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The Oregon Department of Justice decided this week not to seek one avenue of appeal of a recent decision by a three-judge panel at the 9th U.S. Circuit Court of Appeals affirming a lower court’s decision to release Frank Gable from custody.
The DOJ had the option to appeal the three-judge panel’s ruling to the entire 9th Circuit appellate bench. As first reported by the Portland Tribune, the Oregon DOJ notified Gable’s attorney in an Oct. 12 email that it would not seek further review at the appellate court level.
The agency still has the option to appeal the Sept. 29 decision by the 9th Circuit to the U.S. Supreme Court. The deadline for that decision is Dec. 29.
A Marion County jury found Gable guilty in 1991 of the murder two years earlier of Michael Francke, the director of the Oregon Department of Corrections. Francke’s murder, which occurred in a well-lit parking lot outside his office, remains one of the most notorious crimes in recent Oregon history. Police never found the murder weapon, and it took 14 months for them to make an arrest in the case.
Gable, a low-level Salem criminal, was convicted on the testimony of a several witnesses in his circle. Most of them subsequently recanted, and the confession of another man, Johnny Crouse, was excluded from trial. Gable was sentenced to life in prison and exhausted all his state-level appeals before a federal public defender, Nell Brown, took his case. In 2016, after Brown and a team of investigators reexamined Gable’s conviction, she argued in U.S. District Court that the prosecution’s case was deeply flawed and had violated Gable’s due process rights.
U.S. Magistrate Judge John V. Acosta agreed and, in June 2019, ordered Gable released after nearly 30 years behind bars.
The Oregon DOJ appealed to the 9th Circuit, which affirmed Acosta’s ruling Sept. 29. “We hold that Gable’s due process rights were violated,” the three-judge panel wrote.
Michael Francke’s brothers, E. Patrick and Kevin Francke, have long believed Gable did not kill their brother, a belief kept alive for 30 years in part by the work of the former Oregonian and Portland Tribune columnist Phil Stanford.
In a statement, the Franckes applauded the DOJ’s decision to forgo further appeal to the 9th Circuit and urged the agency to abandon any further pursuit of Gable.
“We strongly recommend that the attorney general end this prosecution, which we consider a persecution of an innocent man, Frank Gable,” the Franckes said. (Disclosure: AG Ellen Rosenblum is married to the co-owner of WW’s parent company.)
They also appealed to Marion County District Attorney Paige Clarkson not to exercise her office’s option to retry Gable.
“We also pray that the Marion County DA will follow suit and that the terrible wrong that has made Frank Gable’s life a hell for these many years will be righted,” the Franckes said.