Touch DNA 2019 Update
In a court decision announced on June 5, 2019, Judge Christopher Bragg set aside Mark Carver's conviction on the basis of ineffective legal representation during his 2011 trial and problems with the touch DNA evidence which the judge called "doubtful at best." The questionable touch DNA was the only supposed evidence that tied Carver or his cousin, Neal Cassada, to the scene of Ira Yarmolenko's death. On the day the judge announced his decision, District Attorney Locke Bell stated he believes the touch DNA evidence is still valid and that he intends to pursue appeal and retrial, while Carver's attorney Ms. Chris Mumma of The North Carolina Center on Actual Innocence announced to media on the day of Carver's release from prison, June 11, 2019, that she would be able to further discredit the touch DNA evidence with additional lab work prior to any retrial.
Touch DNA Findings
Justice Robert Hunter, Jr., of the North Carolina Court of Appeals wrote in 2012 as part of his recommendation that Mark Carver's conviction be overturned, "I cannot find even one case in North Carolina that has reviewed the sufficiency of touch DNA evidence to establish the identity of an accused, much less any case in this state that even discusses the accuracy of touch DNA" (nccourts.org). An unofficial summary of the DNA evidence in this case follows, based on court documents, news articles and private sources:
- Yarmolenko's Car - North Carolina's state lab reported in 2008 that touch DNA mixtures from Ira Yarmolenko's car exhibited a predominant partial profile of Neal Cassada in 2 places, on the front passenger door arm rest and the interior side front passenger door glass and a predominant partial profile of Mark Carver in 1 place, on the pillar above the rear door on the outside of the driver's side of the car. This interpretation of the touch DNA samples was based on outdated standards which the lab failed to retire on the excuse of being occupied with internal corruption issues taking place around the time the samples were processed. Had current standards been used, the results would have been presented at Carver's 2011 trial as "inconclusive." Mixtures of touch DNA contain skin cells from more than one contributor, increasing the possibility of faulty identification by the lab analyst or the chance of placement by secondary transfer through another person. Further complicating identification in this case was the fact that Yarmolenko and Carver shared some genetic markers and the touch DNA samples themselves were of poor quality, missing a lot of data.
- Yarmolenko's Body - DNA was collected from the body during the autopsy. Some of the DNA sampled from the body was in the form of mixtures. None of it was a match to Carver or Cassada. Two findings of unidentified DNA on the ligatures, one of them male, were withheld from timely discovery to Carver's defense, an action that could have been the basis for a judicial finding of prosecutorial misconduct, but Judge Christopher Bragg, himself a former prosecutor, did not address this when he was in a position to do so.
- First Ligature: Ribbon - The predominant profile of the ribbon matched Yarmolenko. Carver and Cassada were excluded. Additional alleles were present. Minor profile was present.
- Second Ligature: Hoodie Drawstring - Only Yarmolenko's DNA was found on the drawstring.
- Third Ligature: Bungee Cord - Yarmolenko could not be excluded; Carver and Cassada were excluded. There were alleles which could not be accounted for. Some reports say unidentified DNA on the bungee cord was male.
- Scrapings Underneath Yarmolenko's Fingernails - Most of the DNA found from scrapings underneath Yarmolenko's fingernails was her own, however, an unidentified profile was also said to be found. Fingernail scraping evidence was not permitted to be presented to the jury during Carver's trial. From the trial transcript, "One was the Court’s ruling regarding that the witness - one witness, Ms. Winningham testified that she did receive nail scrapings and other matters to test but she was not permitted to give the results of those tests because of a lack of foundation" (March 17, 2011, page 309). Carver's attorneys should have provided a foundation at that point in the trial to allow these results to be presented, but they did not. The jury heard that Yarmolenko's hands and feet were found unrestrained and that one of her hands was grasping a vine and brush at the scene (also described as grass blades and branches). In 2019, Carver's defense team received permission to have the remaining fingernail scrapings retested using Y-STR technology to try to isolate and better identify any male DNA, but no results were found due to degradation and lack of remaining material.
- Back Seatbelt Button - During Carver's trial and post-conviction appeals, the prosecution brought forward a touch DNA sample from the back seat belt button that the lab analyst said did not exclude Carver. When the defense cross-examined the analyst during the trial, the analyst admitted that she had been unable to determine whether the sample was male or female since no male DNA existed in the sample. The analyst said her lab was unable to conduct Y-STR testing that may have enabled her to identify the sample as female. (March 17, 2011, pages 298-299). These results were once again based on outdated standards. Had the most current standards been used, the results would have been inconclusive, meaning that the testing did not produce information including or excluding Carver as the source.
