A lawyer for the state Monday urged a federal appeals court to reverse a judge’s ruling that allowed the release of Frank Gable, who walked out of prison in 2019 after serving nearly 30 years for the killing of Oregon prisons chief Michael Francke.

The state contends Gable, now 63,and his lawyers didn’t meet the legal threshold for showing Gable didn’t commit the fatal stabbing in 1989.

Assistant Attorney General Benjamin Gutman argued that Gable has not produced any new “trustworthy eyewitness accounts” or critical physical evidence to undercut his conviction and that the alleged confession to the killing by another man, John Crouse, was unreliable and appropriately excluded at trial.

Gable’s lawyers countered that Oregon’s U.S. District Judge John V. Acosta made the right call and his decision should stand.

In a ruling in April 2019, Acosta found that the state trial judge erroneously barred Crouse’s confession and that Gable’s lawyers at the time should have asserted his federal due process rights in light of that error.

Acosta ordered the state to release Gable or retry him in 90 days. The state released Gable, then 59, in June 2019 and appealed Acosta’s decision.

On June 28, 2019, Gable left the Lansing Correctional Facility near Kansas City, where he had been held most recently, in a remarkable turnaround in one of the most publicized and debated murder cases in Oregon’s modern history. Gable is on federal supervision, living with his wife in Kansas as the state’s appeal proceeds.

He had been serving a sentence of life without the possibility of parole in the killing of Francke, 42, in Salem. Francke was the director of the Oregon Department of Corrections when he was attacked during a confrontation near his state-issued car outside the Dome Building, the agency’s headquarters. A jury found Gable guilty of aggravated murder and he was sentenced in 1991.

Crouse, a Salem man who was on parole for a robbery at the time, repeatedly said he had killed Francke, telling numerous law enforcement officers as well as his mother, brother and girlfriend that he stabbed Francke when Francke caught Crouse burglarizing his car on Jan. 17, 1989.

Acosta ruled 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.”

He cited eight material witnesses in the case who had recanted their testimony and a record of improper interrogation and flawed polygraphs used to question the witnesses and shape many of their statements to police.

A three-member federal appeals court panel held arguments Monday by video.

Gutman argued that Crouse’s confession about the knife used didn’t match the victim’s wounds and Crouse’s contention that he stabbed Francke with the knife in his left hand didn’t match autopsy findings that suggested the wounds were more consistent with right-handed stabs.

Crouse’s confession that he used a wire to break into the car also didn’t hold up because police weren’t able to get into the car that way, Gutman said.

“Without corroboration or other assurances of trustworthiness,” the trial judge appropriately excluded Crouse’s statements at Gable’s trial, Gutman argued.

Assistant Federal Public Defender Nell Brown said Crouse’s confession was reliable and corroborated, contained details that only the killer would know and was considered truthful by an FBI polygrapher who was flown in from out of state to test him.

“The state is pointing to minor inconsistencies in light of many, many things that were corroborated,” Brown argued.

Acosta had closely read Crouse’s interview with police less than three months after the killing. Crouse confessed to seeing “stuff’’ in Francke’s car, parked on the grounds of the state hospital, where Francke’s office was located, and intended to break into it.

Crouse described how Francke confronted him, offering a physical description of Francke, who in the autopsy was described as 6-foot-3 and weighing between 200 and 210 pounds. Crouse said Francke punched him with significant force and then Crouse stabbed Francke, detailing where Francke was stabbed.

Crouse, a prolific car burglar, confessed to a round-house right punch to the left side of Francke’s face, explaining a cut to Francke’s eye that otherwise wasn’t explained in the case, Brown said.

Further, Crouse’s description of the sound that Francke made when stabbed with the final blow matched that offered by another witness, and police found a wire in Crouse’s home that he had described using to break into Francke’s car, Brown said.

She pointed out that no physical evidence tied Gable to the murder and argued that Gable was home the night of the murder.

“There isn’t anything reliable remaining of the state’s case,” Brown said. “We’ve presented multiple under oath recantations of the witnesses that the state declared material to its case against Gable, including both purported eyewitnesses who fully recanted every statement they made implicating Gable.”

Gutman responded that Crouse’s confession to his brother was made in a call to his brother during the course of a police interrogation.

Gutman also highlighted the sworn statement of one witness, Earle Childers. He said Childers “recanted his recantation” and signed an affidavit in 2015, saying his testimony at Gable’s trial was truthful, that he had seen Gable driving his car on “D” street near the state hospital grounds on the night of Francke’s murder.

Childers said he tried to get Gable’s attention to get some methamphetamine from him and that Gable told him later not to tell anyone that he had seen him there, the affidavit said.

Senior Judge Richard A. Paez and Judge Jacqueline H. Nguyen of the 9th Circuit and Minnesota’s Chief U.S. District Judge John R. Tunheim made up the appeals panel that heard arguments.

Nguyen asked how the court should view the allegations of misconduct involving improper interrogations and coaching by detectives “that cuts across the multiple witnesses, including the primary witnesses that the state relied on at trial?”

Gutman disputed the characterization of misconduct, yet acknowledged that the interrogations conducted in the case “maybe with the benefit of hindsight wouldn’t be the way that they’d be conducted today.”

Nguyen said it’s not uncommon to see witnesses years later change their story.

Yet, she added, “This case is a little bit different in that the allegations of misconduct … for lack of a better word, the way that the state developed the evidence really called those witnesses’ testimony into question in a case where there’s really no direct evidence against the accused.”

Gable’s lawyers have detailed what they argued were improper police interrogations through aggressive, repeated polygraphs of multiple people, who have since told them that they conformed their testimony to what investigators wanted to hear.

Gutman attempted to discredit the recantations.

“Recantations are unfortunately not infrequent and should be viewed with some suspicion,” he told the panel. He also noted that one of the key witnesses who recanted, for example, did so after he was paid $1,000 by Francke’s family, which believes another man committed the killing.

Paez asked Brown to address the affidavit of Childers, who swore that he saw Gable driving by the Dome Building on the night of the killing.

Brown responded, “He always said he wasn’t 100% sure that it was Gable that he saw.” Brown also said defense attorneys sent an investigator to the scene who found there was “very little chance he could have seen what he said he saw with Gable supposedly driving toward him in the dark.”

“The state never takes on any of our evidence of innocence directly” but relies on a witness who was incentivized to “tell the police what they want to hear,” she said.

The appeals panel didn’t indicate when it will issue a decision.

Hours before the appeal was set to be heard, Francke’s family Sunday night urged the state by email to drop it. Francke’s brothers have been staunch defenders of Gable and long believed he was wrongly convicted.

“The overwhelming lack of evidence, lack of motive and absence of opportunity demand that Attorney General Ellen F. Rosenblum formally withdraw the appeal and notify the Marion County District Attorney’s office that no further prosecution is justified,” wrote Kevin Francke, Michael Francke’s younger brother. “Plenty of time for sensible, intelligent individuals to come to the conclusion that they are beating a dead horse, and prolonging the senseless pain and suffering by Frank and all of the parties so deeply affected by Mike’s murder.”

Since Gable’s release, the Francke brothers have visited him, kept in contact with him and worked to raise money for his living expenses.

He has been living with his wife, Rainy Storm, and working for a concrete contractor. He recently, though, developed problems with his back and legs that have restricted his ability to walk, according to Kevin Francke.