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In a single paragraph released this morning, the U.S. Supreme Court rejected the state of Oregon’s last attempt to return Frank Gable to prison. The court denied the state’s petition to be heard on a 9th Circuit Court of Appeals ruling that upheld the release of Frank Gable, who was convicted in 1991 of the murder of Oregon Department of Corrections director Michael Francke.
Here’s the court’s pronouncement on Oregon’s appeal of the 9th Circuit’s ruling:
22-581 STEWARD, ACTING DIR., OR DOC V. GABLE, FRANK E. The motion of respondent for leave to proceed in forma pauperis is granted. The petition for a writ of certiorari is denied. Justice Kavanaugh would grant the petition for a writ of certiorari.
The key sentence is “The petition for a writ of certiorari is denied.”
That means the court declined to hear the state’s argument, a development first reported by The Oregonian. (Justice Brett Kavenaugh was willing to hear the case, but four justices must agree for a case to be heard.)
Roy Kaufmann, a spokesman for the Oregon Department of Justice, says the court’s decision means DOJ is finished with the case.
“This represents the end of the appeals that DOJ has been handling,” Kaufmann says. “There likely will be a short conference in the District Court in the next week or two to wrap matters up formally. The next step is for the DA to decide whether to retry Mr. Gable or to drop the charges.”
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 outside DOC headquarters in Salem.
Gable spent years appealing his conviction in the state courts, exhausting all remedies in that system.
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 seven of eight witnesses against Gable had recanted and because the trial judge excluded testimony about a confession from another suspect, Johnny Crouse, Gable should be retried or freed from prison. (Crouse died prior to Acosta’s review of the case.)
Gable walked free in June 2019 after nearly three decades behind bars. But the Oregon DOJ, which represents the state of Oregon in court, appealed Acosta’s ruling to the 9th U.S. Circuit Court of Appeals.
In September 2022, 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.”
In December, Oregon appealed to the U.S. Supreme Court, arguing Crouse’s confession was properly excluded because he told investigators a variety of different stories and that the witness recantations were irrelevant.
Michael Francke’s brothers, Kevin and E. Patrick, long ago came to believe that Gable did not kill their brother and have supported his release.
In a statement, E. Patrick Francke commended the work of Gable’s attorney in convincing the courts to set Gable free. “Nell Brown, federal public defender in Oregon, has triumphed at the Supreme Court,” Francke said. “Oregon must follow the federal appeals decision and either grant Frank Gable a new trial or set him free!”