Death Penalty Is Upheld for Child’s Killer : Ruling: The state Supreme Court, in a 7-0 vote, rejects a bid by Theodore Francis Frank for a new trial in the torture-slaying of a 2-year-old Ventura County girl in 1978.

The California Supreme Court, ruling in one of the most notorious capital cases in state history, on Thursday upheld the death sentence of Theodore Francis Frank for the torture-murder of a 2-year-old Ventura County girl in 1978.

A previous death sentence for Frank had been overturned by the high court in 1985 in a controversial decision that was cited in the successful campaign to defeat Chief Justice Rose Elizabeth Bird in the November, 1986, election.

Frank, 55, was convicted and sentenced to die for the slaying of Amy Sue Seitz of Camarillo six weeks after he had been released from Atascadero State Hospital. Frank had a 20-year history of child molestation.

Evidence indicated that the girl had been kidnaped from her baby-sitter’s residence, bound hand and foot, forced to drink beer, and then raped, tortured and mutilated with locking pliers before she was strangled.

The court, in an unanimous opinion by Chief Justice Malcolm M. Lucas, rejected Frank’s bid for a new trial on grounds that the judge at the penalty retrial improperly heard pleas for a death sentence from the victim’s grandmother, a leader in the campaign against Bird.

The justices also rejected Frank’s argument that the jury should not have been allowed to see photographs of the victim’s battered body. The court said there was no reasonable possibility that the photographs affected the jury’s verdict.

Lucas quoted one of the prosecutors in the Frank case, former Ventura County Dist. Atty. Thomas J. Hutchins, now a Municipal Court judge, who after displaying the photographs told the jury during penalty phase deliberations:

“You don’t have to be angry; you don’t have to be emotional; I think all you have to do is reflect on the purpose of the death penalty, on its function, on its justice.”

Thursday’s decision was welcomed by State Deputy Atty. Gen. Jeffrey J. Koch.

“Theodore Frank is an absolute monster,” he said. “This is a case where the punishment surely fits the crime.” Koch said Frank still may raise time-consuming appeals in the federal courts--and that it could still be a long time before Frank goes to the gas chamber.

State Deputy Public Defender Kent Barkhurst said Frank would seek a rehearing before the state high court, and if that fails, appeal to the U.S. Supreme Court. Barkhurst expressed hope that the notoriety of the case would not influence the courts, but added:

“This was a high-profile case and the tenor of the times sometimes has an effect on the courts in general.”

Ventura County officials involved in the Frank case expressed jubilation Thursday at the Supreme Court’s decision.

“I’ve never had much interest in watching an execution, but I want to be there when Frank is executed,” Dist. Atty. Michael D. Bradbury said.

“This man deserved to die for what he did to this little girl,” Bradbury said. “Can you think of the terror that a little girl goes through in a situation like this?”

Bradbury said he had expected the Supreme Court to uphold Frank’s death penalty, but said the 7-0 decision came as a surprise.

Justices Stanley Mosk and Allen E. Broussard have often opposed the death penalty in previous cases, and Bradbury said their attitude during oral arguments led him to believe that they would do the same for Frank.

Bradbury recalled telling the first prosecutor who handled Frank’s case 12 years ago to carry a picture of Amy Sue Seitz’s mutilated body with him at all times.

The original prosecutor, Irving Prager, said Thursday that the horrors of Seitz’s death burned him out and drove him to quit the Ventura County district attorney’s office for a teaching position soon after the trial ended.

“The case did a lot to everybody who had anything to do with it. It was one of those crime-of-the-century things,” said Prager, now assistant dean of the La Verne University School of Law.

“When you’re a prosecutor and an adult person gets shot, killed, believe it or not, it’s something you really get used to,” Prager said. “You feel sorry for the victim of course, but you don’t feel, ‘Oh my God, how horrible.’ But as much as we can become accustomed to that, when we have the murder of a 2 1/2-year-old girl, it shocks the most hardened person.”

Prager said he spent the entire year after Frank’s first conviction working with the victim’s grandmother, Patricia A. Linebaugh, on legislation to toughen child molestation laws and lobbying to get it passed.

The Legislature eventually used the laws to abolish the Mentally Disturbed Sex Offender program that had released Frank from Atascadero State Hospital.

Cases such as this justify the death penalty, Prager said. “We all talk a lot about whether it’s right or wrong to kill Theodore Frank, but we put aside what’s even more important--the killing of Amy Sue Seitz,” he said.

“Remembering who the victim is, how badly the victim was treated, is something that’s very important, I think. Not so we just simply get angry and say, ‘Kill the son of a bitch,’ but more so we understand what it’s all about, and what it’s all about is the victims who were so horribly killed.”

Former Superior Court Judge Byron McMillan, who presided over Frank’s initial trial in Orange County after a change of venue in 1980, also expressed satisfaction on hearing of the high court’s ruling.

“That’s nice,” he said. “That old soft-touch theory--’We can shrink these guys, just give us all your molesters, we’ll heal them and turn ‘em loose again’--it was proven very, very wrong. It’s a real sad thing that Teddy was running around. He never should have been.”

Frank was initially convicted and sentenced to death in 1980 in Orange County after the case was transferred there from Ventura County. Five years later, the state Supreme Court upheld Frank’s conviction--over Bird’s lone dissent--but voted 4 to 2 to reverse the death sentence. The justices found that police had improperly seized a diary that later was cited to jurors in the prosecution’s demand for a death sentence.

The writings, made by Frank when he was hospitalized years before the murder, included a passage that said: “I want to give pain to these little children. I want to molest them. I want to be sadistic. I want to harm them.”

Two years later a penalty retrial was held--this time without evidence from the diary--and a jury again returned a verdict of death. Linebaugh, the victim’s grandmother, appeared at the sentencing hearing to urge another Superior Court judge, John J. Ryan, to uphold the verdict and impose death, rather than the alternative of life in prison without parole.

Ryan, saying he was basing his ruling solely on the evidence presented to the jury, acknowledged that Frank’s turn to religion and transformation into a model inmate at San Quentin State Prison weighed in his favor. But the judge held that the brutal circumstances of the crime still required a sentence of death.

Philip Hager reported from San Francisco and Mack Reed from Ventura.