PORTLAND, Ore. (PORTLAND TRIBUNE) — Frank Gable’s future is still in the hands of John Acosta, the Oregon U.S. District Court magistrate judge who reversed his conviction of murdering state corrections director Michael Francke in 1989.
The Oregon Department of Justice appealed his ruling to the U.S. 9th Circuit Court of Appeals on Wednesday, March 15. It also asked Acosta to stay his order that Gable be granted a new trial or released within 90 days while the appeal is pending.
The justice department now says that Acosta has set oral arguments in the case for 9:30 a.m. on July 9 in his courtroom. Although details were not immediately available, they probably concern the request for the stay. If so, the federal public defenders who represent Gable are expected to ask that he be released during the appeal at that time.
After considering Gable’s federal appeal of his life-without-parole sentence, Acosta ruled that he is probably innocent. The state filed its appeal within the 30-day deadline to do so.
The federal defenders will oppose the appeal before the 9th Circuit Court. It could take one or two years to resolve, perhaps longer.
The state is already arguing that Gable should not be released, calling him dangerous and flight risk in their appeal.
“Nothing suggests that, in the many years since his convictions, petitioner has developed ties to any community in Oregon that would act as an incentive for him to remain to await a possible retrial,” the appeal reads.
If Gable is released, the state argues he should be placed under federal supervision for a previous federal firearms conviction.
The appeal and opposition to Gable’s release have angered Francke’s brothers Kevin and Patrick, who never believed he committed the crime. They were disappointed the state fought Gable’s appeals through the state court system before finally reaching the Oregon U.S. District Court.
“The surprise announcement of the decision by the Oregon Department of Justice to appeal the Federal Judge’s ruling does not really come as a shock to us; it represents a repetitive pattern that has gone on for thirty years, and seems to be the norm,” Kevin and Patrick said in a joint statement after the appeal was filed.
In the statement, the brothers call for Gable to be released during the appeal, saying, “Have they no shame? At the very least, Frank Gable should be released pending the long appeal process ahead. It is the only just and humane thing to do.”
The brothers also criticize the state for not consulting with them before deciding to appeal as required by Oregon Victims Rights laws.
“This time they have disregarded the State statutes as we understand them that require our involvement in the process,” they said.
In his ruling, Acosta said Gable’s lawyers made a showing of “actual innocence” in their appeal. He also cited the murder confession of another petty Salem criminal, Johnny Crouse, that was not allowed into evidence during Gable’s trials. Acosta also noted that almost all of the witnesses who testified against Gable changed have since recanted. And Acosta ruled investigators misused lie detector tests on many of those witnesses before they testified.
“Although the evidence presented at trial in 1991 resulted in a guilty verdict, the court concludes that it is more likely than not that no reasonable juror would find Gable guilty in light of the totality of all of the evidence uncovered since that time, particularly the newly presented evidence of witness recantations,” Acosta wrote.