Death by the River

Death by the river: The defense Mark Carver never got

Family and friends of Mark Carver leave the Gaston County courthouse on March 21, 2011, after a jury finds Carver guilty of first-degree murder and sentences him to life without parole.
Family and friends of Mark Carver leave the Gaston County courthouse on March 21, 2011, after a jury finds Carver guilty of first-degree murder and sentences him to life without parole. rlahser@charlotteobserver.com

Story so far: Prosecutors present their case in Mark Carver’s first-degree murder trial. Despite DNA evidence, defense attorneys are confident he will go free.

When Mark Carver’s attorneys announced they would present no evidence and call no witnesses, a stunned silence settled over the Gaston County courtroom.

“I was so mad,” his cousin Michael Poindexter told me. “The man’s life is at stake. Why didn’t they put up more of a fight?”

James Beatty still wonders five years later why nobody asked him to testify.

Beatty and his brother were leaving Food Lion in Mount Holly around 1:30 p.m. on the day Ira Yarmolenko died, May 5, 2008, and a lifesaving crew passed by towing a boat. They suspected someone had drowned in the Catawba River.

They took their groceries home, then drove down behind the Stowe Family YMCA to their childhood fishing hole, a deep section of river where a pipeline crosses. They had fished there for nearly 60 years. When the dogwood bloom, Beatty says, the crappies spawn and move into the shallows, where they are easy to catch.

A man was already at the river. They didn’t know his name, but they recognized his face. They had seen him on the Catawba a time or two before.

It was Mark Carver.

‘Like any other day’

Carver had backed his Chevy S10 Blazer down near the water, Beatty tells me, and was sitting on the tailgate, watching his fishing rods, while TV helicopters whirled overhead.

What’s going on? Beatty remembers asking.

I have no idea, he says Carver told him.

Beatty says police officers eventually walked down from out of the woods, and told them someone found a body on the riverbank.

“He was as surprised as we were,” Beatty says about Carver.

Beatty and Carver walked to the water’s edge. “But you couldn’t see nothing down the river and you couldn’t see nothing up the river.”

Beatty says he talked with Carver for as long as an hour that afternoon, mostly about fishing and family. “He had a shoebox in his car full of pictures of all the carp he had ever caught,” Beatty says. “He showed me pictures of the different places he’d been fishing.”

“It was like it was just any other day,” Beatty tells me.

I ask: “Was Carver agitated?”

“He wasn’t agitated.”

“Was he wet?”

“He wasn’t wet.”

“Was he muddy?”

“He wasn’t muddy.”

“Was he bloody or scratched?”

“He wasn’t bloody or scratched. He was as neat as can be.”

Beatty often thinks about the way Carver acted that afternoon. He thinks about what Carver was convicted of doing just an hour or two before, killing a young college student in a violent struggle.

The two images are difficult to reconcile.

Police questioned Beatty a couple of times, he says, even swabbed his cheek for DNA to rule him out as a suspect. Although defense attorneys knew Beatty talked with Carver, he says he never heard from them.

Challenging the DNA

Carver’s attorneys told me they thought the state’s case was so weak, they didn’t need to counter with their own evidence and witnesses.

Brent Ratchford did hire a forensic scientist to examine the DNA data. Ratchford said the scientist told him the testing was performed according to guidelines.

Because of that, the defense attorneys concluded Carver was lying. He must have touched the car.

They speculated that Carver assumed the car was stolen and walked over with his cousin to check it out, Carver looking in from the driver’s side and Neal Cassada from the passenger’s side. Then Carver saw Ira’s body, the attorneys speculated, and the men ran off, afraid of being implicated.

However, there are other possible explanations for the DNA evidence.

One is that Carver’s DNA could have gotten on the car through what is known as “secondary transfer.” If someone came into contact with Carver and then touched the car, his skin cells could transfer.

Another involves the laboratory interpretation. In 2010, the year before Carver’s trial, guidelines changed for interpreting touch DNA mixtures.

Criminal lawyers I talked with all stressed how crucial it would be for jurors to hear from a forensic expert about potential weaknesses in the DNA evidence.

Touch DNA was an unproven science then and, in many ways, still is.

What the jury didn’t hear

I learned recently that some of the most damning testimony against Carver – which the judge called the turning point in the trial – was misleading.

Detective Derek Terry told jurors that he sat in on an interrogation of Carver by SBI agent David Crow. Terry said Carver described Ira as “a little thing,” and stood up and demonstrated how tall she was with a gesture of his hand.

After Terry’s testimony, Judge Timothy Kincaid said, the change in the courtroom felt palpable.

But Terry never explained – and defense attorneys never asked at trial – about what had happened earlier during the interrogation. According to Chris Mumma of the N.C. Center on Actual Innocence, who now represents Carver, this is what a video shows:

It was Crow who first referred to Ira as “a little girl,” several times, and then said she was “a little ole bitty thing” and “wasn’t real tall.”

Then Crow himself stood up and gestured with his hand in front of his eyes. He turned to Carver and asked:

“If y’all was standing up, looking at each other … she’d be looking you in the eyes?”

