PORTLAND, Ore. (AP) — The Oregon Department of Justice will appeal a federal judge's ruling that ordered the release or a new trial for Frank Gable, convicted of murder for the 1989 stabbing death of Oregon's prison chief Michael Francke.
The Oregonian/OregonLive reports the state filed its notice of appeal Wednesday in U.S. District Court in Portland.
The state also filed a 44-page motion to put on hold U.S. Magistrate Judge John V. Acosta's order while the appeal is pending.
The state is interested "in continuing custody and rehabilitation" of Gable, fears that he'll flee if he's released as he has a life sentence hanging over him, and doesn't want to waste time or money preparing for a new trial, if an appellate court overturns Acosta's order, according to the state's motion.
"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 state Justice Department lawyers wrote. They also believe he remains a danger to the community.
Oregon's Federal Public Defender's Office, which represented Gable, is expected to seek Gable's release pending the state's appeal.
Gable, 59, is serving a life sentence without parole, now in a Kansas prison.
The state's effort to overturn the judge's ruling will go before the 9th U.S. Circuit Court of Appeals. Last month, Acosta gave the state 90 days to retry or release Gable.
Marion County District Attorney Paige Clarkson this week said her office is still weighing whether it will retry Gable. Legal observers have said a new trial is unlikely because of the passage of time and Acosta's decision.
Francke was 42 and the director of the Oregon Department of Corrections when he was attacked near his state-issued Pontiac outside the Dome Building, the agency's headquarters in Salem, on Jan. 17, 1989.
He was found dead by a security guard on a covered porch of the building. Marion County prosecutors argued at trial that Francke had come upon Gable as Gable was breaking into the prison director's car. They said Gable, a small-time methamphetamine dealer and ex-con, stabbed Francke three times and then fled. Francke staggered to the porch and died.
In his ruling last month, Acosta found that the state judge in the Gable case was wrong to exclude another man's confession to the crime from the trial and that Gable's defense lawyers at the time should have asserted Gable's federal due process rights in light of that error.
Francke's brothers, Patrick and Kevin Francke, publicly urged the state not to appeal. The two have long believed Gable was innocent of the crime.
The Oregon Innocence Project said on Twitter on Wednesday that at least seven prosecution witnesses implicated Gable after prolonged questioning by police and use of false evidence and threats, and that all later recanted.
Information from: The Oregonian/OregonLive, http://www.oregonlive.com