After having his conviction overturned for the 1991 death of Gary “Hop” Summar, and after spending 28 years in prison for a crime someone else confessed to, a Solano County Judge dismissed information that was used against Bob Fenenbock in the trial that convicted him.
According to the courtroom minutes from Solano County Superior Court on Aug. 24, Judge Carlos Gutierrez ruled that Fenenbock did not receive a fair trial and that a Sheriff’s sergeant had coerced a young boy to falsely implicate him.
The decades-old case has a long list of characters, ranging from the victim, Summar, to Bernard MacCarlie, who confessed to the murder, to investigating Sgt. Dan Kartchner to Randy Hogrefe, a then 9-year-old boy (who is now 38).
According to records from the United States District Court, Eastern District of California, nine people, Robert Bond, Bernard MacCarlie, Leafe Dodds, Ernest Knapp, Anthony Lockley, Barbara Adcock, Cherri Frazier, Sue Hamby and Fenenbock were charged in December 1991 and October 1992 with various crimes relating primarily to the death of Summar.
As of last year, MacCarlie, Anthony “Tex” Lockley and Barbara Adcock were still in prison. Fenenbock was released on his own recognizance last year when his murder conviction was overturned.
Trinity County District Attorney Donna Daly inherited the case and said last year that her office may press for a retrial if an appeal by the State Attorney General’s Officer were to fail. Daly died in a car crash in Shasta County last month.
Interim District Attorney David Brady was in court for the reading of Judge Gutierrez’s decision.
On his behalf
“The Innocence Project filed this motion on Sept. 13, 2019,” the minutes state. “Their argument is that the defendant has spent the last 28 years incarcerated for a crime he did not commit. The Trinity County District Attorney’s Office seeks to retry the defendant based on the same evidence.”
Innocence Project attorneys asserted that Fenenbock was convicted and jailed not for the murder, but because of government conduct egregious enough to prejudice his constitutional rights.
“Trinity County proceeded to trial on defendant’s case based largely on the testimony of then 9-year-old Randy [Hogrefe] (who) has since sued Trinity County, claiming they coerced his statement in the defendant’s conviction,” the minutes state. “And this court, Solano County Superior Court, held a hearing regarding the evidence of innocence that was unavailable at defendant’s trial, namely that Mr. MacCarlie confessed that he alone stabbed Mr. Summar.”
In August 2019, a Solano County Judge found that McCarlie’s testimony would likely have changed the outcome in Fenenbock’s trial and ordered another trial. The Trinity County DA’s Office asked that the retrial be transferred back to Trinity County.
“The Innocence Project argues that because the State originally fabricated and relied upon false evidence and now seeks to retry the defendant using the same evidence — this is three decades later — it amounts to outrageous government conduct,” the minutes state. “On Oct. 4, 2019, the Trinity County DA filed an opposition to the motion. It essentially argues that the jury had all the same evidence before it that the Court has now and still convicted the defendant, and that the current issues have been previously litigated by other courts and found to be meritless.”
The Innocence Project contended that evidence showing Sgt. Kartchner coerced Hogrefe had not been heard in another court and that if they had, it would have changed matters. Over five days the court heard testimony from Sgt. Kartchner and Hogrefe.
“The individuals that were involved in the investigation of this case, in the Court’s view, all in one way or another were Trinity County officials,” court minutes state. ”And they are: Officer Palmer, Sgt. Kartchner, Donna Gordon, Sally McFall.”
According to court minutes, “All of these individuals interviewed or gave or assisted in giving [Hogrefe] a certain narrative of what they believe occurred in the killing of Hop Summar Oct. 2nd of 1991.”
A boy’s testimony
According to the Court minutes, Sgt. Kartchner knew 9-year-old Hogrefe to be a “street smart kid,” quote, unquote, “A smart aleck.” However, after reviewing audio tapes of the interviews between Hogrefe and Kartchner, the court disagreed, saying he was manipulated by authorities.
“Sergeant Kartchner’s testimony in this case is as follows: He testified that an interview technique that he uses is to lie not only to adults, but also to children, that he referred to suspects, he didn’t refer to witnesses. And he testified that he does this in order to break down a person’s story. He, that is, Officer Kartchner, acknowledged he participated in POST (Police Officer Standards and Training) training prior to October 18th when he first interviewed [Hogrefe].” Sgt. Kartchner testified that he was aware of kid’s suggestibility issues and admitted to some pressure and prodding during the interviews.
“He testified at the trial that in interviewing children, he did not want to implant memory in them, and he was trained not to do so, which refers to suggestibility. We know that from the POST standards in existence at that time that leading questions in interviewing children could be a problem because of suggestibility. The POST standards indicate that the children are not to be given positive reinforcement, that an officer in interviewing the child should not reveal any information in regards to the case and should avoid prodding to avoid pressure and coercion.”
Court minutes say Sgt. Kartchner was aware of protocols when he interviewed Hogrefe in 1991.
