What may be Mark Carver’s last chance for freedom in his disputed conviction in the murder of UNC Charlotte student Irina Yarmolenko will hinge on a Sept. 25 hearing in the courthouse where he was convicted.
And the 48-year-old Gaston County man will be on hand to watch.
During a sometimes acrimonious two-hour hearing, Union County Superior Court Judge David Lee set the fall date to hear defense arguments that Carver was wrongfully convicted. The judge repeatedly expressed exasperation as the opposing sides renewed long-running arguments over the sharing of evidence,
Defense attorney Chris Mumma said that she will prove Carver received an inadequate defense, and that the DNA evidence used to convict him will not stand up to updated testing and reporting techniques – improvements that the state lab “consciously chose” not to employ during Carver’s trial. Had the lab used new protocols, she said, testing results that showed Carver’s DNA was part of a mixture found on Yarmolenko’s car would have been undermined. At the very least, Mumma said, Carver’s jury would have known that more exacting tests were available.
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“My expectation is the same as it has been ... At a minimum, Mark Carver deserves a new trial,” said Mumma, executive director of the North Carolina Center for Actual Innocence. “Most appropriate for justice, in my mind is that the charges should be dropped and he should not be retried.”
Gaston County District Attorney Locke Bell told reporters after the hearing that the case “should be tried in the courtroom and not in the media.”
“We will follow the law. He was convicted. The DNA was very clear. It was his DNA,” Bell said.
Carver is serving a life sentence without parole after his 2011 conviction for strangling Yarmolenko in 2008. Her body was found near her car in Mount Holly, on the banks of the Catawba River. Carver and his cousin were fishing downstream at the time. The cousin died the day before his murder trial was to start.
Last year, the Observer published “Death by the River,” a six-part series raising questions about Carver’s guilt. In December, his defense team filed a request that the charges be dropped or Carver receive a new trial.
The two sides have been battling over evidence ever since. More than two months after Lee ordered both sides to abide by state law and share key information in the case, the debate over who’s hoarding what still pulsed through Monday’s hearing.
Last month, Mumma asked Lee to hold Bell in contempt of court for failing to turn over promised material – an allegation she repeated during Monday’s hearing. She dinged the prosecutors for not turning over their work files from the original trial, as well as Yarmolenko’s emails, the contents of her phone and other information Mumma says she needs.
Bell and Assistant District Attorney Stephanie Hamlin, who helped convict Carver six years ago, countered that Mumma has not produced a waiver that will allow them to collect Carver’s physical and emotional medical records, which they said are key parts of Carver’s new defense. They also pressed the defense team for the list of expert witnesses they expect to call.
Much of the day’s arguments surrounded DNA. Lee had earlier ordered the district attorney to turn over DNA samples to the state crime lab for retesting under the improved methods. Mackenzie DeHaan, the lab’s DNA technical leader, told the judge Monday that the facility is no longer set up to do that.
Mumma questioned DeHaan on why the new testing guidelines for DNA mixtures announced in 2010, before the start of Carver’s trial, did not go into place until 2013. DeHaan said the guidelines had to be thoroughly tested by the crime lab before they could be used, and that the previous methods were scientifically sound.
At times the back-and-forth turned biting. When it came to DNA samples that five investigators in the murder case voluntarily agreed to give, Bell said the officers did not trust Mumma or her DNA experts to handle the samples properly. The prosecutor also cited Mumma’s disciplinary hearing in 2016 for allegedly taking a water bottle with DNA evidence from the home of two murder suspects in a case that led to charges being dropped against the original defendant after 40 years behind bars. Mumma was admonished by the bar for her actions, the minimum punishment allowed.
Outside the courtroom, Mumma said she was “very disappointed” Bell had alluded to the bar matter.
At various points during the hearing, Lee promised he will punish the guilty parties if the sharing of evidence is still being disputed in September. And he expressed growing frustration at the charges and counter-charges.
On several occasions, the judge singled out Bell, saying the prosecutor carried the greater responsibility in the exchange of information.
“This back and forth ... I’m getting pretty short-tempered about that,” Lee said.