PORTLAND, Ore. (PORTLAND TRIBUNE) — The convicted murderer of Oregon Department of Corrections Director Michael Francke could be released before his next appeal hearing.

Oregon U.S. District Magistrate Court Judge John Acosta has ruled that Frank Gable is probably innocent and did not receive a fair trial when he was convicted of killing Francke in 1991.

Although the Oregon Department of Justice is appealing the ruling, Gable’s federal public defenders filed a motion on Friday, May 31, requesting Gable be released before the appeal is heard before the U.S. 9th Circuit Court of Appeal. The filing says the state justice department does not oppose the request, provided Gable comply with certain conditions during his release.

“Mr. Gable has served nearly thirty years in prison for a conviction that is, at worst, the wrongful conviction of an innocent man, and, at best, the product of a trial rife with highly suspect evidence and marred by errors of a constitutional magnitude,” reads the filing, which says the conditions are being negotiated.

The state justice department did not immediately respond to a request for comment.

Gable is being held in prison in Lansing, Kansas. He has legally changed his name to Franke Different-Cloud and married a woman named Rainy Storm, who lives in Kansas. According to the filing, she has agreed to have him live with her and would help him find a job.

Acosta has scheduled a hearing on the state’s appeal on July 9.

One issue to be resolved is how much time in federal custody Gable would still have to serve for a previous firearms conviction. Gable’s attorneys are requesting that he be released on parole under federal supervision.

Among other things, the May 31 filing says the state is not likely to win on appeal.

“The State has not made the required showing that it has a substantial likelihood of succeeding on appeal. This Court painstakingly reviewed the exhaustive briefing and voluminous evidence submitted by the parties in this case. This Court’s findings and its ultimate decision granting relief are amply supported by the record. The Court’s ninety-four page opinion explains in detail why it found reliable Mr. Gable’s evidence of innocence, including the recantation evidence, the expert scientific evidence, and another man’s confession to the crime,” the filing reads.

The Portland Tribune is a KOIN media partner.