They signed into jail as "friends"

Now that the patsy in the Michael Francke murder case has been exonerated by two federal courts, and even the Oregon AG’s office acknowledges that he’s innocent, the big legal question still hanging in the air, like a cluster bomb waiting to explode, is how long it’ll take for the dirty cops who railroaded Frank Gable in the first place to get what’s coming to them.

And in fact that day reckoning may not be so far off. A Chicago law firm, Loevy+Loevy, that specializes in this sort of thing, is currently suing a passel of twenty-four former Oregon State and Salem police officers, on Gable’s behalf, for fabricating every bit of the evidence that was used to convict him.

Which, it should be noted, is exactly what the Ninth Circuit Court of Appeals cited in its ruling exonerating him: “Significant investigative misconduct,” is how they put it, “which the State – remarkably – does not dispute.” And that alone should give the cops, and of course the state lawyers who will have to represent them, the shivering fits.

But just in case the folks at Loevy+Loevy are interested in adding an additional legal bomblet to their lawsuit – which contends, basically, that the cops engaged in a conspiracy to violate Gable’s constitutional rights – I have a suggestion:

What seems clear to me, in fact, is that not only did the state cops (and of course the prosecutors in the Marion County DA’s office) manufacture all the evidence against Gable, but there is also a very provable case to be made that they knew early on that Gable had an airtight alibi for the night of the murder – and of course went ahead and railroaded him anyway.

And if that doesn’t scream conspiracy, I don’t know what does.

When Gable’s case went to trial in the spring of 1991 there was still a great deal of confusion, especially in Gable’s mind, over what he’d been doing that night. During the trial, the prosecution made a big deal of his floundering attempts to figure it out, and of course his inept and dependably drunk defense attorney, Bob Abel, did nothing to clear matters up either.

Part of the problem, of course, was that the murder occurred on a Tuesday, the night of January 17, 1989. Francke’s body was found just after midnight the following day, and the first press reports didn’t appear until January 19, a Thursday. So most people, at least those who weren’t involved themselves, which Gable certainly wasn’t, weren’t really sure when it occurred.

In addition, Gable wasn’t questioned about it for a good eight months after the murder, and who among us can remember what they were doing on an otherwise unremarkable night eight months ago? Especially if one was mostly stoned at the time anyway,

But in fact Gable did have an alibi. When the murder took place – at about 7 p.m., on the night of January 17, on state capitol grounds, in front of the Dome Building where Francke worked – Gable was across town at his apartment doing a drug deal.

And in the brilliant habeas corpus petition that would eventually lead to Gable’s exoneration, his federal public defender Nell Brown slam-dunk proved it, using phone records, an eviction notice that was delivered to the Gables on the morning of January 18, and finally the testimony of three of the four participants.

Besides Gable, who was supposed to be the middle man in the deal, there was a young tweaker named Kevin Walker who brought the product, a quarter-pound of meth, up from Corvallis. Phone records show he called Gable a couple of times that evening to set it up. And the third person involved was a middle-level Salem meth dealer by the name of Robert Cornett, who was there to make the buy.

Once Gable went to prison and started reading the police reports in his case, it all fell into place for him. If he and his wife received that eviction notice – the neighbors had complained about too much noise and vehicular traffic – on the morning of January 18^th, then it was finally clear what he’d been doing the night before.

In the course of their investigation some years later, Nell Brown and her sidekick Wendy Kunkle got Walker and Cornett – grudgingly in his case – to confirm that they’d been with Gable at his apartment on the night of the murder.

So, for what it’s worth, you might say that Nell Brown proved Gable innocent twice. First by systematically demonstrating that every bit of the evidence against him was fabricated by the cops and prosecutors. And second, by proving that he had an airtight alibi.

But here’s my point: If the federal public defender could figure it out – from phone records, an eviction notice, and interviews with the participants – don’t you think the state police investigators could too?

Although most of them probably weren’t quite as smart as the Harvard Law School educated Brown, a few of them – and I’m thinking particularly of the ex-undercover narcotics cop Dennis O’Donnell who was running the investigation by this time – were certainly at least as crafty.

