallahasse, Florida as he was awaiting a con-air flight to Nevada in a transfer process that took almost two months to facilitate. It is no coincidence in my opinion that once Frank was in the process of being moved, Yraguen stepped up and demanded they hold the hearing on the remand from the appellate court. Yraguen had all year to hold this hearing, and he waits until Frank is being moved. Everyone knew Frank was going to be transferred. It's been on the table for over two years. Also, corrections authorities have a better argument for not divulging the whereabouts of an inmate during the transfer process due to security reasons. Apparently this applies to lawyers as well, because Mr. Hadley had no idea where his client was during the transfer process, so Frank was effectively denied access to counsel. Yraguen literally dimissed Frank's testimony as not being credible, because he says the state proved Frank to be a non-credible witness at trial. How could the state have done that? Frank was never allowed to testify at trial, and that was an argument posed at the post-conviction hearing. Apparently Frank is only a credible witness when he allegedly makes statements to jailhouse punks looking for a deal that the prosecution used to implicate Frank. Yraguen also had this to say about Frank's testimony..."this is one more example of a false bravado which is part of the character of the Petitioner and which led Petitioner to create a part of the evidence which led to his original conviction in the first place." Say what? In my opinion, this recent judgement was nothing more than legal maneuvering on the part of the appellate court to make it appear the appellate process was working...somewhat at least. It has proved to be nothing more than a distraction to Frank's appeals reaching the federal level, as is evidenced in Mr. Budnick's article. The "ex-post facto" (resentencing) argument has been a waste of time, and a distraction to working toward Frank being exonerated of all charges. Had he won this recent ruling he would've become eligible for parole around 2011. Being eligible doesn't necessarily mean he would be granted that parole once he became eligible, and if he was granted a parole, it would be directly to club fed to face a 6-8 year sentence on gun charges that run consecutive to his current state charges. The result of Frank's former wife and lawyer Karen Steele, who had Frank plead out to those charges. The only hope of Frank not having to serve that fed time is if he is exonerated of his state charges. I would hope Frank would receive a presidential pardon under those circumstances. As Mr. Budnick's article also states, "federal law asks that all state court remedies be exhausted before a federal appeal can be filed." This is the reason I believe time unfortunately had to be spent on the ex-post facto issue. It's getting worse for Frank these days in the wake of his recent transfer to Nevada from Florida. Once he reached Nevada he was placed in a classification unit, otherwise known as the fishtank. While in that classification unit corrections officials reviewed his file and decided to place him at the Nevada State Prison in Carson City. There he would've had access to all Indian programs including the "sweat lodge." Frank is of Native American heritage. He would've also been able to roam the yard, interact with others, workout on the weight pile, and jog the track which Frank loves to do. As soon as Frank reached NSP, the warden there decided he was a security risk and is recommending Frank be sent to Ely, Nevada, the site of their "super max" facility where all inmates are locked down all day. Some even have showers wheeled up to their cells at Ely max. I placed a call to Ely State Prison and verified that Frank is indeed on the roster to be transferred there. I spoke to a very nice and very helpful Corrections Officer (CO) who told me it could take a month or maybe more before Frank is actually tansferred, and that is in large part due to the fact that Ely State Prison is running at just about maximum capacity. The CO also explained the majority of the population there is locked down, although there is a "general population" that is given yard priviledges and access to the sweat lodge if the inmate is of Native American heritage. The "general population" inmates are those who have jobs inside the prison, and are housed in "Unit 8." There is no weight pile available to the inmates at Ely max. The CO also verified that Frank will lose many priviledges afforded inmates at NSP (a medium security facility) that are not available for inmates at Ely max if he is indeed transferred. The CO also stated that his roster did not indicate Frank was an interstate compact inmate, but suggested any complaints that anyone wishes to make about Frank being classified to a maximum security facility should be made to the state Frank was convicted in. This is how Frank is currently being treated after remaining disciplinary free for well over a decade. I strongly urge any of you who believe in Frank's innocence to contact the Oregon Department of Corrections and voice your concerns of Frank being placed in a maximum security unit and locked down all day. They have effectively placed Frank in jail inside the prison. Must this be allowed to happen while Frank does somebody else's time? Frank is still an Oregon inmate even though he's incarcerated in Nevada. Please send your complaints to the following... Karin Zeh - Interstate Compact Coordinator Oregon Department of Corrections 2575 Center St. NE Salem, OR. 97301 |
| June 28, 2005 Court hears Frank Gable's appeal David Celuch, the Portland attorney handling Frank Gable's current appeal, told the Oregon State Court of Appeals today that Frank should get a chance for a new trial or at least a resentencing so he might qualify for parole. A three judge panel consisting of The Honorable David V. Brewer , The Honorable Darleen Ortega , and The Honorable Rick T. Haselton , heard Celuch's argument that Frank's trial lawyers, Bob Abel and John Storkel, were ineffective on several grounds, including not adequately investigating evidence that Tim Natividad killed Michael Francke. Brewer is Chief Judge. Celuch asked the appeals court to set aside a circuit court judge's denial of Frank's request for a new trial, which could return his case to the circuit court for a new hearing. The judges appeared to focus most of their attention on Celuch's argument that Frank didn't waive his right to object to having the jury consider the no-parole sentence. The law allowing for the new sentence was passed after Mike Francke was killed. Courts generally rule that handing down more severe penalties that did not exist when a crime was committed violate constitutional protections against ex post-facto penalties unless defendants waive their rights. Celuch said since the no-parole sentence didn't exist at the time of the murder, Frank should be resentenced to life with a possibility of parole. It's possible Frank's aggravated murder convictions would require him to serve out at least 30 years even if given a chance of parole. Celuch contended that Frank never explicitly waived his ex post-facto protection, but state lawyers argue that he waived his rights because he was aware of them and did nothing. Carolyn Alexander, an Assistant Attorney General, told the appellate judges, courts have said that defendants can waive rights "by conduct." She said evidence showed that Frank was "very involved in his case and exerted a great deal of control" over what his lawyers did. Are these people for real? What about the letter Frank wrote to Judge West asking for a continuance because he didn't feel he was involved in his own defense enough? West entered the sealed envelope into the record, and promised to address it after the jury had made their decision. It was never addressed again. The appeal considered today was limited to whether legal errors were made at Frank's trial or if his lawyers were ineffective. The appeals court in an earlier appeal upheld his conviction. Seems to me if the court rules in Frank's favor on the ex post facto issue, it would lend credibility to the ineffective counsel argument as well. Guess we'll just have to wait and see. Celuch has 28 days to file an addendum to the appellate motion with regard to the ex post facto issue. I wonder how long it took for the appellate judges to discover today's Portland Tribune headlines? 2 say Gable didn’t do it-By Jim Redden The evidence just isn’t there-By Phil Stanford |
| June 14, 2005 Cappie "Shorty" Harden Recants Trial Testimony Within hours of this story hitting the streets, the two Oregonian repeators, Noelle Crombie and Les Zaitz scrambled to cover their ass. They spent five months, and a ridiculous amount of money to essentially tell us there's nothing they found to prove Gable's innocence. I spent one month with Shorty Harden, and he stepped up and told the truth on a promise from me I would get him some money in case of repercussions from law enforcement. I didn't have to give him the money, but I'm a man of my word. Information is exchanged for money on a daily basis in various forms, and prosecutors offer lenient sentences for testimony. Someone explain the difference to me. Everytime you lay down fifty cents for the Oregonian you're paying for information, and in my opinion, you're getting ripped off! You make the call. The Oregonian just got fronted off by an ex-con with a website, and there it is there! |
| Got something to say to Shorty? Email to: shorty@freefrankgable.com |
That was the headline of todays edition of the Portland Tribune. Shorty Harden, the
state's only eyewitness against Frank Gable in the murder of Michael Francke, told
Tribune reporter Jim Redden on Sunday that he never saw Gable kill Francke, and
that he wasn't even at the dome building the night of the murder. When asked why
he lied at the trial he said he was coerced by Oregon State Police officials who
threatened him.
