Archive for the ‘Appeals’ Category

So now we wait. A decision in 2-3 weeks will most likely be an order affirming the trial court without an opinion. If 6-8 weeks go by without a decision it could mean the court is taking the case seriously and writing an opinion. I’ve said this before, but this argument has been a complete waste of time. Who would’ve ever guessed six years worth of waste. It doesn’t matter really, the real waste is the argument itself. I can’t be surprised if Frank loses this round because even I’m not convinced his argument has merit. Irregardless, arguing to be resentenced is BS. Frank’s appellate arguments should be all about being exonerated and winning a new trial. This type of argument sends the wrong message to anyone paying attention. Then again, is anyone really paying attention?

If Frank wins this round it will sure give the media something to write about. FRANK GABLE WINS NEW TRIAL! Yeah, I can see it now. That’s pretty much what was written back in 2006 when the court shot down every one of Frank’s arguments except this ex-post facto issue. The media really jumped the gun then, and a headline like that now would be wrong as well. Oh there would be a trial of sorts, but only for a new panel of jurors to decide on resentencing. Not guilt or innocence.

This current decision is difficult to predict. On the one hand you would think the court wouldn’t want to rule in Frank’s favor, thereby allowing Frank’s case to come back into the media spotlight (and believe the appellate courts write their opinions with these things in mind), and on the other hand…if they rule favorably it will inevitably delay Frank’s case from reaching the fed level where he has his best chance of successfully arguing constitutional violations at his trial which could conceivably overturn his conviction. I know, sounds cynical, but can you blame me?


A hearing has been scheduled for Frank on May 24, 2011 at 9am. This hearing will determine whether or not to assemble a new panel of jurors to decide on resentencing only. The decision to sentence him to life with the possibility of parole or the death penalty. If Frank wins at this hearing it will further delay his case from officially reaching the federal level, probably at least another year. If he loses, his state appellate status is complete, and his case officially moves to federal court.

A win here is a loss in my opinion. The best scenario to be had is obtaining a new sentence of life with the chance of parole. Most likely parole would be denied at his first two board hearings, but on the chance he is granted parole it would be to a federal prison to serve a 6-8 year sentence that runs consecutive to his state murder charges. Personally, after all this time, exoneration would be the only thing I’d want.

The state’s responding brief to the resentencing argument which has lingered for over five years is due next week on Sept. 2, 2010.
After that, Frank’s attorney will most likely ask permission to file a reply brief.  If that permission is granted, that will consume about another month.  After that, the case is set for oral argument, which takes another two or three months.  Then, the case is taken under advisement by the court.  A quick decision, which would most likely only be one affirming the trial court’s rejection of Frank’s claims is not what Frank’s lawyer is hoping for. He’s trying to win a reversal here.  Decisions reversing the trial court are usually not issued for three to six months after argument.  So, we’re still looking at nearly another year before a possible favorable decision from the Court of Appeals and if it’s a reversal we’re looking at another year or more to assemble a new jury for the resentencing.
All this time spent over the possibility of parole directly to a federal prison for another conviction Frank has which runs consecutive to his state charges. As I’ve said before, this is holding up his appeal from officially reaching the fed level.
Harrison Latto, the Portland attorney handling Frank’s state appeal over the resentencing issue has recently filed a brief with the court on the matter.
This issue has certainly lingered in the state courts for quite some time now. On January 18, 2006, the appellate court affirmed the trial court’s judgment that had rejected Frank’s post-conviction claims, except in one respect. It reversed the trial court’s rejection of Frank’s claim that he had not waived his right to be free from an ex post facto law; namely, the submission to the sentencing-phase jury of a third sentencing option (life without the possibility of parole) that was enacted after Frank’s crime. The appellate court remanded to the trial court for it to determine whether Frank, if he had been adequately informed of his right not to have a third option submitted to the jury, would have waived, or asserted that right.
So, to break that down for you, at the time of Michael Francke’s murder the law allowed for a defendant convicted of aggravated murder to have the jury decide on life with the chance for parole or the death penalty. However, by the time Frank was convicted and sentenced, a third option was enacted…that being the opportunity to have the sentencing jury decide on death or life without, and that was the option presented to the jury
Which one would you have chosen if presented with the choice? Frank’s argument is that he wasn’t given a choice, and he wants that choice now. The opportunity to have a sentencing jury decide on death or life with the chance for parole.
If Frank wins this appeal it will result in further delay of his case reaching the federal appeals court. Possibly a year or two.
I am offering a link to the well prepared brief filed by Mr. Latto. It’s in .pdf format. It details quite well, among other things, how the court rushed hearing this issue while Frank was in transit from Florida to Nevada, and how Frank was barely given any time to consult with his attorney Mr. Hadley prior to the hearing. Not to mention Mr. Hadley being given little time to prepare himself.
Give it a look and if you have any questions or comments be sure to post them.

