In the wake of last week’s U.S. Supreme Court ruling denying Oregon’s petition to reinstate Frank Gable’s conviction in the 1989 killing of Oregon’s prison chief, a federal magistrate on Monday ordered the state to decide within 10 days whether to retry Gable.
“If the state does not retry Mr. Gable within 10 days of today, you are done with him,” U.S. Magistrate Judge John V. Acosta told the state’s lawyer.
Oregon Solicitor General Benjamin Gutman said the Marion County District Attorney’s Office doesn’t plan to retry or reindict Gable within that deadline but wants to reserve the right to reinvestigate the case and rearrest or reindict him in the future.
“I can honestly say that I do not understand how the state thinks they can do both,” the judge responded. “This wasn’t a menu option.”
But Acosta invited the state, Gable’s lawyer and the Marion County district attorney to submit legal briefs to him on whether the state holds any authority to pursue a future prosecution of Gable in the fatal stabbing of 42-year-old Michael Francke in Salem. The judge said he had “serious doubts” that it does.
Regardless, at the urging of Gable’s lawyer, the judge ordered the state not to rearrest Gable, now 63, who remains out of custody in Kansas on federal supervision. Gable’s supervision will continue until a further court order, Acosta said.
He said he was perplexed that the state and the district attorney’s office haven’t made a final decision.
“I’m at a loss after a full four years, the state doesn’t know what it’s going to do,” Acosta said.
He was referring to the four years that have lapsed as appeals have played out since his stunning ruling in April 2019, when he found that no reasonable juror would have convicted Gable in light of another man’s multiple confessions to Francke’s killing and because nearly all the witnesses in the case have recanted since the trial. The confessions had been excluded from Gable’s initial trial.
Acosta also found that Gable’s conviction resulted from improper interrogation of witnesses by investigators and flawed polygraphs that further shaped witness statements to police.
He then ordered Gable to be released or retried within 90 days.
Gable left prison on June 28, 2019, after nearly 30 years. He had been sentenced to life without the possibility of parole in the killing of Francke. Francke bled to death from stab wounds and was found dead on the north porch of the Dome Building where he worked. The door of his nearby state-issued Pontiac stood open, its dome light found on.
Acosta eventually put his 90-day order to retry Gable on hold while the state’s appeals were pending.
The state took Acosta’s ruling to the 9th U.S. Circuit Court of Appeals, which upheld it in late September, and then unsuccessfully petitioned the U.S. Supreme Court to intervene. The state had argued, in part, that the other man’s confession was unreliable because he had changed his account multiple times.
Assistant Federal Public Defender Nell Brown had asked the judge to lift any federal supervision of Gable, dismiss his original indictment in the Francke killing and grant him unconditional release unless the state obtained what she called a “constitutional” indictment that’s not based on false testimony or tainted evidence.
“Mr. Gable shouldn’t live in fear the state is going to rearrest him,” Brown argued.
The idea that he could be “snatched” by the state and rearrested at any time “would be a second miscarriage of justice,” she said.
The time Gable has already spent in prison essentially equals the term he could receive if he were to be retried and convicted — plus he has spent four years on federal supervised release, she said.
Gable has a job, has “established himself” in the community and likes his role as grandfather to his wife’s grandchildren, Brown said.
Acosta said he was surprised no one from the district attorney’s office attended Monday’s status hearing and invited the district attorney to weigh in on the question whether it has any authority to pursue a new indictment against Gable. If the district attorney’s office doesn’t provide its input, “that would be a bit curious and confusing,” Acosta said.
The judge also directed Gable’s lawyer to work with federal prosecutors to resolve outstanding questions about a separate federal conviction against Gable in the case.
Gable’s lawyers have urged the government to vacate the nearly nine-year federal sentence issued after Gable was convicted in 1991 of being a felon in possession of a firearm and sentenced as a career criminal.
Acosta said Gable likely already fulfilled his obligations in the gun case and that he also had significant doubt that the sentence is valid anymore.
Kevin Francke, Michael Francke’s younger brother who has been a staunch defender of Gable and his innocence, attended the latest hearing. He continues to believe that his brother Michael Francke had uncovered corruption in the state prison system and was killed by conspirators to silence him.
After the hearing, Kevin Francke criticized the state for continuing to string Gable along and for not letting him free.
“For (expletive’s) sake, they do not have a case, ” he said. “They owe Frank an apology.”
— Maxine Bernstein
Email mbernstein@oregonian.com; 503-221-8212
Follow on Twitter @maxoregonian https://twitter.com/maxoregonian
Our journalism needs your support. Please become a subscriber today at OregonLive.com/subscribe