"The state police, they forced me to, they threatened me. Like they--they said
they'd put me in prison, put a jacket on me so I wouldn't get out, and a few other
things I don't want to get into right now," said Harden. "Jacket" meaning snitch
jacket, is prison and street slang for what a "rat" or a "snitch" wears the rest of
his/her life, which usually isn't very long if the snitch is sent to the joint. Well, only
certain prisons these days.
The New Mexico prison riot in 1980 that Michael Francke was sent to mop up ended in the brutal murders of over 30 inmates who
were isolated from the general population due to their snitch status.
Harden's interview with the Portland Tribune was arranged by me at his request after spending the past month sizing each other
up. The money Shorty asked for was paid by the Francke brothers the day after the interview. No guarantee for Shorty, other than
my promise to him that I would get him the money the following day. It's quite a vulnerable feeling without money in your pocket if
you feel there may be repercussions for stepping up and telling the truth about something that many have gone to great lengths to
keep secret.
It's been quite an interesting month since the day I first met Shorty. Needless to say he was a bit surprised when I told him my name,
and explained I had created a website called www.freefrankgable.com, and I wanted to know if he would talk to me about Gable and
the Michael Francke murder. Somewhat reluctant at first, he agreed to talk to me after I told him I wasn't there to cause any trouble,
and that I just wanted to know for myself if he really did see Frank Gable kill Michael Francke.
"Hell no Frank didn't kill him," Shorty blurted out. "I wasn't even there!" We talked a bit more, then Shorty clammed up telling me he
didn't want to say anything else because I would just go put it on my website, and he'd have to worry about repercussions from the
state police and whoever else is involved in the cover-up. For what it was worth, I promised him I wouldn't do that without his
consent, and we talked awhile longer. I left with Shorty telling me I was welcome anytime. I returned two hours later. After returning
home it hit me hard that I'd just talked to the one guy I always wanted to talk to the most since I involved myself in this case. I had to
find out why Shorty was still so reluctant to come forward with what he knew after so many years. There are a few reasons, but
primarily he was concerned about the safety of his family. Another reason was putting himself back in the public eye in a big way,
and why bring that on himself and his family for a guy he didn't even know, and who the cops made him believe ratted him out once?
were isolated from the general population due to their snitch status.
Harden's interview with the Portland Tribune was arranged by me at his request after spending the past month sizing each other
up. The money Shorty asked for was paid by the Francke brothers the day after the interview. No guarantee for Shorty, other than
my promise to him that I would get him the money the following day. It's quite a vulnerable feeling without money in your pocket if
you feel there may be repercussions for stepping up and telling the truth about something that many have gone to great lengths to
keep secret.
It's been quite an interesting month since the day I first met Shorty. Needless to say he was a bit surprised when I told him my name,
and explained I had created a website called www.freefrankgable.com, and I wanted to know if he would talk to me about Gable and
the Michael Francke murder. Somewhat reluctant at first, he agreed to talk to me after I told him I wasn't there to cause any trouble,
and that I just wanted to know for myself if he really did see Frank Gable kill Michael Francke.
"Hell no Frank didn't kill him," Shorty blurted out. "I wasn't even there!" We talked a bit more, then Shorty clammed up telling me he
didn't want to say anything else because I would just go put it on my website, and he'd have to worry about repercussions from the
state police and whoever else is involved in the cover-up. For what it was worth, I promised him I wouldn't do that without his
consent, and we talked awhile longer. I left with Shorty telling me I was welcome anytime. I returned two hours later. After returning
home it hit me hard that I'd just talked to the one guy I always wanted to talk to the most since I involved myself in this case. I had to
find out why Shorty was still so reluctant to come forward with what he knew after so many years. There are a few reasons, but
primarily he was concerned about the safety of his family. Another reason was putting himself back in the public eye in a big way,
and why bring that on himself and his family for a guy he didn't even know, and who the cops made him believe ratted him out once?
Those were the issues Shorty and I discussed over the next month while we
spent more time getting to know each other. That included a weekend trip to the
beach in my RV with my family and his, and of course we brought his kid's dog,
Harley. Shorty also fixed the generator in my RV before we left. I wish I had video
of Shorty with his kids that weekend.
When we returned, Shorty and I got together more frequently, and spent alot of
time restoring the body of his corvette, and preparing it to paint in my shop.
Here and there I would bring up the website, and he finally sat down with me and
checked it out. I think he was impressed by how much time and work I had put
into learning about the case, and how I created the website to bring awareness
to the issue. He commented what I was doing was a "stand-up thing," and was
quite surprised upon learning I never knew Frank until I created the website. We
spent time watching the movie "Without Evidence," laughing and joking about
how Angelina Jolie was playing the role of Jodie Swearingen, and we talked
about Frank. I even received a phone call from Frank while Shorty and I were
working on his car, and I talked to him not more than five feet from Shorty. We
just had one of our regular conversations. Shorty knew who I was talking to, but
Frank knew nothing of the scenario at that moment.
