The Oregon Department of Justice today filed a petition with the U.S. Supreme Court seeking the reversal or at least a review of a lower court’s order releasing Frank Gable, who was convicted of one of the most notorious crimes in Oregon history, only to be set free three years ago.
The 191-page petition argues the lower federal courts erred in releasing Gable.
Gable was convicted of the 1989 murder of Michael Francke, director of the Oregon Department of Corrections. Gable denied involvement in Francke’s fatal stabbing, which occurred in a well-lit parking lot outside DOC headquarters in Salem.
Police never found the murder weapon, and it took them 14 months to arrest Gable, then a low-level Salem drug dealer. A jury convicted him in 1991, and he was sentenced to life without the possibility of parole.
Gable spent years appealing his conviction in the state court system, to no avail.
He then appealed his conviction in federal court beginning in 2014, represented by Nell Brown, a Portland 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. (Crouse died prior to Acosta’s examination of the case.)
Gable walked out of prison in June 2019 after nearly three decades behind bars. But the Oregon DOJ, which represents the state of Oregon in appellate court, appealed Acosta’s ruling to the 9th U.S. 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.”
Today’s filing was expected. In October, Oregon DOJ said it would appeal Gable’s release to the country’s highest court.
That decision dismayed Gable’s legal team. “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,” they said at the time.
Francke’s brothers, E. Patrick and Kevin Francke, long ago came to believe Gable did not murder their brother and have been outspoken in their opposition to DOJ’s continuing to press for upholding Gable’s conviction.
In his petition today, Oregon Solicitor General Benjamin Gutman said the Supreme Court should either reverse the 9th Circuit or, at a minimum, hear arguments on whether “recantations by trial witnesses and a recanted third-party confession” were sufficient to spring Gable.
“This Court should grant the petition for certiorari and summarily reverse the Ninth Circuit,” Gutman wrote. “Alternatively, the Court should grant the petition and set the case for oral argument.”