“And when he interviewed [Hogrefe], initially, near the trailer park at the top of the hill, [Hogrefe] tells him about the altercation that he observed where MacCarlie put a knife to Bert Jones’s neck, and that is something that [Hogrefe] testified to at this hearing, that he recalls that,” court minutes state. “Dr. Clark testified that after review of numerous materials in the case, primarily, the trial testimony and interviews of [Hogrefe] by Sergeant Kartchner, by Miss Gordon, and Miss McFall, he opined that they used questioning techniques that were suggestive, leading, coercive, and grossly inappropriate, and they are known to cause false memories which, in this case, caused [Hogrefe] to be unreliable and caused him to be a more compelling witness based on, as Dr. Clark indicated, those false memories.”
Court minutes say Dr. Clark’s testimony could not be refuted by the DA’s office or through cross-examination.
“On Oct. 9, 1991, Sergeant Kartchner, the lead investigator, interviewed [Hogrefe]’s mother, Barbara Adcock, and he was attempting to get Miss Adcock to confirm that [Hogrefe] went up in the white Ranchero at the time of the confrontation between MacCarlie and Hop Summar. Miss Adcock confirmed that [Hogrefe] went in the white Ranchero to take ‘the Bobs’ home, Fenenbock and Redbeard Bob [Bond],” court minutes state. “Sergeant Kartchner tells when Miss Adcock was trying to confirm to him that [Hogrefe] went at a different time, not when this confrontation took place, Sergeant Kartchner indicates that all these people, including your son, is going to say that what happened with Hop and that he was taken up to the campsite by -- in the white Ranchero with individuals, including [Hogrefe]. We know that this was not true.”
The court also found that the version being given to Hogrefe’s mother was untrue and was also given by her during testimony.
It was further determined that Sgt. Kartchner told Hogrefe details about the murder that he denied seeing happen.
The story, reviewed
Minutes state that in the court’s view, Sgt. Kartchner lied while testifying under oath in the first trial. Sgt. Kartchner even took Hogrefe to the murder scene, showed him drag marks and a bloody knife.
Donna Gordon was along with Sgt. Kartchner and Hogrefe at the crime scene as well as on a drive back with Hogrefe.
“When they’re up at the crime scene, [Hogrefe] doesn’t give any information regarding about what allegedly had occurred. Donna Gordon on the ride back — it is a 45-minute ride — is talking to [Hogrefe] and tells him, why don’t you pretend you are the detective. She says, you hear what Sergeant Kartchner is telling you. Try to put the pieces together. And why would she do this? What was her motivation? And [Hogrefe] finally follows along and gives a pretend story,” court minutes state. “Gordon calls Sgt. Kartchner and Sgt. Kartchner then arrives and interviews [Hogrefe]. Again, during this interview, [Hogrefe] indicates that he’s play-acting as to what may have occurred. During the session, [Hogrefe] says several times that he was just making this up.”
According to court minutes, Hogrefe learned of Summars’ death when Sgt Kartchner told him and that he’d read details of the murder in the local newspapers.
Therapist Sally McFall interviewed Hogrefe in 1991 and was told that he didn’t see anything and learned about the murder from the police.
“On May 19, 1992, during a therapy session, this was the eve of Mr. Fenenbock’s preliminary hearing and Miss McFall is going over the testimony that [Hogrefe] is about to give at the proceeding. Miss McFall tells [Hogrefe] that he needs to put Fenenbock in jail, that he and his family will be at risk, that he needs to put bad, evil men in jail,” Court minutes state. [Hogrefe] tells Miss McFall that he doesn’t remember who he saw stab Hop. Miss McFall tells him — she says, are you absolutely, positively sure that these people murdered this man? And that is -- again, [Hogrefe] says he doesn’t remember, that he saw the stabbing of Hop. He says he doesn’t know what makes him think that these four were the ones who murdered Hop. He says he doesn’t know if he is absolutely sure.”
The court referred to McFall’s coaching, saying that answers like “I don’t know,” will result in Fenenbock getting out of jail.
“We know, although [Hogrefe] at 9 years old didn’t know, but we know that [Hogrefe] did not have an attorney at that time, as far as I could tell. The district attorney is not [Hogrefe]’s attorney. But it seemed that that’s what was, again, told to [Hogrefe] by Miss McFall,” court minutes state. “She said, you have to tell him what happened, not that ‘I don’t know.’ These directives by her, especially keeping bad men in jail, these have a long-lasting effect on [Hogrefe], even to this day.”
What he recalls
An evidentiary hearing was later conducted to hear testimony from Hogrefe.
“The Court heard [Hogrefe]’s testimony. And, initially, it appeared that [Hogrefe] was not adding anything to the proceedings. But a careful review of the transcript of his testimony reveals, in this Court’s view the following: [Hogrefe] does not currently have a memory of seeing Hop Summar stabbed. [Hogrefe] states he does not even — he did not ever have a memory of Hop being stabbed. [Hogrefe] remembers going over his testimony over and over and over with several people, some of whom he thought were lawyers. And we know that at least one of those ‘lawyers,’ quote, unquote, was Miss McFall.” Court minutes state that Hogrefe was told his answers in testimony could not deviate and had to be presented a certain way.
