Death Row Lawyer: Evidence Points Away
from Man Convicted of Tavernier Slayings


By John L. Guerra
______________________________________________________

The stoic face below is that of Thomas Mitchell Overton, a death row inmate who, a jury ruled, killed a young man and his pregnant wife in Tavernier in August 1991.

Could it be true that he is innocent, that the jailhouse confession used to convict him never occurred?

I recently had lunch with Roseanne Eckert, the attorney representing Overton, and she outlined facts that she said may exonerate Overton. Eckert, a wife and mother herself, is a lawyer with the Capital Collateral Regional Counsel-South, a state-funded organization that represents death row inmates in their post-conviction proceedings. Eckert had flown down to Key West last month to ask Circuit Court Judge Mark Jones to compel the state to test all the swabs from a rape kit used to collect forensic evidence from the body of Michelle MacIvor. Jones is to rule on that request in the near future.

Cartels ruled out; gas station worker ruled in

In August 1991, someone entered the home of Michael and Michelle MacIvor and spent a long time torturing and slaughtering them. Michelle MacIvor was eight months pregnant, but according to detectives, that didn't stop Overton from binding her ankles and wrists, taping her eyes shut, and raping her. Overton then strangled her and left the house. Detectives collected semen from the bed in the master bedroom where Michelle had been found.
Michael MacIvor was on the floor in the living room, also dead at the hands of Overton, detectives contend.
Upon learning that Michael MacIvor bought and sold small aircraft in Central America and the Caribbean, detectives for a time suspected that the murders may have been related to drug trafficking. Because cartels at the time used small airplanes to smuggle drugs to South Florida and the Keys, the presence of a dirt airstrip next to the MacIvor home made a compelling case for that scenario. Had enforcers for a drug cartel flown in and exacted "justice" on Michael for a botched drug deal?
Detectives thought not; Michelle MacIvor, a Monroe County public school teacher, seemed to be the focus of the attack, not her husband. Not only that, but interviews with business contacts showed that Michael was an honest, hard-working aircraft mechanic who successfully bought, repaired, and sold aircraft. The registrations and histories of each aircraft he'd possessed were clean.

Overton was known to detectives

Monroe County detectives, however, also knew Overton at the time of the murders. Though he'd never been charged for it, detectives believed he was a strong suspect in the earlier murder of another woman named Rachel Surrette. Overton also was in Tavernier in 1991, working down the road at an Amoco station at the time of the MacIvor murders. He was not arrested for the killings that year, but five years later detectives got the chance to link him to the MacIvor crime.
When Overton was caught during a burglary in 1996, Florida Department of Law Enforcement agents asked him for a blood sample. He refused. But when Overton cut his throat in custody, jail officials handed FDLE agents bloody towels that had been used by doctors to stop the bleeding. FDLE agents then  performed a DNA test and determined Overton's DNA matched that found on a comforter under Michelle MacIvor's body. In 1998, the samples were submitted to another lab for a different DNA test. That comparison produced a match with the probability of one in four trillion.
To make matters worse for Overton, another inmate in his cellblock--a convicted rapist who calls himself "Joe Pesci" after the actor who portrays psychopathic mobsters--testified in court that Overton had described the murders to him in sordid detail, including being able to feel the baby move as he raped Michelle MacIvor.
Overton was convicted and given two death sentences.

Where the case breaks down

The DNA evidence was mishandled, Eckert claims, and should not have been admitted into evidence. Without the DNA, any assertion that Overton was ever in the MacIvor home is suspect. The semen and other body fluids collected from the crime scene degraded in the Keys heat before it was even collected, Eckert says. She wants all the swabs from the crime scene and the autopsy tested to determine if someone else comitted the crime.
"Many people have been exonerated based on DNA evidence, but it can work both ways," Eckert said. "DNA can make detectives believe they have their suspect so they stop looking to see if there were other perpetrators. They also stop looking to see if other evidence leads away from a suspect."
By having all the swabs tested, Eckertwants to prove Overton wasn't there and show the presence of other criminals, the real killers.
"We want either to prove his innocence or get a reduction of sentence for Mr. Overton," Eckert told me. "Even the juries had a residual doubt as to his guilt. For the murder of Michelle, they voted 9-3 to give him death. For the murder of Michael they voted 8-4 for death. Not all the jurors were convinced."

Eckert outlined why she believes Overton got a raw deal.
First, the semen found on the bedding was not DNA tested until two years after the crime. In June 1993, the bedding samples were sent to FDLE for DNA testing. No match was found at that time. After Overton's 1996 burglary arrest, prison officials obtained Overton's blood during the suicide attempt, and only then could serologists claim a match.
"Doc" Donald Pope, a veterinarian-turned crime scene investigator and serologist for the Monroe County Sheriff's Office, swabbed Michelle's body at the scene and during autopsy. Pope testified that he found no evidence of sperm in the swabs he took from the victim's body.
"He then opined that he believed the absence of any evidence of sperm on the swabs taken from the victim's body was probably the result of deterioration due to weather and climate conditions," Eckerdt argues.
Pope also admitted during cross examination to having failed to properly collect and label the swabs in question. He also said dating on the samples did not accurately reflect the date on which the samples were obtained. The swabs also were lost and could not be found for a time, Eckert said. With a broken chain of custody, there is no way to determine whether police obtained DNA from the suspect first, then attached it to items from the crime scene.
Eckert doesn't claim that happened, but doubtful jurors can prevent executions.