“Yeah, about there,” Carver said.

Carver is 5 feet 4. Ira was 5 feet 3.

Crow told Carver to get up and show him.

Carver stood and, as directed, held his hand at the top of his eyes and said, “Probably about right there … I guess, and I don’t know … I just … I guess.”

Understanding the context – that the SBI agent described Ira first, demonstrated how she would look Carver “in the eyes” and then asked Carver to show him – suggests another explanation for why Carver indicated how tall Ira was:

The agent prompted Carver, and Carver mimicked the gesture.

Revelation shocks trial judge

When I call Judge Kincaid and tell him about the context behind Terry’s testimony, he is silent for a moment. “That shocks me,” Kincaid says. “That might have made a difference to the jury. It sure could have. Wow.”

[Read what the jury heard, and what they didn’t hear.]

The decision not to play the video, he says, could be grounds for a claim of ineffective assistance of counsel. “Would it have made a difference?” Kincaid asks. “That’s the million dollar question.”

If successful, Carver’s conviction would be vacated, and he would get a new trial.

Other possible witnesses

There was other evidence the defense attorneys could have presented but didn’t.

They didn’t call a medical doctor to the witness stand to explain whether Carver and Cassada, both disabled, could physically have done everything prosecutors claimed – strangle Ira, push her car down the embankment, then drag her body in and out of the river.

They didn’t hire a sound expert to determine whether the men could have been standing 100 yards away and not have heard Ira’s car crash. Carver and Cassada said they didn’t.

They didn’t bring in a professional photographer to point out that the counter on a 35 mm film camera is designed to reset to zero when film is removed. A detective testified that the film was missing from Ira’s Canon camera, but there were two exposures showing on the counter, implying that she took two pictures and the fishermen removed the film. Police found the camera in the trunk of her car but no DNA on it.

The defense attorneys also didn’t bring in an expert to challenge the prosecution’s theory that the men pushed the car down the embankment. A collision reconstruction expert with the N.C. Highway Patrol testified that the ignition had to have been off when the car crashed because the airbag didn’t deploy.

A reconstruction expert I talked with said that’s not necessarily so. Because the seat belt was engaged and the car was traveling slowly, the computer system might have calculated that the airbag wasn’t needed. The ignition, he said, could have been on.

Carver’s attorneys had a different strategy.

A gamble by the defense

By not presenting evidence or calling witnesses, they would get the last closing argument before the jury. They gambled that having the final word would be enough.

“When we made the decision to not call anybody, we thought, ‘Wow, this thing is so sketchy, there’s no way 12 people are going to be able to go back there and say we know that he touched that car and killed her,’ ” Ratchford said.

If the attorneys had presented their own case, they would have had to decide whether Carver should testify. They worried he would get so confused, his testimony might backfire.

“No matter how many hours we prepared Mark for his testimony, he would have gotten crucified,” Ratchford said. “Because they were going to ask him questions he couldn’t explain. He’s a simple man. I think he would have been made to look terrible.”

[If Mark Carver didn’t kill her, how did Ira Yarmolenko die?]

Jurors deliberated about five hours before finding Carver guilty. Kincaid sentenced him to life in prison without parole.

Carver looked dazed as deputies led him from the courtroom. “I cried in the holding cell,” he recalled last month. “I didn’t expect them to find me guilty. I was hurt bad. I couldn’t believe what was going on.”

If it takes me being called a bad lawyer, I’m fine with that, if that’s what it takes to get him a new trial.

Trial attorney Brent Ratchford

For the past five years, Ratchford says, he has agonized over the trial.

When I ask if he feels responsible for Carver being in prison, he chokes up.

“Absolutely,” he says. “This is the case that haunts me.”

If he could do it over again, he would try it very differently.

“I feel like I failed Mark.”

Leland: 704-358-5074

Coming Friday: Cold-blooded killer? Or innocent man?

Did Mark Carver kill Ira Yarmolenko?

Series box

Sunday: ‘A body’s laying there’

Monday: Search for her killer

Tuesday: A break in the case

Wednesday: ‘They got you’

Today: The defense Mark Carver never got

Friday: Cold-blooded killer? Or innocent man?

About the story

Elizabeth Leland interviewed investigators, lawyers, witnesses, medical experts and forensic scientists. She talked with members of Mark Carver’s, Neal Cassada’s and Ira Yarmolenko’s families – as well as some of Ira’s high school and college friends. Many people agreed to talk for background purposes only.

With photographer Todd Sumlin, Leland retraced Ira’s last steps by the Catawba River and interviewed Mark Carver at Mountain View Correctional Institution in Spruce Pine.

Additional information came from hundreds of pages of court documents, police reports, trial transcripts and forensic science articles as well as from photographs of the death scene and evidence presented at trial. Researcher Maria David conducted online criminal record checks.

The trial prosecutors declined to be interviewed. Gaston County District Attorney Locke Bell answered questions a year ago but declined last month to talk about developments. SBI agent David Crow did not respond to multiple requests for an interview. Detective Derek Terry talked about the case in 2014 but declined all future requests.

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