“He was also told, if you don’t testify this way, these people are going to get out of jail. And he says that this scared him. He was told these people getting out of jail are going to kill you, and he was scared. And he testified he’s still scared for himself and his family,” Court minutes state. “This tremendous pressure on a 9-year-old which still exists 30 years later is an unimaginable pressure which amounts to coercion.”
Hogrefe did recall the conflict between McCarlie and Bert Jones, and the court found it relevant that he did not recall seeing Summar killed. The court also looked at evidence surrounding vehicles used by involved parties and the lack of physical evidence on them.
“So the question now is … is this an overzealous officer? Is it overzealousness or is it extreme outrageous conduct by Sergeant Kartchner i.e. the District Attorney’s Office?” the court asked.
Case law deemed it a violation of due process to use a child’s testimony because of their age and susceptibility to influence. Court minutes indicated there is evidence that Sgt. Kartchner used overbearing tactics and deception to elicit Hogrefe’s testimony.
“The Court finds that the version of events that was that memory that was implanted into [Hogrefe]’s mind undermines any credibility by Sgt. Kartchner,” court minutes state. “The second step is whether the government conduct constitutes outrageous conduct in the constitutional sense of violating the defendant’s due process rights. And the Court acknowledges that the rights of both the prosecution and the defense have to be taken into account. And most of the decisions that have included a decision of outrageous government conduct have occurred when dealing with an attorney-client relationship.”
The court then asked if the conduct was so outrageous that it deprived Fenenbock of a fair trial.
“The Court finds that, in this case, based on the evidence presented, the evidence that would be used in a retrial, with the exception of the additional evidence that we now know that MacCarlie testified that he and he alone committed the murder, retrying Mr. Fenenbock on this evidence that … there was instances of untruths, lies, deception, coercion on the part of Sgt. Kartchner,” court minutes state. “To implant a memory in a 9-year-old child that, in the Court’s view, is such conduct that is grossly shocking, it’s outrageous, and it violates the universal sense of justice. So the Court finds and concludes that the prosecution’s conduct denied the defendant a fair trial and he would be prevented from obtaining a fair trial in the future if he were to be retried, thus the Court dismisses the information against Mr. Fenenbock.”
Still hard to believe
By phone to this paper from Hilo, Hawaii, Monday afternoon, Fenenbock seemed as pensive as he was happy.
“I’m home,” he said. “For the first time in 30 years, I might add.” He said he lived there before he came to Trinity County, and his family has some property there.
Asked what it’s been like for 28 years, Fenenbock said he has felt every imaginable emotion, including rage at a sentence for which he felt the prosecutors had no evidence.
“I knew what they did this whole time,” he said. “I went through every emotion and thought except giving up -- the one thing I didn’t do was quit.”
Asked what he planned to do with the rest of his life, Fenenbock recalled what he did before being imprisoned.
“Well, I was growing pot and sniping for gold before. That was my big crime in life,” he said. “If I did it now, I would be legal, but my family is my biggest concern now.” Fenenbock said his sister is that family, as most of his relatives died while he was in prison. His parents were among them.
“I didn’t get to bury them,” he said. “They literally stole my life.” Fenenbock said his existence now revolves around his four daughters.
“My daughters were raised without me but now we have a great relationship,” he said. “I’m amazed … I’m just getting to the point where I actually believe I’m here. I made it through all that and I learned the law and I am home.”
Asked if he had any plans for legal recourse, Fenenbock paused and chuckled.
“You mean me getting paid for what they put me through? I’ll do everything possible,” he said. “I want more than they can pay. Money can’t pay for what they took from me. They literally stole my whole family from me…”
Fenenbock recalled the moment Judge Gutierrez read the ruling above.
“The beautiful part, the judge looked me right in the eye when he read that. I almost passed out,” he said. “I’ve been screaming those words at prison walls for the last 28 years. It’s amazing. I never thought I would hear that.”
Asked if he would like to say anything to the community, Fenenbock paused before saying the people in power at the time knew what they were doing and spent three years molding a child to testify against him and ultimately convict him. However, the ruling dismantles the reasons for his conviction.
“For 28 years, I was ‘the guy who slaughtered a disabled man’ when I had nothing to do with his death,” he said. “To tell you the truth, I have dreamed of seeing my name in the Journal saying that Hop wasn’t a child molester and that I wasn’t responsible for his death and that Dan Kartchner put the whole story together.”
Saying he never thought he would outlive his sentence, Fenenbock said no one can understand what it’s been like for him.
“No one has any idea unless they’ve done it and survived — no one can know. I’m 67 now; literally stole my life,” he said.
“The last thing the judge said to me was ’You are free and you may go…’”