Theodore Frank, who wrote in his prison diaries that he derived pleasure from torturing children, was given a death sentence for the second time Wednesday for the kidnaping and murder of a 2-year-old Ventura County girl.
"Mr. Frank does have a mental illness," said Orange County Superior Court Judge John J. Ryan. "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 California Supreme Court, on a 4-2 vote, overturned his death sentence in 1985.
That Supreme Court decision was raised repeatedly in last year's successful crusade to oust Chief Justice Rose Elizabeth Bird and two associate justices.
Voted to Overturn Conviction
Bird was the only member of the court 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 after a change of venue from Ventura County. The second jury, which was asked to decide only on Frank's penalty--took less than four hours last month to return another death verdict.
Judge Ryan, who had the authority to sentence Frank to life in prison without parole instead, said Wednesday that even though Frank had many things in his favor--religious involvement at San Quentin, an exemplary prison record and a reputation for 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 second two-month trial, often with his legs crossed. But Wednesday he sat quietly with his head down as he listened to Ryan run through a list of injuries that Frank inflicted on Amy Sue Seitz before her death, including three blows to the head, rape and pinching the girl's body with a pair of locking pliers.
Frank did watch as the girl's grandmother, Patricia A. Linebaugh, spoke to the court to urge a death sentence for him.
"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 founded a Thousands Oaks chapter of SLAM, a statewide group that works against child molestation. She also was 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 spoke of how Frank had assaulted and molested six other children ranging in age from 4 to 10 years old.
Ventura County Deputy Dist. Atty. Thomas J. Hutchins, the prosecutor in Frank's second penalty-phase trial, said later that the sentence was "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 reduce the death sentence to life without parole.
"He is 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 simply, "No, your honor."
Wiksell, who also was Frank's attorney at his first trial, said later that he has gotten to know him well enough to know he would never have addressed the court.
"He didn't have anything to say," Wiksell said.
Frank had pleaded guilty in three of the other six cases Ryan mentioned during the sentencing Wednesday. He served four years at Atascadero State Hospital and was released just six weeks before the Seitz murder.
Linebaugh said later that she would call her daughter, Cheryl Roberts, the mother of the victim, 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 went on to say that the family would not gain any real 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."
Frank's new death sentence will be automatically appealed to the state Supreme Court.
Wiksell argued before Ryan on Wednesday that Frank should get a new trial because the jurors were permitted to hear information about two other molestations that Ryan later ruled should not be considered. Ryan admonished the jury about those matters and told Wiksell on Wednesday that he did not have sufficient 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."