I'm not exactly sure how or why Shorty decided to step up. The small chunk of
change he got on nothing more than a promise from me is completely
insignificant because that's practically all he got after the interview, a promise!
Not the way to negotiate a deal like this if he was doing it for the money. I think
he just knew it was the right thing to do, and I think he also realized Frank would
probably rot in prison the rest of his life if he didn't. Maybe it was the letter I
received from Frank last week that I asked him to read, which showed how much
Frank appreciated all that I have done to prove his innocence, and that he had
no hard feelings toward Shorty. He wasn't angry, and he understood. As far as
Frank was concerned, him and Shorty were both victims of a corrupt system, and
Frank was just gonna leave it in the hands of God. I'd like to think God took the
opportunity to step up too.
spent more time getting to know each other. That included a weekend trip to the
beach in my RV with my family and his, and of course we brought his kid's dog,
Harley. Shorty also fixed the generator in my RV before we left. I wish I had video
of Shorty with his kids that weekend.
When we returned, Shorty and I got together more frequently, and spent alot of
time restoring the body of his corvette, and preparing it to paint in my shop.
Here and there I would bring up the website, and he finally sat down with me and
checked it out. I think he was impressed by how much time and work I had put
into learning about the case, and how I created the website to bring awareness
to the issue. He commented what I was doing was a "stand-up thing," and was
quite surprised upon learning I never knew Frank until I created the website. We
spent time watching the movie "Without Evidence," laughing and joking about
how Angelina Jolie was playing the role of Jodie Swearingen, and we talked
about Frank. I even received a phone call from Frank while Shorty and I were
working on his car, and I talked to him not more than five feet from Shorty. We
just had one of our regular conversations. Shorty knew who I was talking to, but
Frank knew nothing of the scenario at that moment.
I'm not exactly sure how or why Shorty decided to step up. The small chunk of
change he got on nothing more than a promise from me is completely
insignificant because that's practically all he got after the interview, a promise!
Not the way to negotiate a deal like this if he was doing it for the money. I think
he just knew it was the right thing to do, and I think he also realized Frank would
probably rot in prison the rest of his life if he didn't. Maybe it was the letter I
received from Frank last week that I asked him to read, which showed how much
Frank appreciated all that I have done to prove his innocence, and that he had
no hard feelings toward Shorty. He wasn't angry, and he understood. As far as
Frank was concerned, him and Shorty were both victims of a corrupt system, and
Frank was just gonna leave it in the hands of God. I'd like to think God took the
opportunity to step up too.
| Taylor family RV |
| Shorty's repainted corvette |
| Frank Gable talks about Earl Childers and Shorty Harden This video is a portion of an interview with Frank Gable while he was awaiting trial. There are other videos available for viewing on the Audio and Video page of this website. |
| Another Witness Recants Her Testimony |
This is a recent photo of Jodie Swearingen. In the spring of 1989, Jodie (then 19) testified
to a grand jury that she was with prosecution witness Cappie "Shorty" Harden when she
saw Frank Gable attack Michael Francke. But in the fall of 1989, Swearingen recanted her
testimony, saying that she lied to the grand jury. She said she wasn't present on the scene,
and that she lied to protect a boyfriend, Tim "Rooster" Natividad, who was shot and killed
by another woman two weeks after Francke was murdered. The other woman, Elizabeth
Godlove, plead self-defense, and was acquitted by a jury in May 1989. Jodie also said she
was allowed by state police, and Deputy District Attorney Sarah Moore to meet with Shorty
Harden shortly before they testified in front of the grand jury. She said Moore left the room
but police allowed her to talk to Harden to "get our stories straight". Authorities admit the
two were allowed to meet, but deny they were allowed to discuss the case. In the movie,
"Without Evidence", her character was played by Angelina Jolie. Click here for Jodie
Swearingen page, and to read a letter Jodie sent to Frank Gable in December of 1990 while
both were incarcerated, and also view video of Jodie under hypnosis
to a grand jury that she was with prosecution witness Cappie "Shorty" Harden when she
saw Frank Gable attack Michael Francke. But in the fall of 1989, Swearingen recanted her
testimony, saying that she lied to the grand jury. She said she wasn't present on the scene,
and that she lied to protect a boyfriend, Tim "Rooster" Natividad, who was shot and killed
by another woman two weeks after Francke was murdered. The other woman, Elizabeth
Godlove, plead self-defense, and was acquitted by a jury in May 1989. Jodie also said she
was allowed by state police, and Deputy District Attorney Sarah Moore to meet with Shorty
Harden shortly before they testified in front of the grand jury. She said Moore left the room
but police allowed her to talk to Harden to "get our stories straight". Authorities admit the
two were allowed to meet, but deny they were allowed to discuss the case. In the movie,
"Without Evidence", her character was played by Angelina Jolie. Click here for Jodie
Swearingen page, and to read a letter Jodie sent to Frank Gable in December of 1990 while
both were incarcerated, and also view video of Jodie under hypnosis
| Jodie Swearingen |
| Scott McAlister, the Assistant Oregon Attorney General assigned to the Corrections Department until just before Francke was murdered has reason to be concerned these days. Linda Parker, a woman who formerly worked for him at the Utah Department of Corrections, recently told the Portland Tribune that she overheard McAlister say the Francke killing was supposed to look like a suicide. In 1990, she supplied authorities with evidence that led to child pornography charges against McAlister, and also brought a successful sexual harassment case against him. Parker also told the Portland Tribune she saw McAlister with numerous documents related to the Francke murder investigation. Click here for Scott McAlister page |
| These documents should not have been in his possession since he was no longer working for the Oregon Justice Department. She also said McAlister bragged about setting up inmates in Oregon and Utah on phony charges if they angered him, and that he personally transported cocaine from Oregon to Utah on at least two occasions and arranged for other shipments of cocaine from Oregon as well. Scott McAlister adamantly denies Parker's claims, while Parker stands behind her account she gave 17 years ago during the child pornograhy case. That's right folks! Her statements have been documented for the past 17 years! Hmmm...I wonder what Bob Abel's drink of choice was back when he represented Frank Gable? A drinking problem is about as good a reason as any to provide such a completely inadequate defense. Bob Abel denied having a drinking problem during the trial. I suppose that's why he checked himself into alcohol rehab just after the trial ended. |
| Linda Parker - Click here to read her statement |
| The Car: Francke's white Pontiac Bonneville was one of only a few cars left in the parking lot at Corrections headquarters the night of the murder. What sane burglar, let alone a drug-addled, paranoid one, would choose this car, in an open lot at a state law-enforcement building? The car was found with its door open; neither Francke's car phone nor his stereo was tampered with. |
| Neil Goldschmidt The 30 year secret Click here for story |
| Long before Neil Goldschmidt's secret became public, many influential Oregonians knew something about it. By Nigel Jaquiss-Click here |
Oregonian continues to downplay conspiracy theories in May 22, 2005 edition
I can't help but wonder if these two reporters noticed this...Francke letter to Attorney General while reviewing McAlister's
personnel file. The letter clearly indicates Michael Francke's displeasure with services rendered by McAlister, and requests a
replacement. Furthermore, Francke requests to continue the discussion in person with the Attorney General. Polite emails by me
to Dave Frohnmayer, the Attorney General at the time have been ignored. I simply asked him to comment on the letter. Why the
silent treatment?
