The Oregon Department of Justice has notified U.S. District Court officials that the agency will appeal a recent opinion from the 9th U.S. Circuit Court of Appeals that upheld a lower court decision to release Frank Gable from prison.
“We plan to seek review by the U.S. Supreme Court,” DOJ spokeswoman Kristina Edmunson says. “The deadline for filing that request is in late December.”The Oregonian first reported the new development.
Gable was convicted in 1991 of the 1989 murder of Michael Francke, director of the Oregon Department of Corrections. Police never found a murder weapon and Gable insisted he was innocent but was sentenced to life in prison without the possibility of parole. Having exhausted all avenues of appeal in the state court system, Gable appealed his conviction in federal court beginning in 2014, represented by Nell Brown, a federal public defender.
In 2019, federal magistrate Judge John V. Acosta ruled on Gable’s appeal in U.S. District Court in Portland, finding that because nearly all of the witnesses against Gable had recanted and because the trial judge did not allow testimony about the confession of another suspect, Johnny Crouse, Gable should be retried or freed from prison.
He was released in June 2019. But the Oregon Department of Justice, which represents the state of Oregon in appellate court, appealed Acosta’s ruling to the 9th Circuit Court of Appeals.
In September, a three-judge panel at the 9th Circuit upheld Acosta’s ruling, writing “it is more likely than not that no reasonable juror would have convicted Gable in light of the new evidence.”
The Oregon DOJ chose not to exercise its right to appeal that three-judge ruling to the entire 9th Circuit Court of Appeals, which raised the possibility that Gable’s legal odyssey was over.
But today, DOJ showed it will make one last effort to preserve Gable’s conviction.
The Federal Public Defender’s office responded to that decision with a statement.
“We are surprised and disappointed that the Oregon Department of Justice is trying to revive a conviction that four federal judges have now found to be unjust,” the statement said.
“As the Ninth Circuit recognized here, the state’s case against Mr. Gable was tainted by ‘significant investigative misconduct,’ and the trial court unconstitutionally excluded another man’s confession to the same crime. We hope that the Department of Justice will reconsider its position and recognize that Mr. Gable’s conviction does not meet our community’s standards for integrity and fairness.”
Francke’s family has long believed Gable was wrongly convicted, a premise championed by former Oregonian and Portland Tribune columnist Phil Stanford.
E. Patrick Francke and Kevin Francke said in a statement they are “disappointed and disgusted at this latest misguided decision by the attorney general.”
Gable’s defense team will have 30 days from when DOJ submits its plea for review to submit a brief arguing why the U.S. Supreme Court should not hear DOJ’s appeal.