Trial to Resume in Case Targeted by Foes of Bird

In a case being used as ammunition in the campaign to unseat Chief Justice Rose Elizabeth Bird, Theodore F. Frank has been brought back to Orange County for a new penalty trial over whether he should be executed for the torture murder of 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 convicted nearly seven years ago and given the death penalty in Orange County, where the case was moved for trial.

Last year, the California Supreme Court, while upholding the conviction, reversed Frank’s 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.

Chief Justice Bird was one of four justices who voted to reverse Frank’s death penalty but the only one who also voted to overturn his conviction.

Bird opponents are citing the Frank case in their campaign literature. Patti Linebaugh of Camarillo, Amy Sue Seitz’s grandmother, has emerged as a frequent spokeswoman for the anti-Bird campaign.

Frank, 51, will be before Superior Court Judge John J. Ryan in Santa Ana for pretrial motions Monday. His trial is not expected to begin until Nov. 3. Jurors impaneled then will be asked to decide whether Frank should get the death penalty or life imprisonment without parole.

Ventura County prosecutors have as 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 will not be able to use the diaries this time, but they are seeking to use in evidence some of Frank’s medical records from Atascadero State Hospital, where Frank wrote his diaries. He had been confined to the prison mental facility for four years before his release in January, 1978, just six weeks before the Seitz murder.

“He says in these reports many of the things he said (in the diaries),” said Ventura County Deputy Dist. Atty. Thomas J. Hutchins, who will prosecute the case. “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.

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

Investigation into the Seitz murder did not lead to Frank until July, 1978, 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.

During a search of Frank’s apartment, authorities 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 by a 4-2 vote on June 6, 1985.

A majority of the Supreme Court voted that the diaries were damaging in the penalty phase of Frank’s trial, but ruled there was so much other evidence of Frank’s guilt that the diaries had no major impact on the guilt phase.