- Other Items - Other items sent for forensic testing included pieces of food from Wendy's found in Yarmolenko's trunk, a 35mm camera found in the trunk, pliers found inside the car, an envelope with a letter, and Yarmolenko's sweatshirt and skirt. Carver and Cassada were excluded as a match to any of these items, and in fact the camera which was a part of the prosecution's motive theory produced no fingerprints or DNA from testing, not even Yarmolenko's own.
- Unidentified Samples - On July 10, 2008, touch DNA samples were swabbed from 22 places on Yarmolenko's car, and reports vary as to whether this was a first or second round of swabbing. DNA samples had been taken from the body during the autopsy, and the three ligatures had been removed during the autopsy and sent for DNA testing. All but the 3 touch DNA samples from the car said to be connected to Carver and Cassada remain unidentified. Carver and Cassada were excluded from all the DNA samples connected to the body and ligatures. The prosecution theorized that Carver's and Cassada's DNA could have washed away from the ligatures when Yarmolenko became wet, but defense attorney Brent Ratchford countered (March 17, 2011, page 333):
. . . Even in the light most favorable to the State, well, it got washed off by river water if you can believe that, but her DNA is on there. The ribbon, if he cut the ribbon as they say, in the light most favorable to the State, well, his DNA would be on the bag because it didn’t get wet. The ribbon on the bag did not get wet.
- Fingerprints - Of the 13 fingerprints lifted from the car, only one had "some value", but it did not have enough ridge detail to be used for comparison purposes, leaving no fingerprint confirmation for the touch DNA (see also the trial transcript, March 16, 2011, pages 225-226). A handprint was visible in photos of the car at the scene, but little has been publicly reported about it other than that casual observers have posted online that they think it appears longer and more slender than Carver's hand would have been. Construction workers who claimed to have been first to the body were never interviewed by police. The male jetskier who reported finding the body told investigators differing stories about whether or not he had been up on the bank, and the car door on which a handprint was photographed was closed while the scene investigation was still underway according to the trial transcript. Carver told The Charlotte Observer in 2016, "That DNA on that car is not mine and that handprints ain't mine. Cause I didn't go around it. How could it be mine?" Notice in the photos below the car was found with the front and back doors on the driver's side open, but the back door was closed while first responders who accessed the scene by boat were still present. The handprint was photographed on the back door on the driver's side.
- Additional DNA Testing - On August 10, 2010, law enforcement ordered additional DNA testing on the ligatures and DNA cheek swabs Carver and Cassada had voluntarily provided. This testing was performed by the Richland County Sheriff's Department Forensic Sciences Laboratory in South Carolina. The lab's testing of the drawstring revealed a mixture, with the major contributor being Yarmolenko and the minor contributor being "too weak to reliably interpret." The testing of the bungee cord revealed a mixture, with the predominant profile belonging to Yarmolenko and excluding Carver and Cassada as contributors to the mixture. The minor profile was uploaded into the Combined DNA Index System. The testing of the ribbon revealed only the DNA of Yarmolenko. Law enforcement never gave the lab DNA profiles of alternate suspects and were only requested to compare the DNA found on the ligatures to Carver's and Cassada's.
In 2012, Justice Hunter recommended that Carver's conviction be overturned based on several factors including the lack of supporting evidence and the ease of transfer of touch DNA via a third party. He wrote, "No evidence (such as matching tire treads or footprints as in Stone and Barnett) was presented that the defendant actually traveled the path between the two locations. The defendant later returned to the crime scene and asked police if he could retrieve fishnets he left while fishing earlier that day. He was denied access" (nccourts.org, pages 4-5 of the dissent). Incidentally, Carver returned again the next day to find his fishing nets had been confiscated. The loss of the nets was a frustration since they were expensive to replace.
Justice Hunter also wrote, "The State’s second expert on touch DNA testified at trial that touch DNA testing is a relatively new technique and is not as reliable as saliva and blood DNA testing. The expert also described a phenomenon known as secondary skin cell transfers, where if person A touches person B, and person B touches a pen, person A’s DNA can be found on the pen" (pages 9-10 of the dissent).
