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State High Court Reverses Four Death Penalty Cases

Times Staff Writer

The California Supreme Court reversed four death penalty cases Thursday, including one of the most notorious Southern California murders in recent years.

The four reversals bring to 33 the number of death penalty cases overturned by the high court since capital punishment was reinstated in California in 1977. Three death judgments have been affirmed by the justices during the same period.

The rulings prompted an immediate outcry from prosecutors, adding to the mounting criticism of the court’s handling of capital cases. Also fueling the controversy was the grisly nature of the crimes and the fact that two of the reversals involved child murders.

By a 4-2 margin, the court overturned the sentence of Theodore F. Frank, convicted of the March, 1978, murder of 2-year-old Amy Sue Seitz. Frank’s conviction stands, but the penalty part of his trial will have to be retried. The murder was committed six weeks after Frank, who had a 20-year history of child molestation, was released as cured from Atascadero State Hospital.

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During a four-hour period after kidnaping her from the Camarillo home of her baby sitter, Frank bound her, forced her to drink beer, raped, tortured and mutilated her. Finally, he strangled her, leaving the body in Topanga Canyon. The court ruled that writings by Frank, which were used by the prosecutor in convincing the jury to recommend a death sentence, were improperly seized by police and thus should not have been permitted into evidence.

In the second case, the court overturned by a 4-3 margin both the conviction and sentence of Harold Ray Memro, concluding that the judge should have allowed more inquiry into whether Memro’s confession was coerced by South Gate police officers. Memro was sentenced to death for the Oct. 10, 1978, murder and molestation of 7-year-old Carl Carter Jr.

In two other cases, including one in which the defendant murdered a married couple as their 8-year-old son watched, the court concluded that the penalty phases of their trials must be retried because the prosecutor failed to specifically prove that the murders were intentional.

Criticism of the decisions erupted immediately.

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“If this court is not willing to execute somebody like this, who will they be willing to execute?” asked Ventura County Dist. Atty. Michael Bradbury, whose office prosecuted Frank.

Bradbury said he will again seek the death sentence, “if possible,” when the penalty phase of Frank’s trial is retried.

‘Completely Predictable’

“The results in these cases are becoming completely predictable,” said Greg Thompson, executive director of the California District Attorney’s Assn., which is involved in a campaign to unseat Chief Justice Rose Elizabeth Bird and two other justices who are up for retention election in November, 1986.

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Assistant Atty. Gen. Steve White, head of the attorney general’s criminal division, called the results “extremely disappointing.”

The Frank case has drawn particular attention. Argued three years ago, the case was one of the death cases pending longest before the high court. It prompted efforts to toughen laws against child molesters and require them to spend time in prison. Amy Sue Seitz’s grandmother, Patti Linebaugh, is one of the leaders in the campaign to unseat Bird.

In Frank’s case, the court concluded that the trial judge erred by allowing into evidence the defendant’s writings two and three years before the murder, while Frank was at Atascadero. The writings--jotted into notebooks in diary form--were cited by the prosecutor in asking the jury to impose a death sentence on Frank.

In one entry, Frank wrote: “Children, made to order outlet for my anger and sex. Innocent, trusting, scared, vulnerable and submissive.” In another entry, Frank wrote, “I want to give pain to these little children. I want to molest them. I want to be sadistic. I want to harm them.”

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Search Order Cited

Writing for the court, Justice Stanley Mosk said that the search warrant used by police in seizing the written material was too broad and allowed officers to seize items indiscriminately from Frank’s apartment.

In addition to finding pliers evidently used to torture the young girl and the notebooks, police took other items, including unused announcements for Frank’s wedding, the family budget and written instructions for ballroom dancing.

“The vice of an over-broad warrant is that it invites the police to treat it merely as an excuse to conduct an unconstitutional general search,” Mosk wrote.

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Mosk concluded that although the search was illegal, other evidence tying Frank to the crime was so strong that any mistakes were harmless. The court therefore affirmed the guilty verdict against Frank.

Mosk, joined by Justices Cruz Reynoso and Allen Broussard, pointed out, however, that the diaries were the key evidence used by the prosecutor to convince jurors to sentence Frank to death. Because the diaries were seized illegally, the penalty phase must be retried, the court said.

Bird said in a separate opinion that she would have reversed both the penalty and conviction. She agreed that the notebooks were illegally seized. She also said Frank was denied a fair jury because potential jurors who were philosophically opposed to capital punishment were excluded.

Separate Opinion

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Justices Otto Kaus and Joseph Grodin stopped short of concluding that the diaries were illegally seized. Their separate opinion did not express a view of whether Frank’s penalty phase should be reversed. The seventh justice, Malcolm Lucas, was not on the court when the case was argued.

In Memro’s case, Bird concluded that the trial judge erred by failing to allow defense lawyers access to records showing whether complaints had been lodged against the South Gate officers who interrogated Memro.

Memro claimed that although he confessed, the confession was coerced. His lawyer presented 17 witnesses who maintained that there was a practice at the South Gate department of coercing confessions.

The trial judge refused the defense lawyers’ demand that he order the department to release information on 16 officers, four of whom were involved directly in the confession.

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According to his confession, Memro lured Carl Carter to his apartment in order to take pictures of the boy. When the boy tried to leave, Memro grabbed him and strangled him with a clothesline.

Memro also was convicted of two July 26, 1976, murders of boys. One victim, Scott Fowler, was molested. Memro slit the throat of the boy’s friend, Ralph Chavez Jr., after Chavez saw what happened had happened.

No Death Penalty

He did not received death sentences for those murders because the death penalty was not in effect in California at the time. Like Frank, he had been arrested previously for molestation. In 1972, he severly beat a 9-year-old boy and was treated at Atascadero.

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Bird was joined in the majority by Mosk, Broussard and Reynoso. Dissenting were Grodin, Kaus and Lucas, who argued that if nothing was revealed in Police Department records, the judgment should stand without a new trial.

The two other cases, reversed unanimously, involved:

- John Westley Hayes, convicted and sentenced to death for the July, 1981, murders of the Susan and Leonard Fong during a robbery of their South-Central Los Angeles grocery, while their 8-year-old son, Daniel, watched. Hayes also shot the boy’s grandmother, who survived. He also shot and killed a fast-food restaurant employee during a robbery a week earlier.

- Juan Anthony Boyd, convicted and sentenced to die for the murder of David Edsill, who had stopped on a Pomona street to ask Boyd and a group he was with for directions. Boyd demanded money from Edsill. When Edsill refused, Boyd pulled a gun. As Edsill ran, Boyd fired at least five shots, killing Edsill. Edsill was going to a friend’s home for a party celebrating the birthday of the friend’s mother and the end of the football season at the Christian college he attended.

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In both cases the court held that the prosecution failed to specifically prove that the men intended to commit the murders.


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