PORTLAND, Ore. (PORTLAND TRIBUNE) — The Oregon Department of Justice has appealed the federal court ruling that reversed the conviction of petty Salem criminal Frank Gable for killing Oregon Corrections Director Michael Francke in 1989.
Oregon U.S. District Magistrate Judge John Acosta ruled on April 18 that Gable is probably innocent and did not receive a fair trial in Marion County Circuit Court. He ordered that Gable be given a new or trial or released within 90 days. The state justice department had 30 days to appeal the ruling to the U.S. Ninth Circuit Court of Appeals.
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.
In its appeal, justice department lawyers argued that Acosta’s ruling was wrong and did not meet court standards for such reversals. They said Gable’s lawyers failed to establish his innocence and dismissed the importance of the other confession and the recantations.
“Assessing all of the evidence presented at trial, and all of the new evidence, a reasonable juror could still find petitioner guilty of Francke’s murder,” the justice department said.
It is unclear whether Gable will be released during the appeal. The state filing concedes that court rules require prisoners whose convictions have been reversed be released during appeals, but argues the Ninth Circuit Court of Appeals should consider other factors, “including the flight risk of the prisoner and the danger to the public.”
The Federal Public Defenders Office that represented Gable in his federal appeal was expected to ask Acosta to release Gable if his ruling was subsequently appealed.
Oregon’s Federal Public Defender’s Office, which represented Gable, is expected to seek Gable’s release pending the state’s appeal.
“We’re disappointed the state chose to appeal and prolong the case,” Oregon public defender Lisa Haytold the Oregonian. “We’re confident Judge Acosta’s reasoned decision will withstand appellate scrutiny.”
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Francke’s brother Kevin and Patrick were upset by the state’s decision. They have long believed Gable is innocent.
“That the DOJ has opted to appeal Judge Acosta’s decision is galling and baffling,” Kevin wrote in an email to the state justice department. “Hasn’t an innocent man’s life been sacrificed enough? And the millions upon millions of taxpayer dollars fabricating this sham investigation?”
Kevin also questioned why the family wasn’t consulted before the decision to appeal was made, as required by Oregon Victims Rights laws.
Former Oregonian and Portland Tribune columnist Phil Stanford, who has covered the case from the very beginning, as also dismayed by the appeal.
“Considering the fact that the case against Gable has been completely demolished, if they don’t release Gable immediately this is an act of gratuitous, politically motivated cruelty,” said Stanford, who is working on a podcast on the case for the I Heart Radio network.
Stanford also said Neil Goldschmidt, who was governor at the time of the killing, hindered a full investigation into the case because he had previously sexually abused a young girl as mayor of Portland, and was afraid that would be discovered.
According to Stanford, public documents previously reported by the Portland Tribune show that Goldschmidt resisted efforts by the FBI to enter the investigation. Former state Sen. Jim Hill has also accused Goldschmidt of trying to limit his efforts to investigate the Francke case.