As an interesting side note about the unidentified DNA found on Yarmolenko's car, it was known around the University of North Carolina Charlotte campus that Yarmolenko more often rode her bike than drove her car. This article states, "Ira was a free spirit, loved the outdoors, hardly ever drove her car, mostly rode her bike or walked on campus, so driving her car was unusual." Another article which has since been taken offline mentioned that Yarmolenko let friends borrow her car, so this could account for some of the unidentified DNA which could have been deposited prior to her death.
Touch DNA Results Explained
New findings about the touch DNA in Carver's case have continued to emerge in court proceedings from 2017 to 2019, with Carver's defense team and subsequent court rulings indicating that the original touch DNA results have been discredited. Prior to 2017, Carver's defense team explored the possibility of contamination of touch DNA, and while the case has since moved on to establish that Carver's DNA was never on Yarmolenko's car, earlier discussions about the possibility of transfer still form part of the history of this case, as outlined in the following paragraphs.
The most specific comments related to touch DNA contamination possibilities came from The North Carolina Center on Actual Innocence Executive Director Ms. Chris Mumma, whose organization is representing Carver in his post-appellate claim of innocence. In April 2016, Mumma was interviewed by moderator Mike Collins on radio station WFAE 90.7 along with The Charlotte Observer staff Elizabeth Leland and Gary Schwab. Following are selected quotes relevant to the touch DNA.
Mumma: What we're seeing in mixtures, and that's what happens when you have just a limited number of skin cells, then you can pick up skin cells from a number of different people. When you're seeing more than one profile and you're interpreting the mixture, there can be complications in, if you settle on two people as part of the mixture, you could reach one conclusion. If you assume there's three people, you might reach another conclusion, and there's oftentimes no way to tell how many people are a part of that mixture.
[Moderator and Leland discuss and ask Mumma how the DNA ended up on the car or whether there was a possibility that it wasn't Cassada's and Carver's DNA.]
Mumma: There are several possibilities: the possibility that it was a mixture of their DNA; possibility that it was a mixture and it was more than two people and the mixture is being interpreted incorrectly; or the possibility that it was secondary transfer which means that someone had contact with them, and then that person had contact with the car and transferred their DNA to the car.
Moderator: . . . So the license was handed to the officer. Is it even within the realm of possibility with how touch DNA works that because he touched that fisherman's license and because it was handed to him by Mark Carver that Mark's DNA got on the officer in some way, the officer then touched the car and that explains the mixture of the touch DNA. Is that possible?
Mumma: "It's very possible. I'd say there was additional contact that would make it even more possible which would be a handshake, a handshake with someone who had been at the river for a couple of hours and was warm and sweating and then there's a handshake between the person who's been fishing.
Moderator: Is it likely?
Mumma: It is a possibility that needs to be explored.
Moderator: And it was not explored in the trial or in the investigation leading to the trial?
Mumma: We have not seen any of the DNA samples from any of the investigating officers as part of the forensic analysis.
@39:02Leland cites information given to her by attorney Brad Bannon who is knowledgeable about touch DNA: . . . It's now pretty common knowledge that mixtures as a general rule are very problematic. They are where the most human error and bias come in to play when lab analysts make determinations of what is or is not a genetic marker.
Was Touch DNA from the Car Reliable?
To review, official records state that touch DNA was first swabbed from the car on June 10, 2008, that the only touch DNA that lab reports said was linked to Carver was a single spot on the outside of the car in a mixture originating from more than one contributor and that the only other evidence tying Carver to the scene was his supposed knowledge of Yarmolenko's size which interrogation video shown during post-conviction appeal proceedings revealed had been fed to him by SBI Investigator David Frank Crow who prompted Carver to mimick him. Given the pivotal role of a single touch DNA spot in Carver's case, it is concerning that DNA collection protocol appears to have been violated prior to the first recorded touch DNA swabbing on July 10, 2008.
Police Told Each Other that DNA Evidence from Car was Collected Prior to June 24, 2008
According to Gaston County Police Department Crime Scene Technician Jim Workman (trial transcript, March 16, 2011, pages 219-243), the exterior of Yarmolenko's car was processed for fingerprints at the scene and the interior the day after. The first recorded swabbing of the car for touch DNA occurred on July 10, 2008. However, some police with access to Yarmolenko's car apparently thought that DNA swabbing on the car had already occurred by June 24, 2008, as revealed by North Carolina State Highway Patrol Officer Daniel Souther who downloaded the air bag control module data from Yarmolenko's car on that date (trial transcript, March 17, 2011, page 255 and 262):
Q. Okay, and on this occasion when you were examining the vehicle, were you wearing gloves?
A. No. I was told that the vehicle had already been processed for DNA [emphasis added] so I did not wear gloves. It was like about a month and a half, I guess, after the incident took place so it was my understanding that the vehicle had already been processed.
