Theodore Frank, who wrote in his prison diaries that he got pleasure from torturing children, on Wednesday was given a death sentence for the second time for the kidnaping and murder of a 2-year-old Ventura County girl.
"Mr. Frank does have a mental illness," Orange County Superior Court Judge John J. Ryan said. "But the psychiatric testimony was not persuasive. . . . He had the capacity to appreciate what he was doing."
Frank, 51, spent almost six years on San Quentin's Death Row for the March 14, 1978, murder of Amy Sue Seitz of Camarillo before the state Supreme Court, on a 4-2 vote, overturned his death sentence in 1985.
The reversal of his death penalty became an issue in the successful attempt to oust state Chief Justice Rose Elizabeth Bird in last November's election. Bird was the only justice who voted to overturn Frank's first-degree murder conviction as well as his death sentence.
Frank's case was returned to Orange County, where his first trial had been held on a change of venue from Ventura County. The second jury, which was asked to decide only Frank's penalty, took less than four hours last month to vote for another death verdict for Frank.
Ryan, who had the authority to reduce that sentence to life in prison without parole, said Wednesday that, even though Frank had many things in his favor--religious involvement at San Quentin, an exemplary prison record and a history of helping other inmates--"the mitigating circumstances pale in comparison to the circumstances of the murder."
Frank, a thin, bearded man with wavy silver hair, had listened intently to testimony at his two-month second trial. Wednesday, he sat quietly with his head down as Ryan listed the injuries Frank inflicted on Amy Sue Seitz before her death, including three blows to the head, rape, and long, torturous pinches on the girl's body with a pair of vise grips.
Frank did watch as the girl's grandmother, Patricia A. Linebaugh, spoke to the court to urge a death sentence.
"He should get the maximum penalty. I wish there was one that is more maximum than the death penalty," Linebaugh said.
After Frank's first trial, Linebaugh became a co-founder of SLAM, a nationwide group advocating stiffer penalties for child molesters, and was also active in the anti-Bird campaign.
Linebaugh told the court that she was speaking on behalf of victims of child molesters across the country.
During Wednesday's sentencing, Ryan also listed in detail Frank's assault and molestation of six other children, from 4 to 10 years old, about which jurors at Frank's second trial had been told.
Ventura County Deputy Dist. Atty. Thomas J. Hutchins later called the new death sentence for Frank "a very satisfying result."
"It is depressing just to think that a human being would do what he did," Hutchins said.
Frank's attorney, Willard P. Wiksell, said his client had been "fatalistic" about the chances that Ryan would change the death sentence to life without parole.
"He's a little depressed right now," Wiksell said. "He knows that, with a new Supreme Court, the chances of another reversal are very slim."
Ryan asked Frank before he sentenced him if he had anything to say.
In a clear voice, Frank answered, "No, your honor."
4 years at Atascadero
Frank had pleaded guilty to three of the six cases prosecutors brought up at the penalty phase. On one of them, he served four years at Atascadero State Hospital from 1974 to 1978. He was released just six weeks before the Seitz girl's murder.
Linebaugh said she would call her daughter, Cheryl Roberts, who was Amy Sue's mother, with the news.
Linebaugh said her daughter lives in another state and was unable to be in court.
"But she made me promise I would be here today," Linebaugh said.
Linebaugh said the family would not gain any relief until Frank is executed.
"We know we have at least five years of appeals ahead of us," she said. "That will mean 14 years we've had to live with this. That's seven times longer than Amy Sue had a chance to live."
Little Hope for Reversal
Frank's death sentence will be automatically appealed to the state Supreme Court. Wiksell said that, because the court will have a new makeup after the ouster by voters of three justices last November, he does not have much hope of gaining a reversal.
Wiksell argued Wednesday that Frank should get a new trial because jurors briefly were told about two other alleged molestations by Frank. Ryan ruled there was insufficient proof for those to be considered as evidence.
But the judge instructed the jury to disregard such testimony, and told Wiksell that was not grounds for a new trial.
"Outside of those issues, it was a very clean trial," Wiksell said. "I don't see much for an appeals lawyer to go on."