The article has McAlister admitting he was a womanizer and hard drinker, and after leaving Oregon was convicted in Utah of a
misdemeanor for possessing two videos depicting teen sex -- evidence from an old case McAlister prosecuted. As if to suggest
possessing these videos was a careless mistake. Why else go to the trouble of informing us the videos were from an old case?
They can sugarcoat it all they want, but the fact of the matter is McAlister was originally charged with a felony that he was allowed
to plead down to a misdemeanor of possessing child porn. A pedophile? You make the call; I did.
personnel file. The letter clearly indicates Michael Francke's displeasure with services rendered by McAlister, and requests a
replacement. Furthermore, Francke requests to continue the discussion in person with the Attorney General. Polite emails by me
to Dave Frohnmayer, the Attorney General at the time have been ignored. I simply asked him to comment on the letter. Why the
silent treatment?
The article has McAlister admitting he was a womanizer and hard drinker, and after leaving Oregon was convicted in Utah of a
misdemeanor for possessing two videos depicting teen sex -- evidence from an old case McAlister prosecuted. As if to suggest
possessing these videos was a careless mistake. Why else go to the trouble of informing us the videos were from an old case?
They can sugarcoat it all they want, but the fact of the matter is McAlister was originally charged with a felony that he was allowed
to plead down to a misdemeanor of possessing child porn. A pedophile? You make the call; I did.
The article further states that McAlister has had to endure having his picture taken by an
ex-con associate of Kevin Francke's who posted it along with a map to his home on a
website dedicated to freeing Frank Gable. Is this an attempt by the Oregonian to garner
sympathy for McAlister? Noelle Crombie came to my house twice to obtain and return
documents she requested for her investigation, and never once questioned me about
my background or motives for building the site. Instead she runs a background check on
me and sums me up as an ex-con associate of Kevin Francke. That title describes about a
minute in my life long ago, and is an obvious attempt to discredit me, my website and
Kevin. I'm not an associate of Kevin Francke, I'm just an ex-con and son of a retired
Oregon cop who took it upon himself to devote twice as much time as the Oregonian to
investigating this case, and creating a website to inform others. I snapped a picture of
McAlister and posted a map to his home because I think people have a right to know if a
pedophile is living in their neighborhood.
I wonder why McAlister didn't want to talk to me, but chose to talk to Oregonian
reporters, but then again, the Oregonian is partial to pedophiles considering their
handling of the Goldschmidt "affair", instead of accurately reporting it as the repeated
rape of a 14 year-old child.
So everyone, after months of work, and lots of money spent by the Oregonian, all we get
is another rehashing of the same old thing. Nothing new of any merit. I've just been
shown the document that leads Noelle Crombie to believe Scott McAlister rode home
with Michael Francke from the meeting in Lake Tahoe where it's purported McAlister and
Francke had it out with each other. See Evelyn Meek's interview...a must view if you have
any doubts left. There's nothing to indicate the itinerary of that document was even
followed, and it's a lame piece of evidence to substantiate the preposterous theory that
McAlister and Francke drove home together.
Seems there's a concerted effort to downplay that scenario after these reporters spoke
with McAlister recently. I'm not surprised!
As you have grown to expect, the Oregonian just dug themselves another hole to crawl
into, when they still have not gotten out of their Neil Goldschmidt hole.
I would also like to point out that the Oregonian reporters make mention of John Kevin
Walker's inability to remember his recant of his trial testimony in an interview with Roger
Harris in 1993. The transcript they showed him came from the tape recordings of that
interview which I will try to get up on this site as soon as possible. Maybe that will help to
joggle this fool's mind! In the meantime, click here to read an email I received from the
person who transcribed that taped interview.
ex-con associate of Kevin Francke's who posted it along with a map to his home on a
website dedicated to freeing Frank Gable. Is this an attempt by the Oregonian to garner
sympathy for McAlister? Noelle Crombie came to my house twice to obtain and return
documents she requested for her investigation, and never once questioned me about
my background or motives for building the site. Instead she runs a background check on
me and sums me up as an ex-con associate of Kevin Francke. That title describes about a
minute in my life long ago, and is an obvious attempt to discredit me, my website and
Kevin. I'm not an associate of Kevin Francke, I'm just an ex-con and son of a retired
Oregon cop who took it upon himself to devote twice as much time as the Oregonian to
investigating this case, and creating a website to inform others. I snapped a picture of
McAlister and posted a map to his home because I think people have a right to know if a
pedophile is living in their neighborhood.
I wonder why McAlister didn't want to talk to me, but chose to talk to Oregonian
reporters, but then again, the Oregonian is partial to pedophiles considering their
handling of the Goldschmidt "affair", instead of accurately reporting it as the repeated
rape of a 14 year-old child.
So everyone, after months of work, and lots of money spent by the Oregonian, all we get
is another rehashing of the same old thing. Nothing new of any merit. I've just been
shown the document that leads Noelle Crombie to believe Scott McAlister rode home
with Michael Francke from the meeting in Lake Tahoe where it's purported McAlister and
Francke had it out with each other. See Evelyn Meek's interview...a must view if you have
any doubts left. There's nothing to indicate the itinerary of that document was even
followed, and it's a lame piece of evidence to substantiate the preposterous theory that
McAlister and Francke drove home together.
Seems there's a concerted effort to downplay that scenario after these reporters spoke
with McAlister recently. I'm not surprised!
As you have grown to expect, the Oregonian just dug themselves another hole to crawl
into, when they still have not gotten out of their Neil Goldschmidt hole.