[Break in transcript.]
Q. You were not aware that it was processed for DNA in July?
A. I was not aware of that. I was told that the vehicle had been processed. [emphasis added] So, no.
Q. You were not told it was processed again for DNA in July after you examined the vehicle?
A. I was not told that.
Below is a photo shown during trial taken by Trooper Souther's colleague Trooper Dan Harmon on June 24, 2008. The car had been pulled out of the secure garage at the Belmont Police Station, sealing tape had been disturbed, and the troopers were examining the vehicle without gloves prior to the official touch DNA swabbing of the car on July 10, 2008.
Another interesting note about Workman is that ABC 20/20's 2016 documentary about Carver's case showed video of him rubbing his ungloved finger on Yarmolenko's car at the scene in the same spot that was later swabbed for touch DNA and claimed as a match to Carver, results that have since been discredited.
Was the Car Preserved for Evidence?
According to investigative reports, the car was first swabbed for touch DNA on June 10, 2008. Public court documents alternately list lab results from swabbing of the car on July 5 or July 10, 2008. Despite an ongoing investigation, these swabs weren't submitted for testing until October 24, 2008. On May 26, 2009, over one year after Yarmolenko's death, additional areas of the car were swabbed for DNA for no known reason. As detailed below, consideration should have been given to apparent lapses in the preservation of the car prior to DNA processing.
Yarmolenko's body had been placed in a sealed bag before it was removed from the scene in order to preserve DNA evidence. The sealed bag was cut open when the first and only autopsy began. It would be reasonable to expect the same type of processing for Yarmolenko's car if touch DNA results from it were used as the sole evidence for obtaining a conviction. However, the car's exterior was never wrapped, sealing tape was broken weeks before the official touch DNA swabbings, and a list of who had access to the car was never kept.
Who Had Access to Yarmolenko's Car before Touch DNA was Collected?
Defense attorney David Phillips was quoted in Gaston Gazette on October 11, 2010, "If anything, Phillips said he would have questioned the time that passed between Yarmolenko’s killing in May, and the time when DNA samples were finally collected two months later. He also would have challenged the fact that investigators did not keep a log of who visited the crime scene on the day the body was found, he said. 'The issue of contamination would’ve certainly been cause for some good questions to be asked,' said Phillips. 'Who had access to the car?'” This appellate brief shows that the touch DNA samples - the only ones connected to the fishermen - were collected two months later.
Construction workers were among the first to the scene, and they were never interviewed by police or asked for DNA or fingerprint samples. Neither were DNA samples requested from the jetskiers who discovered the body. Personnel from four city and county jurisdictions responded to the scene, and it is rumored that jetskier Dennis Lovelace was concerned that these workers contaminated the scene according to several sources that contacted the author of this website beginning in 2012. Someone who claimed to know the jetskiers posted extensively on Topix (thread now removed) that the jetskiers were reportedly very concerned because police touched things that could have been evidence. This report is of course hearsay having been written anonymously at Topix, however the male jetskier Dennis Lovelace gave police a statement that he had returned to the scene after calling for help, was there when police arrived and stayed until police said he could go, so claimed to have been there.
Additional hearsay adds to the concern of contamination such as relayed to this author by one of Carver's defense attorneys who said one photo from the scene shows a policeman sitting on top of the car, and another photo shows a policeman putting his foot up on the bumper to tie his shoelace at the scene.
News reporters had access by land to the car after the body was removed because they published photos and videos taken of police processing evidence in the car without gloves at times. The author of this website herself saw a news video online of policemen at the scene making a human relay chain, grabbing items out of the back seat of Yarmolenko's car without gloves and handing them one to another to move them out of the car. DNA collection protocol dictates that gloves be used while handling anything from which DNA swabbing has not yet been done and furthermore changing gloves when touching different pieces of evidence.
A tow truck worker attached towing cables to the car to lift it up the embankment. Sealing tape wasn't applied to the doors until after the car had been towed to the top of the embankment according to two witnesses who testified for Carver's trial. The car's exterior was never wrapped.
