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Federal Magistrate Judge John V. Acosta today prohibited Marion County from retrying Frank Gable for the 1989 murder of Oregon Department of Corrections director Michael Francke.
That means Gable is free from any possibility of prosecution in the case, one of the most notorious murders in Oregon history. The Oregonian first reported Acosta’s ruling.
A Marion County jury convicted Gable, then a low-level Salem drug dealer, in 1991 and sentenced him to life in prison. Many people, perhaps most notably then-Oregonian columnist Phil Stanford, questioned the conviction from the outset because police never found a weapon or an eyewitness to the murder, nor could they provide a compelling argument for a potential motive.
Today’s ruling comes on the heels of the U.S. Supreme Count’s decision last month to turn down the state of Oregon’s appeal of a 9th Circuit Court of Appeals ruling upholding Acosta’s 2019 finding in U.S District Court that Gable was wrongfully convicted.
“The trial court erred in excluding evidence of third-party guilt and that trial counsel provided ineffective assistance in failing to assert Gable’s federal due process rights in the face of the trial,” Acosta wrote in his 2019 decision in which he ordered Gable released.
Acosta lambasted Marion County Circuit Court in 2019 for excluding a confession from a man named John Crouse and also noted that federal public defender Nell Brown and her team had reinterviewed witnesses who testified against Gable and found that seven of eight of them had recanted their stories. A federal appeals court panel upheld his ruling last year.
The appeals panel’s decision highlighted the witnesses’ recantations. “They attribute their false testimony to significant investigative misconduct, which the State—remarkably—does not dispute,” the decision said.
When the Supreme Court declined to hear the state’s appeal last month, that left open the slim possibility that the Marion County District Attorney’s Office might seek to retry Gable. That would have been a tall order, given the passage of time and Acosta’s evisceration of the previous case against Gable.
Today, Acosta told Marion County in a filing that another prosecution was off the table, The Oregonian reported, writing in a court filing the state is “BARRED from rearresting, reindicting or retrying [Gable] for the murder of Michael Francke.”
Francke’s brothers, E. Patrick and Kevin Francke, have long advocated for Gable’s release, and they applauded Acosta’s latest move.
“We are most pleased that Mike Francke’s legacy will not be tainted by the wrongful conviction of an innocent man,” Kevin Francke said in a statement. “One victim was one two many; two was a travesty. We pray that although it has cost Frank 33 years of hell to get here, that he and Rain [Gable’s wife] will enjoy many, many years of peaceful freedom and a wealth of happiness to make up for it.”