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Gaston County D.A. accused of withholding evidence in murder case

Gaston County D.A. accused of withholding evidence in murder case

Defense lawyers are asking a judge in North Carolina to hold Gaston County District Attorney Locke Bell in contempt over allegations that he has failed to release files relevant to the investigation and prosecution of Mark Carver.

Carver was convicted of strangling University of North Carolina student Irina Yarmolenko in 2011 and sentenced to life without parole. A six-part series in April 2017 by The Charlotte Observer surfaced significant questions about Carver’s guilt.

Attorneys for Carver maintain that he is innocent. Bell’s office steadfastly disagrees.

Chris Mumma of the N.C. Center on Actual Innocence, who represents Carver, claims Bell has ignored a court order directing his office to turn over law enforcement and prosecutorial files.

After complaints were made by Carver’s team during an April 2017 hearing, Superior Court Judge David Lee ordered both sides in May to share their files with one another. In her recent motion to have Bell held in contempt, Mumma claims Bell failed to do so. Bell told the Gaston Gazette that all the documents were sitting in his office and that Mumma simply had to come and pick them up. The motion for contempt remains pending.

Yarmolenko was found dead next to her car in May 2008. Carver and his cousin, Neal Cassada, Jr, had been fishing on the day that Yarmolenko’s body was found near the Catawba River.

Carver has repeatedly denied having anything to do with Yarmolenko’s death. Cassada was also charged with murder but died the day before his trial was scheduled to start.

Mumma claims that Carver’s trial attorneys were incompetent in their defense of him, and law enforcement and the state crime lab mishandled and misrepresented evidence. Mumma also claims that the key piece of evidence — “touch DNA” discovered in cells found on three places around Yarmolenko’s car — is most likely tainted and would not withstand more advanced testing.

Transportation rules in Dayton, Ohio are setting people up for jail time

Transportation rules in Dayton, Ohio are setting people up for jail time

On January 16, Markcus Brown was on his way to a job interview when he was approached by a police officer at one of the Regional Transit Authority (RTA) hubs in Dayton, Ohio. Standing next to friends wearing baggy pants and sweatshirts, Brown was asked to show his identification. After declining the request, he was issued a trespass warning that prevented him from returning to the transit center and riding RTA buses for two years. But Brown, who was 20 years old at the time, explained during a recent phone call that he didn’t know he was banned. His signature was also missing from the RTA form that people must sign when they’ve been issued a trespass warning and banned from the premises, according to documents obtained by the Fair Punishment Project.

Allegedly unaware of his status, the 20-year-old went back to the hub in May. Brown was again approached by an officer because “his pants were sagging,” according to an incident report. Once Brown’s name was run through the system, his status was flagged and he was arrested for trespassing.

Brown was locked up in Montgomery County’s jail, where he remained for nine days because he couldn’t pay bail set at $150 (and later increased to $200). With no other option, Brown waited for his mother to scrape together the funds. He told the Fair Punishment Project that during his incarceration, he didn’t get enough food or sleep, shivering in a shared cell each night. Eventually, Brown’s mother was forced to take out a loan to pay for her son’s release.

Not only is Brown’s story a common one, it showcases a wide range of criminal justice issues in Montgomery County: racial profiling by police officers, the perils of privatizing public services, the harsh economic realities of cash bail, and poor jail conditions.

Daniel Durocher, a Montgomery County public defender who represented Brown, says the RTA’s “Rules of the Road” often result in racial profiling that can then lead to an arrest. Although Dayton RTA is the city’s main public transportation system and says it wants to be “a premier public transportation provider that connects people and communities,” it is run by a private corporation that dictates how people should look (“hoodies must be removed upon boarding the bus”) and conduct themselves (“maintain personal hygiene so as not to offend fellow patrons”).

Dayton RTA hires officers from the city police department to patrol its property and enforce its policies. And while people aren’t arrested for violations like wearing baggy pants, swearing, littering, or waiting for the bus for too long (often classified as “loitering”), suspicion of breaking any one of RTA’s rules empowers police to approach them.

“[Officers] start asking questions,” Durocher said. “They use the RTA rules as a means to come into contact with somebody, and once they’re in contact with the person, they’re doing investigative work.” In some instances, police will ask to pat a person down; sometimes they will do so without permission. In effect, law enforcement can use the RTA rules as pretext for their own stop-and-frisk program.

Moreover, during the questioning by police, the wrong answer — or, as in Brown’s case, the unwillingness to answer — can easily set in motion a process that starts with a ban and quickly leads to an arrest for trespassing.

In another case, Durocher recalled, a man was arrested and hauled to jail because the police mistook him for his much younger son. Norman Ferguson, born in 1966, was at the RTA hub when police approached his friend. Ferguson asked the officers why they were talking to her, and the officers ran his name through RTA’s tracking system, Durocher said. Ferguson was flagged as someone who had previously received a trespass warning and been instructed by the company not to come back.

Ferguson remained in jail for 12 days. He ultimately met his court-appointed attorney on the day of his scheduled trial. His lawyer informed the prosecutor that Ferguson’s son, born in 1991, was the one with a trespass warning — not the jailed client.

