Penalty Trial to Resume in Case Targeted by Bird Opponents

In a case being used as ammunition to unseat Chief Justice Rose Elizabeth Bird, Theodore F. Frank has been returned to Orange County for a new trial to determine whether he should get the death penalty for torturing and killing 2-year-old Amy Sue Seitz.

Frank, who had a 20-year history of molesting children before the Seitz killing in March, 1978, in Camarillo, was brought back to the Orange County Jail from Death Row at San Quentin Prison last week.

It was nearly seven years ago that he was convicted and given the death penalty in Orange County after the case was moved on a change of venue. Last year, the California Supreme Court upheld his conviction but reversed the death sentence, ruling that diaries he had written while at Atascadero State Hospital should not have been introduced as evidence against him because they had been confiscated illegally.

Anti-Bird forces are pointing to the Frank case in statewide literature as a prime example of why she should be removed from the Supreme Court in the Nov. 4 election. When the Supreme Court voted to overturn the death penalty against Frank, Bird alone voted to overturn his conviction as well.

Patti Linebaugh of Camarillo, Amy Sue Seitz’s grandmother, has been active in the anti-Bird movement. She also has been pushing for a quick retrial for Frank.

In one letter to the court, she said:

“We have suffered continuously since 1978 and will live with this terrible tragedy the rest of our lives. We haven’t asked for anything these past eight years but strength. We have just run out of that.”

Frank, 51, will go before Superior Court Judge John J. Ryan for pretrial motions Monday. His trial is not expected to begin until Nov. 3, when jurors will be asked to decide whether Frank should die or serve life without parole.

Ventura County prosecutors have a chilling list of witnesses--10 young women and men who are expected to testify that Frank molested them, and tortured them in some cases, between 1958 and 1978. Frank was convicted in five of the cases, and the victims have identified him as their assailant in the other five.

Prosecutors won’t be able to use the diaries this time, in view of the state Supreme Court ruling. But they have something else they claim serves the same purpose: part of Frank’s medical records.

Most are from Atascadero State Hospital, where Frank wrote his diaries. He had been confined to the prison mental facility four years before his release in January of 1978, just six weeks before the Seitz murder.

“He says in these (medical) reports many of the things he said (in the diaries),” said Ventura County Deputy Dist. Atty. Thomas J. Hutchins. “He tells about how he likes to torture children and the enjoyment he gets from molesting them.”

Frank’s attorney, Willard P. Wiksell of Ventura, claims these records should not be presented to the jury because they are a product of private communications between a doctor and a patient. He has a motion before Judge Ryan to stop the prosecutors from using any of Frank’s medical records.

Frank Shared Letters

Prosecutors argue that Frank gave up any right he may have had to keep the records private by sharing them with a free-lance writer.

In June of 1984, Frank got a letter from Donald Bloomfield of Campbell, Calif., who wanted to write about him. They began corresponding, and Frank ordered most of his medical records sent to Bloomfield.

The correspondence ended in June of 1985 with Bloomfield rebuking Frank for refusing to recognize it was a mistake for him to be released from Atascadero.

This was about the time Frank won a new penalty trial from the Supreme Court. Soon afterward, Bloomfield gave copies of all of the Frank medical records he had to Ventura County prosecutors.

“When he turned everything over to a free-lance writer, he waived any claim of privilege, in our opinion,” Hutchins said.

The medical records have not been placed in the court file yet. But extensive sections of Frank’s letters to Bloomfield are in the file.

What’s available depicts Frank as someone who blames many of his problems on his doctors, the pressure of trying to succeed, both financially and educationally, and what he considers “malfeasance” by prosecutors at his first trial.

He also denies in letters to Bloomfield that he killed Amy Seitz, though he readily admits a long history of child molesting.

Court papers show his first conviction was in 1958, when he assaulted a 9-year-old girl not far from his home in Fenton, Mo. His next conviction was in 1968, 10 years later, but prosecutors plan to introduce evidence of attacks on two 11-year-olds in the interim.