I would also like to point out that the Oregonian reporters make mention of John Kevin
Walker's inability to remember his recant of his trial testimony in an interview with Roger
Harris in 1993. The transcript they showed him came from the tape recordings of that
interview which I will try to get up on this site as soon as possible. Maybe that will help to
joggle this fool's mind! In the meantime, click here to read an email I received from the
person who transcribed that taped interview.
| Picture I took of Scott McAlister in front of his home in Tempe, AZ |
| Home of Scott McAlister |
| The Portland Tribune responds 10 things you may not have read about Francke case-By Jim Redden What case rests on a witness like this?-By Phil Stanford |
| Willamette Week adds their two cents FRANCKE FRACAS-By Nick Budnick Patrick Francke responds |
"A Killing That Won't Go Away" Jim Hill - Former Oregon Senator
| In memory of Michael Francke October 2, 1946 - January 17, 1989 |
| Only those who dare to fail greatly can ever achieve greatly. --Robert Kennedy-Former US Attorney General |
As expected, the Oregonian has published the results of their five-month investigation into
this case, and have essentially come to the conclusion that the person guilty of the murder
of Michael Francke is behind bars.
The Oregonian simply rehashed the same crap written by their reporters, John Snell and
Phil Manzano after the trial had concluded. See Manzano/Snell rant
What strikes me as odd is how they glossed over Scott McAlister's conviction of
possessing child pornography, and made a considerable effort to play up his
accomplishments and former positions held. As they stated in their article...
"Scott McAlister, now 58, raised in small-town Oregon and educated at Duke University law
school, had a reputation as a cocky renegade that made him a liability in the eyes of the
consensus-building Michael Francke. McAlister's personnel file at the attorney general's
office portrays him as a hard worker with sharp legal skills."
this case, and have essentially come to the conclusion that the person guilty of the murder
of Michael Francke is behind bars.
The Oregonian simply rehashed the same crap written by their reporters, John Snell and
Phil Manzano after the trial had concluded. See Manzano/Snell rant
What strikes me as odd is how they glossed over Scott McAlister's conviction of
possessing child pornography, and made a considerable effort to play up his
accomplishments and former positions held. As they stated in their article...
"Scott McAlister, now 58, raised in small-town Oregon and educated at Duke University law
school, had a reputation as a cocky renegade that made him a liability in the eyes of the
consensus-building Michael Francke. McAlister's personnel file at the attorney general's
office portrays him as a hard worker with sharp legal skills."
| Scott McAlister |
June 14, 2005 "Eyewitness" Recants -By Jim Redden
| 5/9/07 The Oregonian’s Frank Gable Affair: “Unprecedented Access” Not to the murder defendant By Pam Quinn - AKA Granny In the Friday, May 27, 2005 Oregonian, reporters Noelle Crombie and Les Zaitz journalistically gloated about having scooped “unprecedented access to the files of Marion County district attorney and the Oregon State Police on the Francke case” in an apparent effort to support their previous report in the Sunday Oregonian propounding their positive determination regarding the validity of Frank Gable's conviction for the 1989 murder of Corrections Director Michael Francke. Crombie and Zaitz also claimed they “reviewed tens of thousands of pages of OSP investigative reports, which included material not disclosed to Gable lawyers” prior to their opining in print about Gable’s conviction. The Oregonian had prominently placed the Crombie and Zaitz article about Gable's conviction before the statewide Court of public opinion on Sunday, May 22, 2005. Undoubtedly, Sunday editions are much more widely circulated and read throughout Oregon, than weekly editions. The Large Legal Elephant before us all This commentary is not about the determinations of Crombie and Zaitz, but a much larger and more profound issue. The Crombie and Zaitz May 27, 2005 article left a large legal elephant in the middle of the room we can’t ignore, our system of adversarial justice and whether, in reality, it functions to allow defendants a fair opportunity to pursue and prepare their defense before trial. The Oregonian has encouraged it’s readers to rely on the newspaper’s own determination that materials “not disclosed” to the Gable lawyers would have been of absolutely NO exculpatory value to Frank Gable’s defense. Whether a major newspaper taking a public position as determiner of such a serious matter should be considered self-righteous, or unethical, is not the issue of this commentary. The large legal elephant the Oregonian ignores, though any one with common sense cannot, is shouldn’t the determination of the exculpatory value of this “not disclosed” material which was reviewed by the Oregonian, have been transparently available before trial to the man facing a possible death sentence, not singularly to a newspaper a decade and a half after his conviction? Developing a Third-party guilt defense: Is the legal cart forever before a defendant’s horse? For a moment, imagine you are charged with a crime you know you are innocent of, and leads have been uncovered by your defense investigators pointing to another specific person or persons that may have done the bad deed. Desiring to leave no stone unturned, you seek potential exculpatory evidence you believe to be in the hands of government agencies. A likely result? It is withheld, secreted, access is judicially denied, and some potential evidence even turns up missing while in law enforcement custody. Welcome to the Frank Gable Story. The Gable case highlights how our ‘adversarial system’ of jurisprudence in the United States is driven by rules of evidence, codified, precedent and common law. For any Oregon defendant attempting to prepare a third-party guilt defense to any criminal charge, the Gable case underscores that such an attempt is fraught with great evidentiary disadvantages even when a criminal defendant’s very life may be at stake in a capital murder trial. Quaint notion it may be, but what if SOMEONE ELSE is actually guilty other than a charged defendant? Third-party guilt evidentiary restrictions apply to use of such evidence and therefore control such a defense argument at an actual trial. The legal threshold for inclusion of third-party guilt evidence at trial is extraordinary. Herein lies an elephant sized question: Should a defendant pursuing and investigating a third-party guilt defense be judicially preempted from accessing materials and files regarding other possible suspects or leads, such files and materials which are being purposefully withheld by government agencies from the defense, though the defendant has not yet asked the court to include such files or materials as evidence at trial? Was the trial Court's ruling arbitrary, as it ignored a presumption of innocence for Gable, while the prosecution labored under no similar, special restrictions in seeking to present evidence later at trial? Indeed, the trial Court in the Gable case appears to have arbitrarily ruled that to view files that may or may not contain vital third-party guilt exculpatory evidence, such value which was arguably unknown to the Court, the defendant must first connect the dots for a third-party guilt defense, without the use of any exculpatory evidence that may be within the files. Was Gable's constitutional