16. Waiting for the other shoe to drop

It’s May 1991 and Gable’s trial is about to begin. But for all the doubts he has about the investigation, Kevin still hasn’t made up his mind about whether Gable is guilty or not.

“Trust us, Kevin” says Sarah Moore, the lead prosecutor for the Marion County DA’s office. “Once you hear all the evidence, you’ll be as convinced of his guilt as we are.”

And so for the next two months, Kevin will sit through the trial, sometimes in the courtroom and sometimes in the press room where the TV stations were monitoring the proceedings – waiting, as he puts it now, for the other shoe to drop. Surely, he thought, the prosecution must have something they haven’t revealed yet.

Since there’s absolutely no physical evidence linking Gable to the crime scene, the state’s case will rely on the testimony of several so-called material witnesses – most all of them jailbirds or ex-cons with serious charges hanging over their heads – claiming that Gable confessed to them about committing the murder or said something else incriminating. As we know now, virtually all of them have recanted.

The lynchpin of their case, however, would be two supposed eyewitnesses: A frightened, runaway girl named Jodie Swearingen and a career criminal by the name of Cappie “Shorty” Harden.

Jodie had come to the attention of the state police several months earlier when she started telling her counselors at Hillcrest, the state’s detention center for girls, she was afraid her boyfriend had been involved in the Francke murder. The counselors passed this on to the Francke Task Force and soon she was being interviewed by the state police.

In fact, as we know now ­– and the state police could easily have figured out then – the sometime boyfriend she was fretting about was actually a young Salem gangster, Tim Natividad, who, according to the word on the street then, could actually have been involved in the killing. Most recently she has said she was there at the Dome Building with Natividad on the night of the murder.

Even now it’s impossible to know for sure what Jodie actually saw or didn’t see that night. Whether she was there or not, or whether as a scared teenager – she was just sixteen at the time – she was just seeking attention. About the only thing we be certain of is that if she was at the Dome Building on the night of the murder, she couldn’t have been there with Frank Gable, because as is now clear, she hadn’t even met Gable when the murder occurred.

Lead prosecutor Sarah Moore, who told Kevin, “Trust us. Once you heard the evidence you’ll be as convinced of his guilt as we are.” Photo by KOIN TV.

By this time, however, the Francke Task Force had Frank Gable firmly in their sights, and Jodie quickly figured out what they wanted her to say. In fact, one of the first of her several stories to the police was that Shorty drove her and Gable to the Dome Building that night to steal “snitch papers” from Francke’s car.

Of course when the police confronted Shorty with this scenario he wasn’t particularly pleased because it made him look like, well, and accessory to murder.

So in Jodie’s next version, it was Gable who drove Jodie to the Dome Building to burglarize Francke’s car. And then, at some point, Jodie decided she wanted to leave and called Shorty to come pick her up ­– which is how the two of them happened to be sitting there in Shorty’s car in the Dome Building parking lot when the murder took place.

Never mind that in those pre-cell phone days, the state police could never find a pay phone (or any other phone for that matter) that Jody could have used to call Shorty.

Or that despite the prosecution’s help in arranging for Jodie and Shorty to get together before their grand jury appearances, they never did manage to get their stories quite straight.

What the record does show, however, is that in order to get the story they wanted out of Jodie it took the state police 23 polygraph exams and numerous interrogations, some lasting from morning till late at night.

After one such session, she was spitting up blood. At another, the polygraph operator shouted that if he didn’t get the right answer this time he’d “flush her down the toilet like a turd.”

After the grand jury, Jodie couldn’t take it anymore. She told  Gable’s defense investigators her entire story was a big lie and tried to hide out in Colorado. However she was quickly found and brought back to Oregon and held in jail pending Gable’s trial – leaving Shorty Harden, of course, as the state’s only eyewitness.

And as far as Kevin is concerned, what it all comes down to is whether the state can explain a huge discrepancy between the testimony of their one-and-only eyewitness, Shorty Harden, and that of the maintenance man, Wayne Hunsaker. If they can’t, their case doesn’t make any sense.

Hunsaker, who would have been coming out of the Dome Building at about the time of the murder, said he saw two men – the state assumes they were Francke and Gable – facing each other in the parking lot area. He heard an oomph sound and one of the men turned and walked back to the Dome Building while the other ran away across the Dome Building grounds.