Let’s Talk About September 15

Posted: September 12, 2009 in Appeals
With all the hoopla the past few days over the crazy religious fanatic who turned 9-9-9 upside down to make 6-6-6 and used it as a reason to hijack a plane with his three accomplices…the Father, the Son, and the Holy Ghost…LOL…I couldn’t help but think about 9-15.
September 15 marks 20 years that Frank has been incarcerated for the Francke murder. Ironically, it is also Shorty Harden’s birthday.
It also marks the 1st year anniversary of Frank’s appeal being reinstated. You know, that appeal on the resentencing argument that Frank’s post-conviction attorney ended up filing late, and eventually got saved due to new legislation allowing late-filing of appeals. Yeah, that one. Four years of a ridiculous circle jerk through the courts and we’re still waiting for a decision while it continues to hold-up Frank’s case from officially reaching the fed level.
Oh well, if anything, it’s a good example of the circle jerk to expect at the fed level as well.
I made an inquiry this past week on the status of Frank’s lingering state appeal with regard to the resentencing issue. My last inquiry was on March 24 and was told  "The transcript has been filed and I have a brief due in a few weeks."
My recent inquiry garnered the following response..
"The transcript was filed only about six weeks ago.  I am working on his case now."
Ok, yeah I know, six weeks ago would be around the last week of April. A miscalculation or was the transcript actually filed near the end of April and not at the end of March?
I decided to ask because back in March I was told to "feel free to ask."
Rob wrote:
"Did you mean "brief?" I thought you said you filed the transcript back in March and had a brief due in a few weeks.
So I guess we’re still looking at about another six months or so for a response, huh?"
Lawyer wrote:
"I have not yet filed the brief.  I will complete my review soon and be in touch with Mr. Gable about it."
Ummm…ok. Maybe it’s just me but that last sentence kinda left me feeling like I’m not so free to ask anymore. I mean whatever, so he filed the transcript in late April. Maybe he spoke ahead of himself in March. No big deal.
I remember once talking to David Celuch I think it was, the lawyer who originally argued the resentencing assignment, and being told he was under no obligation to tell me anything related to Frank’s case because I’m not a family member and don’t possess power of attorney for Frank. Hey, I’ve never asked about anything that woudn’t be available under the FOI act. 
I actually laughed recalling how Frank gave power of attorney to some woman named Julie Smith who was working on obtaining her PI license and took it upon herself to go visit Frank in Florida in December of 2004. Within a couple of months of that first visit Frank had given her POA. Did I mention she struck up a romantic relationship with Frank as well? Ah, tits and ass. What I could accomplish with that. LOL! No offense to any ladies out there. Just a little sarcastic humor.
Julie Smith would be a chapter in my book if I ever wrote one. Interesting story. She’s the woman who obtained Shorty’s address for me by running a DMV check. Phil and Kevin played her (or me haha) by being cordial with her and telling me behind her back that they didn’t know what her angle was, didn’t trust her, and thought she was just one of those convict groupies. Her relationship with Frank didn’t last a year and she’s all but disappeared. Address and phone number required by all PI’s to submit publically are outdated. Might have become current since the last time I checked a few months back. Not important enough to me to bother to check again, but if anyone else wants to I’d be obliged.
Julie was also of Native American descent. Cozied up to Frank’s sister Francine real fast. When I had my domestic with my wife she was one primarily responsible for passing immediate judgement on me and painting the picture of me as an OJ looking for a place to happen in her conversations with Francine. Told me so herself later. That led to Francine asking Julie to draw up some worthless legal document threatening legal action against me if I didn’t discontinue my website activities. Remember, neither of these woman had spoken to me about my domestic incident prior to this. I just laughed it off.