First of all, don’t you think that one of the first things the state police would do, once they had Gable in their sights, would be to check his phone records for the time around the murder?

Why, of course they did. That’s how they came up with the Kevin Walker, who called Gable twice that day. In Walker’s first sit-down with the cops he told them the calls were to set up a dope deal.

Once they started accusing him of being an accessory to the murder – after all, wasn’t he with Gable the night of the murder? – of course he changed his story and agreed to testify that Gable confessed to him he committed the murder. Walker, it should be noted, was actually one of the first of the so-called material witnesses to suffer pangs of conscience and recant.

And did the cops also know about the January 18 eviction notice, which most certainly would have pinpointed Gable’s whereabouts on that fateful night?

Why, yes, as a matter of fact, they knew that too. Police records show that on September 26, 1989, Officer William Pierce of the state police picked up a copy of the eviction notice from the Gables’ landlady.

But it’s Robert Cornett, who has since admitted he was there at Gable’s apartment that night to purchase the meth, who provides us with the most intriguing story of all.

On January 28, 1990, Steve Jackson (who undoubtedly did the best job of reporting on the Francke case) wrote in the Salem Statesman-Journal that Cornett, who at that time was facing many years in prison after getting busted with two pounds of meth, had “struck a deal Jan. 10 with federal prosecutors in exchange for information about the Francke killing.”

Jackson’s news break was at first confirmed by the Justice Department lawyer who worked the case, then a day later denied by the Marion County DA Dale Penn and even the U.S. Attorney Charles Turner. Then denied again by the same Justice Department prosecutor who had earlier confirmed it.

It just didn’t make sense. Not then, because in those pre-trial days no one except those on the inside of the investigation knew what was actually going on. And not after the trial either, because Cornett was never called to testify.

Yet Cornett obviously got a deal. When Kevin Francke, the murdered man’s brother, tracked down Cornett’s court records some years ago, there on Cornett’s plea agreement, in Cornett’s own handwriting, was his acknowledgement that the government would be giving him a “dep” [short for “departure” or a reduction in sentence] “if def [meaning himself, the defendant] cooperates in Franke [that’s how he spelled it] case pursuant to letter attached.”

Followed by an official notice that the letter would be sealed and placed in a vault as document #41 – which, it should be pointed out, after all these years, no one has been able to find.

In fact, it seems pretty clear that from the beginning there has been a concerted effort to conceal the records in Cornett’s case. When Kevin first started looking for them shortly after the trial, the microfilm records of Cornett’s case – even the case number – had disappeared from the Lane Federal Office Building where Cornett cut his plea deal, and it was only though a stroke of luck that he found them at all.

The Eugene federal building where Cornett made his plea agreement and where, through sheer luck, Kevin Francke was able to track down some but not all of Cornett’s court records. How Kevin got them is a story in itself, but it’ll have to wait for the book I’m writing on the case.

When I finally got Cornett, who is now a successful businessman in Salem with a groomed twelve-acre estate just south of town, to sit down and talk to me, he said he’d never signed any such agreement.

When I told him that, in fact, Kevin had obtained a copy of it, he said that if that was so, the handwritten statement had to be a forgery.

And certainly, he said, he had no memory of what might have been discussed on October 27, 1989 – which was about a month after Officer Pierce picked up a copy of the eviction notice and a month or so before Cornett took the plea in his meth case – when, as the sign-in records show, he was visited in prison by the two lead state police investigators, Loren Glover and Ken Pecyna, signing in not as cops but “friends.” Of course there is no police report of the visit.

Some thirty-five years later we still don’t know what was in the plea bargain letter, which was then sealed and placed in a vault that no one seems to knows anything about.

What we know for certain, though, is that the only thing Cornett had to tell them about the Francke murder was that Gable couldn’t have done it because he was doing a drug deal with him at the time.

And one more thing for sure: If the state cops and Marion County prosecutors were corrupt enough to fabricate every bit of evidence against Gable, then they were surely corrupt enough to suppress it as well.