What Shorty will testify to is that he was sitting in his car with Jodie a short way off in the parking lot when he heard someone shouting, “Hey, what’re you doing in my car?” Then he saw Gable emerge from the car and stab Francke – at which point he started up his own car and got out of there as fast as he could.

But the problem here, as anyone familiar with the case would have to realize, is that if that’s what Hunsaker saw – and there’s really no reason to doubt his honesty (although there are certainly questions about who and what he actually witnessed) – then Shorty’s car, which was supposedly parked some thirty or forty feet beyond the two men, would have been directly in his line of sight.

And Hunsaker simply didn’t see Shorty’s car sitting there in the parking lot, much less speeding away from the scene. Or for that matter, hear anyone shout “What’re you doing in my car?”

If Sarah Moore can reconcile those two stories, Kevin is ready to concede the state might have a case. But of course, she doesn’t even make a pass at it.

And when it comes time for Gable’s lawyer, Bob Abel, to question Shorty and Hunsaker about the discrepancy between their testimonies, he is either incapable or unwilling to do so.

As should probably be noted here, Abel was surely the worst possible lawyer who could have been assigned to try the most important criminal case in recent Oregon history. Known among the Salem law fraternity as a barely competent drunk, at the time he was appointed he didn’t even have an office. His practice was going down the tubes. His girlfriend told me that during the Gable trial he was drinking half a gallon of vodka a day. With Squirt mixers, no less.

There is, in fact, good reason to believe that’s exactly why he was appointed by the presiding judge, and his old bridge-playing buddy, Greg West, in the first place. As Abel’s chief investigator Tom McCallum recently told me, Abel was reminded more than once by West, in the privacy of the judge’s chambers, not to get into “this corruption stuff.”

And so it is hardly surprising that when it came time for the defense to present its case, Abel couldn’t figure out how to introduce Johnny Crouse, who of course had already confessed to the murder, into the proceedings. Or for that matter, didn’t even try to bring up Tim Natividad or Scott McAlister.

Even then, it should have been possible for the defense to put the lie to Shorty Harden’s story about witnessing the murder in the company the young runaway Jodie Swearingen, who was now a witness for the defense.

However, when the lead prosecutor, Sarah Moore, cross-examined Jodie she simply read back to Jodie, sentence by sentence, the falsehoods she’d told the grand jury.

And to each, Jodie would respond, “But that’s a lie.” Then Sarah Moore would read another one. To which Jodie would say, “That’s a lie too.”

To the jury it undoubtedly sounded like the prosecution was catching Jodie in a series of lies when exactly the opposite was taking place. When it came their turn, all Abel or his assistant counsel John Storkel had to do was explain that to the jury that the lies Jodie was trying to disclaim were those that had been forced upon her by the state police investigators, and now she was trying to tell the truth.

Instead, when Sarah Moore completed her cross-examination, they said they had no further questions and the trial was recessed for lunch.

Gable would of course be convicted on what two federal appeals courts have since ruled was fabricated evidence. And then, having obtained the conviction, and knowing full well that they’d made up every bit of evidence against him, the prosecutors tried to kill him. There’s no other good way to say it.

They asked for the death penalty – and came within two votes (the jury voted 10-2) of getting it, too.

Dale Penn, the Marion County district attorney who supervised the cover-up in the Michael Francke murder investigation and the railroading of Frank Gable.

A month or so after the trial, Kevin asked Gable’s new lawyer, Karen Steele, if she could set up a phone conversation with her client. And when Frank came on the phone, this is what he said:

He’d spent every day in court, he said, waiting for the other shoe to drop. Waiting to hear the evidence promised him by Sarah Moore that would prove, once and for all, that Gable had indeed murdered his brother.

And the shoe never dropped, he said. In fact, as the trial went on it became clearer and clearer that the state had no case at all against Gable.

“It was a bullshit trial and a bullshit verdict,” Kevin said. “And I’m going to do everything in my power to get you out.”

“Thank you,” said Frank. “I swear to God, I didn’t kill your brother and I don’t know who did. I don’t know anything about the murder.”

“But I want you to know one thing,” Kevin said. “If I ever find anything that tips the balance against you, I’m going to do everything I can to see that you burn in hell.”

“I understand,” said Frank. “And if you find one thing, bring it on. But I know you won’t because I didn’t do anything.”

Which, you might say, is when the actual investigation of Michael Francke’s murder – culminating of course in the federal public defender’s brilliant petition that would lead to Frank Gable’s exoneration – begins.