Due Process Violated in Excluding Nonparty Confession

It seems like our office gets one call per week from people asking to “reopen a case” to have a judge consider a new witness statement confessing to a crime or to consider new evidence of innocence.  These types of calls may be legitimate and some may not be.  We listen to the caller and, quite often, have to decline the potential petition for a writ of habeas corpus.  In other cases, it is not so clear, as more investigation is needed to understand the facts and how the new evidence applies or is dispositive.

The following summary applies to this issue.  The summary is of a federal court ruling from the U.S. Ninth Circuit Court of Appeals, and while involving an Oregon criminal case, applies to California criminal cases because California is within the jurisdiction of the Ninth Circuit.  Its interpretation of federal law, in this case evidence law, controls California cases.

Under federal law, a late, but compelling claim of innocence based on new evidence is not barred by time if found to be “compelling.”  When “compelling,” or credible, it opens up the Schlup (Schlup v. Delo (1995) 513 U.S. 298) procedural “gateway through which a habeas petitioner must pass to have his otherwise barred constitutional claims considered on the merits.”  Schlup, supra, at 315 (citing Herrera v. Collins (1993) 506 U.S. 390).

To “pass through this gateway,” a petitioner must show that it is “more likely than not that no reasonable juror would have convicted him in light of the new evidence.”  Lee v. Lampert (9th Cir., 2011) 653 F. 3d 929, 938 (quoting Schlup, 513 U.S. at 327).  To do so, he must offer “new reliable evidence – with it be exculpatory scientific evidence, trustworthy eyewitness accounts, or critical physical evidence – that was not presented at trial.” Id. (quoting Schlup, 513 U.S. at 324). 

“New” evidence under Schlup does not actually have to be newly discovered.  See Larsen v. Soto (9th Cir. 2013) 742 F. 3d 1083, 1093-1094.  Rather, the court may assess any evidence that is “newly presented,” as in “not presented at trial.”  See Sistrunk v. Armenakis (9th Cir., 2002 ) 292 F. 3d 669, 672 n. 4.  This includes evidence “alleged to have been illegally admitted (but with due regard to any unreliability of it) and evidence tenably claimed to have been wrongly excluded or to have become available only after the trial.” Schlup, 513 U.S. at 328.

Schlup is demanding, and cases satisfying it have “typically involved dramatic new evidence of innocence.”  Larsen, supra, at 1095-1096.

The U.S. Ninth Circuit Court of Appeal recently ruled this much in the case of Frank Gable (Frank E. Gable v. Max Williams), who was convicted over 30 years ago in the killing of Oregon Department of Corrections Director Michael Francke in front of his office building.  Gable was arrested nearly a year after the murder and sentenced to life imprisonment without the possibility of parole.  Because no physical evidence was found, the State’s case rested exclusively on witness testimony.

Gable steadfastly maintained his innocence throughout. 

As the Ninth Circuit held, “the facts on appeal are extraordinary.  Since trial, nearly all the witnesses who directly implicated Gable have recanted.  Many explain that they intended to frame Gable after hearing he was a police informant.  They attribute their false testimony to significant investigative misconduct, which the State – remarkably – does not dispute.  As Gable’s expert explained, the investigators used widely discredited polygraph and interrogation techniques as a “psychological club” to elicit the statements against Gable.”

The prosecution then built their entire case on that tainted foundation.

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.

After exhausting his state court appeals, Gable filed a federal habeas petition, which the Ninth Circuit explained it could not hear unless the Schlup v. Delo “actual innocence” exception to procedural default applies.  Schlup v. Delo (1995) 513 U.S. 298.

The U.S. District Court excused Gable’s procedural default under Schlup and, on the merits, found that the state trial court violated Gable’s due process rights by excluding evidence of third party guilty under Chambers v. Mississippi (1973) 410 U.S. 284.  The district court granted Gable’s petition and vacated the conviction.

The People appealed and the Ninth Circuit affirmed the district court.  Costs were then assessed in Gable’s favor against the State of Oregon.

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