The last time I heard from her she told me she had tried some meth for the first time the night before and that she had the most fun she’d had in years. LOL! Go figure! Oh yeah, she was also working toward getting hired by SAIF as an investigator. Yeah, the Julie Smith chapter was one of the first interesting peculiarities I encountered.
Anyway, back to this appeal thing…pretty safe to assume with his new info that we won’t be hearing about any decision until at least the first part of next year, and it could easily linger well into the latter part of next year before an actual decision on whether or not Frank gets a resentencing hearing. If he does it will be another year before that takes place and when and if it does a new panel of jurors will simply decide on two choices. Life with the possibility of parole or death.
If Frank were to get "life with" he’d be about a year away from being eligible for parole. With his record alone he’d get dumped to his next parole date, and maybe the next. That’s about another 2-4 years.
No hurry really on any of this I suppose. The eligibility dates are what they are if he becomes eligible. But, Frank’s case can’t proceed to the federal level until this resentencing issue is resolved. For someone who wants to be exonerated, Frank will probably end up delaying his case from reaching the fed level by about 3-4 years, and the fed level is his only chance of being exonerated.
Rex Brockman, someone who knows Frank and the entire Gable family, recently posted in my guestbook. Here’s the post…
"My name is Rex Brockman, thank you for all the work you do. with out this site I would not have not known about frank , he  and I go back to when we were kids in Glasgow Montana, I knew his entire family. I have been in touch with Frank both by mail and phone and he seems to be in very good spirit and is very positive about being released. he told me that his case is going to federal court some time this year. is  there any way to get the trial  transcript, I sure would like to see what his defense team did to defend him. From reading your site it does not look like they did much. why did they not object to life with out parole at the time of his conviction this was not in law in the state of Oregon. you can reach me at ……………… I hope there is something I can do to help."
Rex Brockman
and my reply…
Hi Rex,
I just wanted to say thanks for posting in my guestbook. I spoke to Frank last night on the phone and he said he had been in contact with you like you said.
I don’t have a copy of Frank’s trial transcript. I wish I did. As for the life without parole sentence, that’s what’s currently stalling Frank’s case from reaching the federal appeals level. Like you said, life without was not an option when the crime occurred. It became an option when he was convicted. Frank’s lawyers apparently took it upon themselves to decide they would rather the jury decided on Death or life without…compared to Death or life with. Their reasoning being that decision probably saved him from the death penalty. Whatever, they were supposed to let Frank make that decision.
In my opinion it’s a wasted argument now. It has stalled Frank’s case from reaching the federal level for nearly four years now, and the best case scenario is Frank will be resentenced to life with the possibility of parole. Paroled straight to a fed prison where Frank has an 8 year sentence which runs consecutive to his state murder charges.
Click on the following link to read more.
With all due respect Mr. Brockman, if you’re serious with your offer to help, I’d suggest you check your email more frequently. I sent my reply two weeks ago, and have yet to receive a reply.
Update on Frank’s state appeal status:
Harrison Latto, the attorney handling the resentencing argument that is still lingering in the state appeals court since it was first argued by David Celuch in June of 2005, has filed a transcript with the court. A brief is due in a few weeks.
After he files the brief, it could take the state six months or more to file a responding brief.  The case is then set for argument, which takes a few more months.  Then it is taken under advisement by the court.  A decision might be issued within a few weeks after that (in which case it would probably be an unfavorable one), or could take a year (better chance of a favorable decision).  Appellate litigation is slow and there is no way to avoid the delay.
So, as for Frank’s case getting to federal court sometime this year…I seriously doubt it!