The first day of a hearing for Mark Carver, who is serving a life sentence after he was convicted of the 2008 murder of a UNC Charlotte student, was full of questions about his intellectual ability.
While examining medical records from Carver’s years in prison, Gaston County District Attorney Locke Bell pointed out that Carver played card games with his fellow prisoners.
The retort from Carver’s lawyer, Chris Mumma, came quickly on the next round of questioning: Is Go Fish a card game? It is.
A 2016 psychological evaluation found that Carver had an IQ of 61 and the reading level of an average first-grader, according to testimony in court Tuesday. He was given a tentative diagnosis of mild intellectual disability at that point.
Mumma, executive director of the NC Center on Actual Innocence, argues that Carver’s disability made it impossible for him to kill Ira Yarmolenko or to participate in his own defense during his 2011 trial.
Evidence about his mental or physical disabilities, including issues with his wrists, was not presented in the trial, she said, and she hopes it will help prove Carver’s innocence.
Carver and his cousin Neal Cassada had been fishing near where Yarmolenko’s body was found on the banks of the Catawba River. Cassada died of a heart attack just before his trial.
Mumma said she also plans to prove that DNA evidence presented in the first trial does not stand up to modern testing. In her opening statement, she ridiculed the idea that Carver is a criminal mastermind who killed Yarmolenko and left behind little evidence.
“He has the IQ of a first-grader,” she said. “A first-grader can’t do anything without leaving evidence behind.”
Mumma said Carver’s mental ability gives new context to a video clip of a questioning session, when a detective gestured to ask Carver if the victim was a particular height and Carver mimicked the gesture.
“The detective said ,‘She was about here, right?’ and Mark says yes because he says yes to everything, and then the detective says, ‘Stand up and show me,’ and Mark does exactly that,” she said.
Carver was evaluated in the first percentile — meaning 99 percent of people are more capable than he is — in verbal comprehension, working memory and processing speed, Boone psychological associate Ashley McKinney testified. That would make it hard for him to keep up with the detective’s rapid questioning, she said.
During cross-examination of McKinney, Bell presented pages from Carver’s prison medical file, which said he did not show intellectual disability and was tested with a slightly higher IQ in another version of the test. The prison IQ results of 68 and 73 are still low on a test where the average is 100.
Bell emphasized that Carver lived independently, kept up with his own medication and drove his daughters to and from school every day. He said those responsibilities show he was more capable than McKinney’s testimony indicated.
In addition to card games, Bell said Carver played Monopoly in prison. He argued that the board game, which is rated for ages 8 and up by its manufacturer, shows Carver had an understanding of banking, prices and money.
Shaking his head, Carver himself appeared to disagree when Bell said Carver understood money well enough to discuss car insurance costs with police after his arrest. Attorneys’ faces on both sides showed clear disagreement, even frustration, as the day wore on.
The hearing, which is expected to last two weeks, is unlikely to become less contentious.
“I have a very good feeling that no matter what I do in this case, it’s gonna be appealed,” Superior Court Judge Christopher Bragg said.