right to prepare a third party guilt defense trampled? Marion County Circuit Judge Gregory West burdened Frank Gable with a threshold requiring proof of a nexus (regarding the murder) between a dead man, and one who had previously confessed to the murder in order to even view records or materials about the two men that existed in government custody. This burden was above and beyond that required by rules of evidence to include these materials (that might have been found in the withheld files) at trial as evidence. Did this unconstitutionally chill the defendants right to prepare for the particular type of defense he felt was his strongest option? There is a strong likelihood such a burden placed upon Gable by the Court may indeed have been unconstitutional because it arbitrarily discriminated against the defendant, and undermined his right to a presumption of innocence. Using similar reasoning as put forth by The National Association of Criminal Defense Lawyers (“NACDL”) amicus brief in Holmes v South Carolina, one could argue in the Gable case: The Oregon Court’s decision to arbitrarily discriminate against the defense's attempt to gather evidence for a particular type of defense while the Marion County District Attorney "labored under no similar, special restrictions in seeking to present evidence later to a jury supporting its allegations" of Frank Gable’s guilt, should be held as unconstitutional. The US Supreme Court decisions in Holmes v. South Carolina and in Chambers v. Mississippi are the rare cases where the Federal Courts have reviewed and reversed in favor of a defendant upon the constitutionality of the overly restrictive application or interpretation of the lower State courts application of Rules of Evidence specific to "third-party guilt defense" type cases wherein such a defense or evidence was excluded. The Federal Courts have acknowledged that, as a general rule, “the accused, in exercising his right to present a complete defense, must comply with states’ “established rules of procedure and evidence.” But, “where constitutional rights directly affecting the ascertainment of guilt are implicated,” those rules “may not be applied mechanistically to defeat the ends of justice.” Chambers, 410 U.S. at 302. Unmovable Legal Elephant sits on government controlled records and materials: media reports At many turns, in trying to follow leads toward a third-party guilt defense, the same doors that opened to the Oregonian’s Crombie and Zaitz were slammed shut to Frank Gable. During “’investigative interviews, the names Johnny Crouse and Timothy Natividad were mentioned by numerous potential defense witnesses. A one Richard Dallas Welch, interviewed pretrial by a defense investigator described that a one Cynthia Hathaway had told him, that Johnny Lee Crouse told her, that he (Crouse) and Tim Natividad had committed the Francke murder. Mr. Welch related that John Crouse and Tim Natividad ran around together. In pursuit of this particular defense, Gable’s lawyers attempted to access records that may shed light on the involvement of these two men. One man, Timothy Natividad was dead within two weeks of the Francke murder, and the other who had previously confessed to the murder to police, Johnny Lee Crouse, is still alive. Pretrial media reports covered the rulings of trial Judge West, acts to withhold information by then Marion District Attorney Dale Penn, and the "loss" of defense subpoenaed materials by the Marion County Sheriff. DALE PENN: BRUISED EGO or hiding a bruise or two? It was reported in the Oregonian "Rooster Gets the Last Crow" "Pursuant to a request from Gable's defense, investigators from Penn's office had visited the home of Tim Natividad's parents and seized certain articles of clothing." and that Marion County District Attorney Dale Penn "loudly told at least one reporter" the defense was trying to "turn this case into a CIRCUS.'' A BRUISE THE SIZE OF A SILVER DOLLAR May 23, 1990 PHIL STANFORD of the Oregonian Staff "There was, no doubt about it, a round, purple B R U I S E , on Michael Francke's forehead. You can see it clearly in one of the autopsy photos, just as the brothers, Pat and Kevin, have been saying all along." .... last week, the medical examiner's own autopsy photos started making the rounds. This Sunday the Salem Statesman Journal published a front-page story by Steve Jackson, to the effect that the autopsy photographs reveal wounds that were not described in the official report. ``Francke autopsy puzzling,'' said the headline. .......just below this round bruise, an inch or so closer to Francke's eyebrow, there's another mark not mentioned in the autopsy report: An indentation, purpled around the edges and whitish in the center. That's just one of the photos that's got the Francke brothers going now. There's another one, too, which shows what appears to be stripe-like bruises on his upper-right bicep -- as if someone had been holding Francke from behind. A reasonable person can't blame Gable for pursuing the autopsy reports and photos, and more regarding Natividad. Head butts for self defense are a self defense technique that does not even require the application of martial arts and are standardly taught in boot camp to military personnel. Simply explained a head butt for self defense is making use of your head (which is made of powerful bones) to hit the attacker/ offender. The success of this technique lies in how sharp you hit the other person in the facial area. Michael Francke, the murder victim, may well have been familiar with military self defense techniques of this type. “ROOSTER GETS THE LAST CROW” Prior to Gable’s trial in 1991, on September 7, 1990 an article titled “ROOSTER GETS THE LAST CROW”, written by PHIL STANFORD was published in the Oregonian. Stanford wrote: “the STATE POLICE'S OWN investigative report contains several references to Natividad and his possible connection to the Francke murder. None of them, it appears, was taken seriously by the authorities. But they certainly caught the attention of Gable's defense team. In June, shortly after he took over as lead investigator for the defense, Tom McCallum made a trip to the county medical examiner's office to request a copy of Natividad's autopsy report. He had done this a hundred times before and had never been refused. This time, though, the medical examiner, Peter Batten, turned him down. When McCallum asked why, Batten told him he was acting on orders from Dale Penn (then Marion County District Attorney). Then (sic) Abel went to court to demand the release of the Natividad autopsy report and any other information the STATE POLICE had collected on Natividad. Once again, the DA's office resisted. ``We don't think it has any relevance to the case,'' said Deputy District Attorney Sarah Moore. The judge ( Gable trial Judge Gregory West) agreed.” “GABLE AGAIN SEEKS EVIDENCE IN SECOND DEATH” Another article ran in the Oregonian on October 13, 1990 “GABLE AGAIN SEEKS EVIDENCE IN SECOND DEATH” by PHIL MANZANO. Manzano wrote: Lawyers see link to Francke case, but DA says deaths are not related “Lawyers for the man accused of murdering Corrections Director Michael Francke resubmitted a request Friday for evidence from another death, claiming that victim might be related to the Francke homicide. Bob Abel, lead lawyer for Gable, submitted a request in August for police reports and the autopsy from the Jan. 31, 1989, Salem killing of Timothy Natividad because Natividad's name appears five times in police reports on the Francke murder. Marion County Circuit Judge Gregory West turned down the request, but left the door open