Even though two federal courts have overturned Frank Gable’s murder conviction, the Oregon Department of Justice is still preparing to argue that he killed Corrections Director Michael Francke. That will be the state's argument during Gable's state civil trial seeking compensation for being wrongfully convicted and imprisoned for nearly 30 years.
During a Sept. 24 status conference on Gable’s suit, Justice Department attorneys said they plan to enter transcripts from the criminal trial where he was convicted into the record. They said that after two federal courts ruled Gable did not receive a fair trial, in large part because multiple witnesses were coerced into lying about his involvement in the murder
That might not sound just, but the Justice Department is fighting most of those using a law passed by the 2022 Oregon Legislature to seek compensation for being wrongly convicted and imprisoned. The situation is so troubling that the Joint Oregon Senate and House Judiciary Committee has held two hearings on it this year, most recently just a few hours after Gable’s status conference.
During that hearing, committee co-chair Sen. Floyd Prozanski, D-Eugene, said the Justice Department's behavior is prompting the 2025 Oregon Legislature to rewrite the law to better guarantee compensation.
“Some of us went to Texas to see how their law was working and that really opened our eyes. The district attorneys there are willing to say a mistake was made. They have Victim Integrity Units there, and that’s what we’re going to look into creating," Prozanski said.
During the hearing, the Justice Department's Chief Trial Counsel Sheila Potter defended her agency’s responses by saying the 2022 law requires those whose conviction have been overturned must prove they are innocent and did not commit the crime for which they were convicted. That interpretation was challenged by Sen. Kim Thatcher, R-Keizer, the chief sponsor of the law, who said that was not the 2022 Legislature’s intent.
“It seems like you are only looking backward at the original evidence and not the new evidence (that resulted in the exoneration),” Thatcher said.
ODOJ Legislative Director Kimberly McCullough said the state cannot afford to pay compensation to everyone whose conviction is reversed, even on technicalities.
“If we were to award compensation in every single case where a case was reversed on appeal, we would be awarding compensation to a massive number of people,” McCullough said.
Also criticizing the Justice Department was Forensic Justice Project Executive Director Janis Puracal, an original supporter of the law. She said that two years after the law passed, only a handful of the claims have been resolved and no one has been fully compensated yet.
“DOJ is looking for loopholes in the law. It sees itself as the defender of the state, but the point was to compensate people who have been harmed,” Puracal said.
Also testifying was Earl Bain, a disabled Afghanistan war veteran who was wrongly convicted of sexually abusing his daughter in 2009 and sentenced to 75 years in prison. In 2020, then-Gov. Kate Brown granted Bain a full pardon based on actual innocence. He filed for compensation in 2022 but settled for a mere $340,000 in April of this year under what he described as severe pressure from the Justice Department.
“I settled for pennies on the dollar because they threatened to drag me and my daughter through the mud and I might end up with nothing. I don’t know why DOJ fought so hard. It’s not just me, it’s everyone,” Bain said.
The problem was first highlighted in a Dec. 20, 2023, story on the Huffington Post news website headlined, “Oregon Passed A Bill To Compensate The Wrongfully Convicted. Almost None Of Them Have Been Paid.” The judiciary committee held its first hearing on the problems with the rollout of the 2022 law on Feb. 29 of this year. Advocates for the wrongly convicted argued it was unrealistic for most of them to prove they are innocent if no one else has subsequently been convicted for the crimes, which hardly ever happens. And fighting over multiple pre-trial motions is time consuming and costly for those who have limited resources because they were wrongfully imprisoned.
By the Sept. 24 hearing, about 50 people have filed for compensation or said they intend to, but nothing has changed.
Gable was convicted of Francke’s 1989 murder around two years after it took place outside the Oregon Corrections Department headquarters. Oregon appeals courts upheld the conviction, but, after Gable was able to appeal it in federal court, Oregon U.S. District Magistrate John Acosta ruled that Gable had not received a fair trial, was likely innocent, and should be released or given a new trial within 90 days on April 18, 2019.
The Justice Department appealed the ruling to the U.S. 9th Circuit Court of Appeals, which upheld Acosta’s ruling, agreeing that much of the trial testimony against Gable was coerced and had been recanted by most of the witnesses against him.
“They attribute their false testimony to significant investigative misconduct, which the State — remarkably — does not dispute,” a three-judge appeals court panel wrote. “The state’s error was compounded by the trial court’s refusal to allow evidence that another man, John Crouse, had confessed multiple times to the murder. Crouse’s confession was particularly compelling because he gave details of the crime that were not publicly known.”
The Justice Department then appealed the rulings to the U.S. Supreme Court, which declined to consider it, sending the case back to Acosta to be finalized. He dismissed the conviction was prejudice, ruling Gable cannot be arrested or tried for the murder again in any court. Gable was released from prison during the federal appeals and currently lives in Kansas with his wife, Rain, where he has worked and stayed out of trouble.
Gable filed a civil suit in Marion County Circuit Court in November 2023 seeking $2 million in compensation. Ten months later, Gable’s attorneys and Justice Department officials are only now agreeing on which records from the state’s investigation and prosecution should be entered into evidence. During the Sept. 24 status conference, ODOJ attorneys said they intend to seek a jury trial which could take up to four weeks, during which one or more witnesses will read excerpts from Gable’s criminal trial transcript on the witness stand.
In the meantime, Gable’s attorneys have filed suit in federal court seeking damages against 24 law enforcement officials he claims framed him for Francke’s murder with no evidence. The suit, filed in the Eugene Division of the United States District Court for the District of Oregon, includes many claims made in Gable’s successful federal appeal of his conviction.
Among other things, the 28-page suit filed on July 11 alleges that law enforcement officials investigating Francke’s murder fabricated evidence against him and coerced associates to lie under oath about his involvement in the murder. That is consistent with what the two federal courts found in Gable’s successful appeal.
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