Frank served two years in prison after the 1968 attack. His next conviction was in Bakersfield in 1974, when he was sent to Atascadero on an eight-year sentence. Several other molestation charges were dismissed in return for Frank’s guilty plea in that case.

At Atascadero, Frank became involved in transactional analysis, group therapy, family therapy with his wife, Bernie, and individual counseling. It was in group therapy, he wrote to Bloomfield, that he begin to see improvement.

Self-Esteem Rose

He wrote that, going into the therapy, “I was considered a tough nut to crack.” But after several months of group therapy, he said, “my self-esteem went from zero up to a healthy level.”

He was released from Atascadero in January of 1978 on the condition that he participate in out-patient therapy.

Investigation into the Seitz murder did not lead to Frank until July of1978, after he was arrested and charged in two molestation cases that occurred after the Seitz killing.

It was one of those cases, and one of the cases for which he was sentenced in 1974, that led investigators to suspect Frank in the Seitz case. In both, the girls had been tortured with a pliers-like instrument, raped and forced to drink beer. Amy Seitz had been tortured the same way and was found with alcohol, the equivalent of two beers, in her system.

Frank was in jail, awaiting trial on one of the 1978 molestation charges, when investigators searched his two-bedroom Woodland Hills apartment, where he lived with his wife.

During the search they discovered a pair of vice grips and numerous papers, including the diaries. Experts later proved that marks on Amy Seitz’s chest had been made by that same pair of vice grips.

The investigators had a search warrant that allowed them to seek out and confiscate the vice grips, but the state Supreme Court ruled that nothing in the warrant covered the diaries--written while Frank was at Atascadero--and that they therefore had been confiscated illegally.

As illegally confiscated evidence, the diaries should not have been presented to the jury, the court ruled.

Bird wrote: “The freedom from government intrusion into an individual’s papers has long been recognized in the law.”

A majority of the Supreme Court voted that the diaries were damaging in the penalty phase of Frank’s trial. But they also said there was too much evidence for their use to matter in the guilt phase of the trial.

A woman who had thwarted an attempt to abduct her 4-year-old son--just a few doors away from the house from which Seitz was taken and a few minutes before the abduction--could not positively identify Frank in a lineup. However, she said during the lineup and later at his trial that Frank closely fit the description of the abductor.

Skipped Class That Day

Investigators also learned that Frank had taken his wife to work at Camarillo State Hospital along a route that would have taken him near the site of the Seitz abduction. Also, they learned Frank had skipped class that day at Cal State Northridge, where he attended classes three days a week, and had canceled an appointment with his psychologist.

In a letter to Bloomfield, Frank denied the Seitz killing: “I didn’t start molesting again until late April or early May. Got that? Yes, I am aware of the date of the Amy Seitz murder (March 14).”

Frank blamed his return to child molesting in 1978 on pressures of attending college and on his psychologist, Dr. Raymond Anderson: “I first began getting real shaky--pressures, stress--after my mid-semester exams. I got my grades around April 1.”

Anderson, he wrote, agreed to let him try a behavioral modification program, designed to improve his sex life as an adult.

“Anything is/was worth a try to keep me away from children,” Frank wrote.

But Anderson wanted Frank to have six months of therapy before trying such a program, which upset Frank.

“Well, I didn’t last six months,” Frank wrote, referring to his July 7, 1978, arrest, 5 1/2 months after leaving Atascadero.

In the final letter to Bloomfield included in the court file, Frank told the free-lance writer: “Are you aware how much trust I’m putting in you, Don? Bernie says I’m totally insane for trusting you implicitly. I hope the hell she’s wrong.”

Frank’s trial is expected to last at least until the end of the year.

Since his arrival at the Orange County Jail last week, Frank has been in protective custody. Frank wrote to the court before his 1979 trial that he did not want the change of venue to go to Orange County.