By Maxine Bernstein

The Oregonian

The Oregon Department of Justice objects to a federal judge vacating Frank Gable’s sentence for the 1989 killing of the Oregon prisons chief but won’t object to Gable’s release from state custody under certain conditions as the state appeals an order to retry Gable for the crime, its lawyers wrote in a new court filing Friday.

Dismissing Gable’s aggravated murder conviction and life sentence without the possibility of parole would go “beyond the scope” of Gable’s habeas corpus petition, which was a request to review the lawfulness of Gable’s imprisonment, not his sentence or conviction, the state Justice Department lawyers argue.

Yet they concede in a footnote that some courts have assumed that a federal judge considering such a petition does have the authority to throw out a state court’s conviction, yet contend that step shouldn’t be taken until the state is given a reasonable time to correct any constitutional problem.

Gable, now 59, has served nearly 30 years in prison since he was convicted of murder for the 1989 stabbing death of Oregon prison chief Michael Francke, 42.

In a stunning ruling in April, U.S. Magistrate Judge John Acosta found 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. Acosta ordered Gable be released or retried within 90 days of his order.

Acosta also found Gable’s lawyers had made a showing of “actual innocence” based on new and old information.

The state is appealing Acosta’s ruling and has urged the judge to place a hold on his order for a new trial.