This story was updated Monday afternoon to add comments from Gaston County District Attorney Locke Bell
Mark Carver’s fight for a new trial has been delayed by a new controversy, this one involving how his complete defense file wound up with his prosecutor.
In a court filing last week, defense attorney Chris Mumma said the material supplied to Gaston County District Attorney Locke Bell includes privileged information Bell should have never received. She said the material is pertinent to her client’s appeal of his 2011 murder conviction.
According to the new defense document, Bell received the files from Brent Ratchford, who defended Carver when a jury found him guilty of the 2008 strangulation of UNC Charlotte student Irina Yarmolenko. Carver is now serving a life sentence.
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Mumma, executive director of the N.C. Center for Actual Innocence, filed an appeal last December to have the charges dropped or to get her client a new trial – based in part on what she claims was Ratchford’s ineffective defense.
Now, she’s claiming that Ratchford may have compromised his former client’s appeal when she says he improperly – and perhaps illegally – turned over his files to Bell.
In a filing to Superior Court Judge Christopher Bragg, Mumma said she’d been seeking some of the documents in question since 2009 but was repeatedly told by Ratchford that he did not have them.
What Ratchford turned over to prosecutors “far exceeds what he has previously provided the defense,” Mumma said in a July e-mail to the court.
According to Mumma, Ratchford notified her in June that he sent Carver’s file to Bell because the district attorney had asked him for it. Bell later shared it with the defense.
In her filing, Mumma said she “again explained to Mr. Ratchford that the law does not permit him to provide his entire file to the state.” She has now asked Bragg, a Union County judge recently assigned to the case, to order Bell to destroy “any paper and electronic copies” made from Ratchford’s files.
Neither Ratchford nor Bell responded to Observer requests for comment on Friday.
Charlotte attorney Rick Kane, who is representing Ratchford, said his client followed the law and that the “overwhelming majority of records” in Carver’s file are not covered by attorney-client confidentiality.
Kane said Ratchford was “simply mistaken” when he earlier told Mumma that he had shared his entire file. That omission “has now been completely cured” by Bell’s decision to share Ratchford’s complete file with Carver’s defense team, he said.
Mumma and Bell have been battling for months over the sharing of evidence in the Carver case.
In a Monday email, Bell said he and Ratchford had exchanged evidence using a procedure approved by the case’s previous judge – a process, he said, that Mumma had not challenged. The prosecutor said the judge had made it clear that Carver’s previous attorneys could turn over as much information as they thought necessary to defend themselves against Mumma’s allegation of ineffective counsel.
“Ms. Mumma’s claiming that something occurred does not make it so,” Bell told the Observer.
This latest furor has left some veteran criminal attorneys shaking their heads over what they see as Ratchford’s potential violation of state law and professional ethics.
Ratchford, they say, was required to share with Bell only the documents he needed to defend against Mumma’s claim of ineffective-counsel. Mumma argues that Ratchford’s files go far beyond that.
Charlotte defense attorney Michael Greene said Ratchford could not release Carver’s file to anyone – much less the prosecution – without Carver’s consent. (Mumma said he did not have it.)
“It’s your client’s case, not your case ... confidentiality doesn’t go out the window,” said Greene, a former Mecklenburg prosecutor. “This is pretty troubling. I think you might have to hold a hearing to learn what (the prosecution) may have been discovered from files they should not have had in the first place.”
Former U.S. Attorney Anne Tompkins said she has never come across another example of a defense attorney turning over a complete file to prosecutors because it would “undoubtedly contain documents and communications that are protected from disclosure to the state.”
Kane, however, said Friday that Carver waived attorney-client privilege when his appeal claimed he had been ineffectively represented during his trial.
“Mr. Ratchford was well aware that to some degree he was turning over information that have previously been privileged, and that the law permitted him to do so,” Kane said in an e-mail to the Observer.
Just when the case will be back in court is unclear. The formal hearing on Carver’s appeal, which was scheduled for late September, has been indefinitely delayed to allow the defense to examine Ratchford’s documents.