According to RTA Chief Executive Mark Donaghy, people labeled “trespassers” aren’t detained for long. He also says criminal activity has declined since 2009, when the Rules of the Road were implemented. But according to Durocher, the Ferguson and Brown cases highlight a glaring problem in Montgomery County: trespassing and other types of misdemeanors are contributing to the jail’s overcrowding problem. Judges are setting cash bonds for these minor charges and people like Ferguson and Brown remain in jail because they can’t afford to pay.

“There are so many people being held in jail on nonviolent misdemeanor offenses at any given time,” says Durocher. “That’s a bad use of public resources.”

As a result, those who pose no threat to public safety are languishing in an overpopulated facility riddled with alleged abuses, including racial segregation and the excessive use of force by corrections officials. One video shows a restrained woman pepper-sprayed in the face. In May, a man who did time in 2015 filed a lawsuit that claims he was punched repeatedly and left with a bleeding scalp. He was the ninth person to sue the jail.

Brown was convicted for trespassing in June and sentenced to unsupervised probation. Despite his financial troubles, he was also forced to pay more than $150 in court fees. He’s indefinitely “trespassed,” unable to use public buses for the foreseeable future — a punishment that severely restricts his movement and access to job opportunities. But returning to the hub could mean another three weeks in jail. After taking out a loan and shelling out bail money, his mom is also struggling to get by.

“It really hurt me to know I can’t be able to pay her back without a job,” he told local reporters. “It’s hard.”

Thanks to Jake Sussman.

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Bar complaint filed against former MA Assistant Attorneys General in lab scandal

Bar complaint filed against former MA Assistant Attorneys General in lab scandal

Recently, a Massachusetts judge took two former prosecutors to task for attempting to cover-up the extent of a massive lab scandal that called into question thousands of drug convictions in the state.

Today, a lawyer from the Innocence Project and a Northeastern Law Professor took the rare step of filing bar complaints against those lawyers — Kris Foster and Anne Kaczmarek — previously from the Massachusetts Attorney General’s office. They have asked the State Bar to conduct a meaningful investigation into the breadth of the prosecutors’ misconduct, and to sanction them accordingly.

The trouble began in 2013, when law enforcement discovered that Amherst lab chemist Sonja Farak had used drugs daily while at work — drugs she stole from the lab. According to pleadings, she also “mishandled, contaminated, or fraudulently reported” results in lab paperwork. She pleaded guilty in 2014 to ten criminal counts, including illegal possession, tampering, and theft of narcotics from the lab.

At the time, defense attorneys believed that Farak’s misconduct only dated back to July of 2012 — about four months before her arrest.

That was false. Farak’s malfeasance dated back eight years and affected upwards of 8,000 cases. Foster and Kaczmarek, however, fought to keep the defense lawyers from uncovering this fact. Kaczmarek knew Farak’s misconduct began earlier, but decided not to turn over that exculpatory material to defense lawyers. And although the extent of Farak’s misconduct was apparent in police files, Foster didn’t review them. She did, however,repeatedly tell the court she had done so. Moreover, encouraged by Kaczmarek, she represented that nothing in those files was relevant to any of the defendants’ claims. This false statement meant defense lawyers remained unaware that their clients might have valid claims for new trials. Foster also accused the defense lawyers of engaging in a “fishing expedition.”

It was not until a year later that defense counsel learned that their clients had meritorious claims and should have their drug convictions vacated.

In June of this year, Superior Court Judge Carey lambasted the prosecutors in a written opinion. As described in a previous blog post, Carey ruled that the AG’s office engaged in “intentional, repeated, prolonged and deceptive withholding of evidence from defendants,” behavior that was “egregious and harmful to the administration of justice.” And because the two misrepresented facts to the court, Judge Carey accused them of committing a “fraud upon the Court.” He dismissed six of the indictments before him with prejudice — meaning the Commonwealth could not proceed with prosecutions in those cases.

But little else has happened to the prosecutors. Foster is currently the General Counsel for the Alcoholic Beverages Control Commission, where she has considerable responsibility. Kaczmarek is the Assistant Clerk Magistrate for the Suffolk Superior Criminal Clerk’s Office.

Nina Morrison from the Innocence Project and Daniel Medwed from Northeastern Law School hope that will change. They have asked the state bar to investigate their misconduct, alleging that they violated their duty of candor towards the court, fairness towards the opposing party, their obligation to disclose exculpatory evidence as prosecutors, and their obligation to be truthful in statements to others. The two prosecutors “denied justice and due process to thousands of potentially impacts defendants,” Morrison and Medwed allege, “many of whom remain[] incarcerated.”

Morrison and Medwed point out that prosecutors are rarely held responsible for their inappropriate behavior, even where, as here, a court specifically makes a misconduct finding: “[T]he Massachusetts Board of Bar Overseers has a chance to do what most other disciplinary agencies have largely failed to do: hold a government lawyer accountable for egregious misconduct.”

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