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Oregon To Appeal Decision Ordering Frank Gable's Release From Custody

A barbed wire fence encloses the Columbia County Jail yard in St. Helens, Ore., Saturday, March 30, 2019.
Bradley W. Parks
A barbed wire fence encloses the Columbia County Jail yard in St. Helens, Ore., Saturday, March 30, 2019.

The Oregon Department of Justice is challenging a judge's decision to release Frank Gable, the man convicted in the 1989 killing of Michael Francke, the head of the state Department of Corrections.

In court filings Wednesday, attorneys for the state's Justice Department issued a rebuttal to the federal judge's decision and said they plan to appeal an April ruling to the 9th Circuit Court of Appeals.

Last month, U.S. Magistrate Judge John Acosta ordered Gable's release within 90 days, unless the state decided to retry the case.

“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,” Acosta wrote in an April opinion, “particularly the newly presented evidence of witness recantations.”

The Marion County district attorney's office said Wednesday it is still reviewing Acosta's ruling and hasn't yet decided whether it will retry the case.

In their court filing Wednesday, attorneys for the state's Justice Department asked the 9th Circuit to put Gable's release on hold so the state doesn't have to pursue a possible retrial while the appeals court considers the case.

The attorneys also argued Acosta's ruling doesn't take into account all the testimony. 

"Not all of the witnesses or potential witnesses that the Court [Acosta] referred to as ‘recanting’ actually recanted, and the Opinion and Order does not account for the timing, context, or other nuances associated with the recantations or partial recantations," attorneys for the Justice Department argued.

Gable’s original conviction was highly controversial.

Prosecutors never found DNA evidence tying him to the scene of the murder.

More recently, the studied the case at the request of Gable’s lawyers and questioned how evidence and potential witnesses were handled. The group declined comment Wednesday.

But in their court filing Wednesday, attorneys with the Oregon Department of Justice said, apart from the witness recantation, there is other evidence in the record that shows Gable is guilty.

"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," attorneys for the Justice Department wrote. "Stated differently, the new recantation evidence did not establish that no reasonable juror could have determined that petitioner was guilty."

Federal public defender Lisa Hay is representing Frank Gable and isn't pleased with the state's decision to challenge the case to a higher court. 

“We are disappointed the state chose to appeal and prolong this case, but also confident that Judge Acosta’s carefully reasoned decision will withstand appellate scrutiny,” said Hay in a written statement. 

Copyright 2019 Oregon Public Broadcasting

Conrad Wilson is a reporter and producer covering criminal justice and legal affairs for OPB.