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The federal judge who overturned the sentence of the man accused of killing the head of the corrections department must decide whether to stay his order and whether to release Gable while it is appealed.

CONTRIBUTED - An undated mug shot of Frank Gable.

Frank Gable's future is still in the hands of John Acosta, the Oregon U.S. District Court magistrate judge who reversed his conviction for murdering state corrections director Michael Francke in 1989.

The Oregon Department of Justice appealed the ruling to the U.S. 9th Circuit Court of Appeals on Wednesday, May 15. It also asked Acosta to stay his order that Gable be granted a new trial or released within 90 days of the April 18 ruling.

Acosta has set oral arguments on the request for the stay for 9:30 a.m. on July 9 in his courtroom. Federal public defenders who represent Gable are expected to ask that he be released during the appeal at that time.

After considering Gable's federal appeal of his life-without-parole sentence, Acosta ruled that he is probably innocent and did not receive a fair trial. The state filed its appeal within the 30-day deadline to do so.

The federal defenders will oppose the appeal before the 9th Circuit Court. It could take one or two years to resolve, perhaps longer.

The state is already arguing that Gable should not be released, calling him dangerous and a flight risk in their appeal.

"Nothing suggests that, in the many years since his convictions, petitioner has developed ties to any community in Oregon that would act as an incentive for him to remain to await a possible retrial,'' the appeal reads.

If Gable is released, the state argues he should be placed under federal supervision for a previous federal firearms conviction.

The appeal and opposition to Gable's release has angered Francke's brothers Kevin and Patrick, who never believed he committed the crime. They were disappointed the state fought Gable's appeals through the state court system before and after they finally reached the Oregon U.S. District Court.

"The surprise announcement of the decision by the Oregon Department of Justice to appeal the Federal Judge's ruling does not really come as a shock to us; it represents a repetitive pattern that has gone on for thirty years, and seems to be the norm," Kevin and Patrick said in a joint statement after the appeal was filed.

In the statement, the brothers call for Gable to be released during the appeal, saying, "Have they no shame? At the very least, Frank Gable should be released pending the long appeal process ahead. It is the only just and humane thing to do."

The brothers also criticize the state for not consulting with them before deciding to appeal as required by Oregon Victims Rights laws.

"This time they have disregarded the State statutes as we understand them that require our involvement in the process," they said.

In his ruling, Acosta said Gable's federal lawyers made a showing of "actual innocence'' in their appeal. He also cited the murder confession of another petty Salem criminal, Johnny Crouse, that was not allowed into evidence during Gable's trials. In addition, Acosta noted that almost all of the witnesses who testified against Gable changed have since recanted. And Acosta ruled investigators misused lie detector tests on many of those witnesses before they testified.

"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, particularly the newly presented evidence of witness recantations," Acosta wrote.

In its appeal, the state argued that Acosta's ruling was factually and legally wrong. Among other things, it said that Crouse had told numerous contradictory stories about Francke's killing and that not all trial witnesses had recanted their testimony.

Regardless of whether Gable is released, the appeal guarantees the case will remain in the news for years to come. It began as one of the most high-profile murders in state history and has continued generating headlines for nearly 30 years.

Michael Francke was found dead outside Oregon Department of Corrections headquarter on the morning of Jan. 17, 1989. He had been stabbed once in the heart near his car, which was still in the parking lot, and had bled to death before he could get back inside the Dome Building.

A state custodian had apparently witnessed the fatal confrontation from about 40 feet away. He heard a noise in the parking lot and saw two men standing in front of each other outside a car. One turned and stated walking back to the Dome Building. The other ran away out of the parking lot. The custodian did not understand what had happened and did not go to check on Francke.

No one was immediately arrested. Within weeks, Kevin and Patrick immediately came to Salem, and within weeks were telling reporters they believed Michael was killed by corrupt corrections officials he had been investigating. Documents were soon released showing drug trafficking and other crimes with the department had been investigated shortly before Francke was hired. The investigation ended with only a few low-level employees being disciplined. The state has consistently denied the conspiracy theory.

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