for the defense to resubmit a motion for the Natividad files. Marion County prosecutors have resisted turning over evidence from the Natividad case because they say there is no link between the two deaths.” The outcome? November 10, 1990 the Oregonian reported: JUDGE DENIES GABLE DEFENSE BID FOR POLICE FILES by PHIL MANZANO - Oregonian Staff Godlove said he (Natividad) came home with a bandaged wound on his left lower leg and a large BRUISE in the middle of his forehead Attorneys for the man accused of murdering Corrections Director Michael Francke will not get police files on another Salem killing they claim is linked to Francke's death, a judge ruled Friday. Lawyers for Frank Gable have sought files from the Jan. 31, 1989, murder of Timothy Natividad. Gable is accused of having killed Francke two weeks earlier. In a letter to prosecutors, Marion County Circuit Judge Gregory West said Friday he was denying the defense request because(Gable's) lawyers had failed to ``establish that the information requested would be `favorable' and `material' to Mr. Gable's guilt or innocence.'' Marion County prosecutors refused to release Natividad's file because their investigation had found no link between the two cases. Gable's attorneys (sic) argued that, while prosecutors do not think Natividad is involved, they want the files for their own investigation. In submitting their requests for the Natividad files, Gable's lead attorney, Robert Abel of Salem, introduced affidavits from Godlove who told of suspicious activities involving Natividad. Godlove said Natividad had carried a ``boot knife'' and that the night Francke was killed with a knife, Natividad didn't come home until 3 a.m. (sic). After Jan. 17, she said, she saw Natividad with a large amount of money. However, "prosecutors argued that Godlove never spoke of her suspicions" during her murder trial for shooting Natividad, only four months after the Francke murder. ‘YOU'RE NOT PARANOID IF IT'S REALLY TRUE’ On February 27, 1991, The Oregonian published an article ‘YOU'RE NOT PARANOID IF IT'S REALLY TRUE’ written by PHIL STANFORD, of the Oregonian Staff. Stanford wrote: “Natividad's notebooks might have information that would crack this baby wide open. As Kevin puts it, we'll never know until we take a look. But the problem is that for the past two years they've been locked up in a storage locker, under police seal. And no one -- not even Kevin's new girlfriend, Elizabeth (acquitted of murdering Natividad in self- defense) -- has read them. …when (Elizabeth) Godlove was arrested, the police seized everything in her apartment -- her belongings and Natividad's -- and locked them up in a storage locker as potential evidence. About a month later Godlove and her mother, Sylvia, on behalf of Natividad's son and rightful heir, promptly sued to get the stuff back. Whereupon Natividad's parents, asserting their claim to Tim Natividad's worldly goods, counter-sued. Godlove's mother even hired a lawyer, John Jensen -- who, like any good lawyer, proceeded to conduct an inventory: One bag of knives; 13 electric guitars (Natividad sometimes played with a heavy metal group called Nemesis); assorted amplifiers, equalizers and police scanners; a TV set and VCR; six handguns; about a dozen rifles -- and four notebooks containing ``drug records and transactions.'' So, what happened to those NATIVIDAD notebooks of “drug records and transactions”? ‘THE ROOSTER WRITES POETRY TOO, DOES HE? Reported by the Oregonian on April 24, 1991 in an article ‘THE ROOSTER WRITES POETRY TOO, DOES HE? ’ by PHIL STANFORD - of the Oregonian Staff: Stanford wrote: “According to the court watchers, the murder trial of Frank Gable, the man accused of killing his brother, Michael, could get under way this Monday, give or take a couple of days… Those notebooks, for example -- the ones belonging to Tim ``The Rooster'' Natividad. ….There are three drug notebooks in the inventory, plus some other drug records on loose sheets of paper. Anyway, the defense finally gets around to issuing a subpoena -- and what do they get? One miserable little spiral notebook. And what happened to the rest? Duh, we don't know, says the county. ``Gone forever,'' says Kevin (Francke, brother of the victim). DALE PENN'S CIRCUS OR NOT: EVEN CIRCUS ELEPHANTS HAVE RIGHTS In a constitutional analysis it may well be found that the trial Court’s refusal of Gable's attorney requests for access to specific government-controlled records and materials appears arbitrary and discriminating against Gable as a criminal defendant in pursuing the investigation and preparation of a viable defense. Remember, Marion County Circuit Judge Gregory West said he was denying the defense request because Gable "F A I L E D" to "establish that the information requested would be `favorable' and `material' to Mr. Gable's guilt or innocence." Rules of evidence appear to have been mechanistically applied by the trial Court in violation of Gable's constitutional right to prepare for a particular type of defense. There is an clear implication that Judge West's rulings to withhold files and materials, which the Judge had no way of knowing the exculpatory value of to the defendant, may have directly affected the ascertainment of guilt, defeated the ends of justice, and most certainly ignored Gable's presumption of innocence. IN A PEANUT SHELL The trial Court's judicial denial of the defense request.. because Gable "F A I L E D" to "establish that the information requested would be `favorable' and `material' to Mr. Gable's guilt or innocence." certainly ignored a CAPITAL MURDER DEFENDANT'S presumption of innocence. |
| Historical background on third- party guilt defense and an in- depth review of the issue can be found here: http://lsr.nellco. org/cgi/viewcontent.cgi? article=1064&context=cornell/l srp excerpt: Cornell Law School Legal Studies Research Paper Series,Year 2006 Paper 6, titled "Every Juror Wants a Story" relevence: regarding Third Party Guilt and the Right to Present a Defense by John H. Blume, Sheri L. Johnson, and Emily C. Paavola Third party guilt evidentiary restrictions have a long history in American jurisprudence. From their inception up through the mid-1970s, most American courts followed the old English common law rule that incriminating statements made by a third party were excluded as hearsay and held that only statements against pecuniary or proprietary interests were “sufficiently reliable to warrant their admission at the trial of someone other than the declarant.” Lilly v. Virginia, 527 U.S. 116, 129 (1999)(citing Donnelly v. United States, 228 U.S. 243 (1913). In addition to the rule which categorically refused to recognize any “against penal interest” exception to the hearsay rule, courts developed special restrictions on the admissibility of third party guilt evidence in general as early as the 1800s. See, e.g., State v. Fletcher, 33 P. 575 (Oregon 1893); Felix v. Maryland, 1880 WL 5075 (Md. Ct. App. 1880); Stanley v. State, 89 S.W. 643 (Tex. Crim. 1905). These third party guilt evidence rules prevented admission of not only out-of- court statements by third parties, but other evidence as well. For example, in State v. Fletcher, the Oregon Supreme Court excluded evidence that a third party had confessed to the crime as well as evidence that he had a motive to commit the crime, was seen near the scene of the crime shortly after it occurred, and was wearing clothing matching a witness’s description of the perpetrator. State v. Fletcher, 33 P. 575 (Oregon 1893). Modern third-party guilt evidentiary restrictions apply to a variety of evidence including motive, opportunity, other crimes committed by the third-party, evidence that the third-party resembles the accused, or evidence that the third-party confessed to committing the crime. This collection of possibilities is typically lumped together for purposes of evaluating whether the entirety meets the relevant standard for admissibility of third-party guilt evidence. However, even if the sum of evidence meets the third-party guilt standard, it may nonetheless be excluded under other evidence rules. |