After Yarmolenko's car had been towed from the scene, videos and photos of the car in an open garage with sealing tape peeling away from the doors were circulating in the media in May 2008 prior to the official touch DNA swabbing date, so it is a concern that media may have been given access to the Belmont Police Station garage in order to take this footage. By June 9, 2008, Yarmolenko's brother Pavel Yarmolenko was in the news for posting $10,000 reward fliers featuring these photos of the car in the open garage with dislodged sealing tape, as shown below.
Possibility of Touch DNA Transfer
The only memo of the interaction with police the day of the crime barely mentions Carver and does not indicate anything about his clothing which witness James Beatty for The Charlotte Observer and Carver's defense attorneys and family members say was dry when police interviewed him at the scene even though eyewitness Mount Holly Police Detective William Terry testified at the 2011 trial that Yarmolenko's body, clothes and hair were wet. One of Carver's relatives wrote the author of this website that ungloved police investigators near the scene of Yarmolenko's death looked at Carver's driver's license and looked through his car. Carver himself told the The Charlotte Observer he had handed police his driver's and fishing licenses that day. The officer who spoke to Carver could have returned to the scene, had contact with other officers working the scene or touched the car before it was towed away.
Earlier in the day, Cassada had helped transfer a salt block out of the back of Carver's Chevy Blazer into his own car, leaving both men's touch DNA on Carver's vehicle and available for risk of transfer. Transfer could have also occurred at any time from when Yarmolenko's car was towed and stored until the touch DNA samples were swabbed.
Corroborating Evidence Absent
Note the following additional factors related to the isolation of the touch DNA evidence existing without other evidence to indicate Cassada's or Carver's involvement. The prosecution claimed that Carver had knowledge of Yarmolenko's height, but The Charlotte Observer revealed this information had been fed to Carver by SBI Investigator David Frank Crow.
Both Cassada and Carver consistently maintained their claims to innocence in Yarmolenko's death. On October 15, 2008, Cassada was given a polygraph test which he passed, indicating he had no involvement in or knowledge of Yarmolenko's death. Carver was not given one, even though he requested it. One of Carver's family members wrote to the author of this website in 2011, and the following quote is included on this website as hearsay, "Mark asked if he could take a lie detector test and they said, 'We already tried that and that didn't work out for us.' What they meant was they gave Neal one and he passed it so they refused to give Mark one. They tried to turn them against each other but it didn't work." The following questions were asked during Cassada's polygraph in October 2008:
- "Did you physically injure that girl in any way that day at the river?" (Answer: No)
- "Did you see that girl being injured that day at the river?" (Answer: No)
- "Do you know for sure who physically injured that girl that day at the river?" (Answer: No)
- "Have you considered doing serious bodily harm to any human being in the last two years?" (Answer: No)
This WCNC video shows a police officer slamming Ira's car trunk closed and also shows interview footage of a construction worker who claims to have been one of the first to the body. The construction worker says, "We went to see if anything could be done, but it was too late. There was no movement. It was something you don't want to see. I don't want to see it again." He was not listed during Carver's trial among those whose DNA was tested. Who was the "we" in the people he claimed went with him? Given the parameters of this case, these construction workers may account for some of the random DNA.
Mount Holly Police Investigator William Derek Terry stated during Carver's trial on March 16, 2011, that none of the construction workers were ever interviewed, as follows:
Q. How many construction workers at that site were interviewed?
A. I personally didn’t interview any.
Q. In fact, there were no construction workers interviewed at that site, correct?
A. No, sir, I don’t believe so.
DNA Notes and References
- Even the best labs have a certain percentage of mistakes when samples from the scene and from suspects are processed in the same lab. Research from The Council for Responsible Genetics provides thorough documentation of the history of DNA contamination leading to false accusations, for instance, people who were in prison at the time a crime occurred yet linked to the crime by DNA that was processed in the same lab on the same day as their own.
- The U.S. Department of Justice, National Institute of Justice Journal published an issue titled DNA Evidence: What Law Enforcement Officers Should Know that stated, "Inconclusive results can occur if the sample contains a mixture of DNA from several individuals."
- The first of two labs where the DNA samples in the Yarmolenko case were tested was under investigation for fraud around that time, Distrust of SBI appears in court, and "Touch" DNA up for scrutiny. Note that North Carolina State Bureau of Investigation Laboratory (SBI Lab) has since been renamed to North Carolina State Crime Laboratory.