gavel.jpgThe death sentence of a San Francisco man who tortured, stabbed and murdered a graduate student in 1985 was upheld by a federal appeals court Tuesday.

Robert Fairbank, now 58, was convicted and sentenced to death in San Mateo County Superior Court in 1989 for the murder of San Francisco State University graduate student Wendy Cheek, 24.

Cheek disappeared on Dec. 12, 1985, and her body was found near the Crystal Springs Reservoir in San Mateo County two days later. She had been beaten and stabbed and her body was partly burned.

At the time, Fairbank had been accused of sexually assaulting another woman in his San Francisco apartment a week before Cheek disappeared and had been freed on his own recognizance by a San Francisco trial judge.

In his San Mateo County proceeding, Fairbank pleaded guilty after two days of trial to first degree murder with special circumstances of attempted oral copulation and torture.

The trial then proceeded to the penalty phase and the jury returned a death sentence.

Fairbank appealed in the federal court system with a habeas corpus petition after the California Supreme Court unanimously upheld his conviction and sentence in 1997 and rejected his state habeas corpus petition in 2003.

In Tuesday’s ruling, the 9th U.S. Circuit Court of Appeals rejected Fairbank’s claim that his trial lawyer was incompetent in failing to offer mitigating evidence of possible brain damager, drug addiction or childhood abuse that might have persuaded the jury to choose a sentence of life without parole instead of death.

A three-judge panel of the appeals court said Fairbank’s defense lawyer made a reasonable strategic decision to try to portray Fairbank as someone who accepted responsibility for the crime.

“His counsel investigated the available mitigation defenses and made strategic choices as to evidence presentation,” wrote Circuit Judge Sidney Thomas.

Fairbank is now closer to completing all possible appeals, but still has the options of appealing to an 11-judge panel of the circuit court and to the U.S. Supreme Court.

Julia Cheever, Bay City News

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