| Rooster writes poetry The following poem was written by Tim Natividad (Rooster) in the few days preceeding his own demise on January 30th, 1989; just two weeks after the murder of Michael Francke It happened on a lonely night, No moon, no stars were seen. No witnesses to hear the cries, Of broken shattered dreams. Gone is a future full of hope, Lonely visions in it's place. Despair and anguish, shown openly upon a grieving face. Hopes repaired by heartache, Love has given into pain. Life vanishes into the air, Now there's nothing left to gain. It ended then, that cold dark night, No moon, no stars above. No witnesses heard that last faint cry, Of the suffering cry of death. Timothy David Natividad |
| Note from webmaster: Understandably, the Third Party Defense argument promises to be a challenging, uphill battle. It will require a motivated and dedicated attorney who is prepared to argue it before the US Supreme Court if need be. Only two convictions have been overturned using the Third Party Defense stategy, although it is the feeling of the webmaster and the author of the commentary at right that Frank Gable's case could provide an successful, precedent setting argument for an determined attorney which would benefit Frank Gable and wrongfully convicted defendants for years to come, and provide constitutionality to their defense. |
| Trial Judge Gregory West |
| Former Marion County District Attorney Dale Penn |
| Frank Gable's Defense Attorney Bob Abel |
| Defense Attorney John Storkel |
| Tim (Rooster) Natividad |
| Johnny Crouse (circa - 1989) |
| Johnny Crouse Today |
| What's Happening |
| Frank's PCR Appeal Back On Track On September 15, 2008, the Court of Appeals (through its Appellate Commissioner) granted reconsideration, and granted the motion for leave to pursue a late appeal. This means that Frank's PCR appeal is back on track. The appeal relates only to Frank's sentence. The following is a recap of what has transpired since the appeal was argued by David Celuch in June of 2005. In June of 2005, Portland attorney David Celuch argued to the Oregon State Court of Appeals that Frank Gable's trial lawyers, Bob Abel and John Storkel, were ineffective on several grounds, including not adequately investigating evidence that Tim Natividad killed Michael Francke. The argument contended that the post-conviction court erred in denying relief, raising six assignments of error. Of those assignments, the judges appeared to focus most of their attention on Celuch's argument that Frank didn't waive his right to object to having the jury consider the no-parole sentence. The law allowing for that sentence was passed after Michael Francke was killed. Courts generally rule that handing down more severe penalties that did not exist when a crime was committed violate constitutional protections against ex post-facto penalties unless defendants waive their rights. Celuch said since the no-parole sentence didn't exist at the time of the murder, Frank should be resentenced to life with a possibility of parole. In January of 2006 the court released their opinion and rejected all but one of Frank's assignments (the opportunity to have a jury consider the no-parole sentence) and remanded the decision of whether or not Frank should be eligible to be resentenced back to the Marion County Circuit Court and Judge Frank Yraguen. Click here to read a copy of that decision Eleven months later, on Monday, 11/27/06, Judge Yraguen held court at 9am to address the motion once again. Frank testified by phone. On 12/5/06, the Judgment on Remand from the Court of Appeals was signed by Judge Yraguen denying Frank relief. Judgment was in favor for the defendant, the State of Oregon. Click here to view judgment On February 20, 2007, Frank’s lawyer, Ken Hadley, filed a notice of appeal from the judgment denying his petition for post-conviction relief entered on December 12, 2006. Realizing that he had not filed the notice of appeal within the proper time limits, Mr. Hadley filed a motion for leave to file a late notice of Appeal pursuant to ORS 138.071(4). By order dated March 20, 2007, the court denied appellant's motion for leave to file a late notice of appeal pursuant to ORS 138.071(4) on the ground that ORS 138.071(4) does not apply to post conviction relief cases and dismissed the appeal as untimely filed. Enter Portland attorney Harrison Latto, who petitioned the court for reconsideration on Frank’s behalf on the ground that legislation enacted during the Oregon Legislature's 2007 session amended ORS 138.650 to allow late filing of notices of appeal in post-conviction relief cases. Appellant argued that even though the legislation did not become effective until January 1, 2008, it applied to appeals that were pending on the effective date. By order dated April 29, 2008, the Commissioner determined that the legislation was not retroactive and, therefore, did not apply to this case, citing Rhodes vs Eckelman, 302 Or 245,728 P2d 527 (1986) (no evidence of intent that provision apply retroactively). Petitioner again petitioned on the ground that this case is distinguished from Rhodes because here, unlike in Rhodes, there is evidence that retroactive application was intended. The petition was granted on September 15, 2008. According to the court, the amendment to ORS 138.650 did not contain a retroactivity clause, however, unlike the legislation at issue in Rhodes, it was determined there is legislative history relating to the issue of retroactivity respecting the adoption of ORS 138.650. Testimony of the bill sponsor before both the House Judiciary Committee and the Senate Judiciary Committee showed that the amendment to ORS 138.650 was intended to apply to all appeals then pending before the Court of Appeals. Frank’s petition for reconsideration was granted, and the court’s order of dismissal dated March 20, 2007 has been vacated. The appeal is reinstated. Click here to view a copy of the Court of Appeals' order It will most likely take a year before this appeal is heard and a decision rendered. If Frank wins it will probably take an additional year or more to prepare for the new trial where a new jury would be convened to decide only on the penalty phase…death or life with the possibility for parole. This would not by any means be a trial to once again determine guilt or innocence. As I’ve said many times before, Frank’s federal appellate process is on hold until this lingering issue in the state court is resolved, and the best that can come from it is he gets a new sentence with the possibility of parole. A parole straight to a federal prison to serve his other 6-8 year sentence which runs consecutive to his murder conviction. Frank didn't have to pursue this appeal. His other claims have already been preserved for federal habeas review, so he could have dropped this appeal and gone right to federal court where most people feel he has the best chance of getting his murder conviction overturned. Presumably, Frank feels that life with the possibility of parole (even to some other sentence) is preferable to life without the possibility of parole. And so it goes… |