Snitch is suspect character

The "Joe Pesci" snitch is a pathological liar, Eckert said. Psychiatrists testified in court that Pesci had a history of psychopathic behavior, including lying repeatedly about things for which he had no reason to lie. Not only that, but Pesci was a convicted rapist who was in jail for sexual violence against a young woman who had already consented to sex.
Pesci signed a sworn statement that allegedly repeated what Overton had confessed to Pesci about the MacIvor murders. According to Eckert, Pesci misspelled the same words detectives misspelled in the report they wrote on the day of the murders. The idea is that detectives simply handed Pesci their reports so Pesci could write an "Overton confession" that would include details only the killer or detectives would know.
Other facts that raise doubt as to Overton's guilt, Eckert says:

• Tire tracks found outside the MacIvor home don't match the vehicle Overton owned.
• Overton had a full-time girlfriend, therefore showed he was capable of healthy relationships.
• A .22 casing and spent bullet were found at the crime scene. Overton does not own a gun.
• A woman came forward a few years ago who said her next-door neighbor, a private investigator, had been paid to spy on the MacIvors in the weeks before the killing. The woman said she had typed up notes from the private investigator's reconnaissance trips to the MacIvoyr's homes for several weeks before the killings. The P.I. had been to Tavernier on a spying trip the weekend of the killings, the woman told newspapers and radio stations. After the MacIvor killings became news, the man left town, the woman claimed. The "P.I." was eventually tracked down and denied any knowledge of investigative work or other claims made by the woman.

It can be said that if you don't have an alibi, attack the evidence. DNA has become a regular point of attack for defense or appellate attorneys trying to save their clients' lives. The Innocence Project at the Benjamin N. Cardozo School of Law, co-founded by OJ Simpson defense lawyer Barry Scheck and Peter Neufeld, has successfully used DNA to prove the innocence of condemned men.
According to another organization that seeks to exonerate death row inmates, 140 condemned men have been exonerated since the 1970s. Unfortunately, some of these men were executed before their innocence could be proved.
Whether one believes Overton belongs on death row or not, lawyers like Eckert provide a chance for those the public condemned a long time ago. It's easy to like this woman's spirit but for her it is no game. It is not a public service. She is trying to save a life she believes is innocent.

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Should Griffiths get another term?

That seems to be The Question as candidates for the Monroe County School Board start raising campaign contributions and organize to run for the $29,000+ a year job.

Andy Griffiths, the owner of a small fleet of charter fishing boats and the senior member of the School Board, is running again. He is in his 20th year representing District 2, which comprises the upper half of Key West and Stock Island.
Griffiths was campaigning hard at the recent Taste of the Town in front of the U.S.S. Mohawk at the Truman waterfront, working the crowd, laughing and talking with prospective voters.

Asleep at the wheel?

With Duncan Matthewson (District 3, Big Pine Key and environs) not running in 2012, Griffiths is the sole remaining board member (Board member John Dick was new in 2006), who was around before the School Board awoke and went after a culture of corruption and inside contractual deals. In 2008, Griffiths was fond of saying that the first revelations of employee credit card abuse and subsequent news coverage was overblown, thereby irritating some on the board and in the public who believed Griffiths had had his head in the sand during his previous years on the board. For 16 years, his opponents reason, Griffiths and other previous board members had been asleep at the wheel while employees raided public school funds to enrich themselves or to help friends get lucrative school construction and service contracts.

Nor did Griffiths help himself much when he repeatedly said it was not the board's role to "micromanage" the district's daily operations. That role, he reasoned, belonged to the superintendent. The board should take a 10,000-foot view, Griffiths argued, by concentrating on classroom content, ensuring teachers and students had the funds to succeed, and other broad policy tasks.

Griffiths also got himself in a little warm-ish water with the state Auditor General's Office when he made arrangements for the school district to transfer two certificates of deposit from First State Bank to the Monroe County Teachers Federal Credit Union's accounts.
There was no crime, just that Griffiths made the arrangement with the president of the credit union at a party where the two were chatting. It was the kind of quiet arrangement made all the time during the good old days when financial agreements were made outside School Board meetings.
Griffiths went to then-Superintendent Randy Acevedo to sign off on the transfer so the money could be moved. At the time, Griffiths argued that it made sense for school money to be in the Teachers Credit Union, which makes house and car loans to teachers.
The auditor general "tsk-tsk-ed" Griffiths' inappropriate banking in its annual audit findings for the district.

Doing his duty

Griffiths also isn't what one considers a reformer, though to be fair, he didn't wait long to take the board lawyer's evidence of Monique Acevedo's illegal credit card purchases straight to the Monroe County State Attorney's Office. In spite of State Attorney Dennis Ward's grumbling that Griffith didn't bring him much, Griffiths took Ward enough evidence to launch an investigation.
"I took all of the invoices that the [school system] finance director put together for me," Griffiths said last week. "I think it weighed about five pounds."
Griffiths did not win a lot of hearts and minds during the shake up that saw Superintendent Acevedo removed by the governor and heated debate over the demotion, resignation or firing of school administrators.
 After it was learned that Monique Acevedo would plead guilty to stealing hundreds of thousands of dollars from school accounts (including stealing fundraising money from her daughter's class), Ward sent each board member a letter asking each to recommend punishment for the former administrator and wife of the superintendent. While two recommended jail and two left it up to the State Attorney's Office, Griffiths told a reporter that Monique Acevedo should get house arrest.
"That would allow her to work and pay restitution, Griffiths said last week. "I was not sure how she could earn money in jail to pay us back."
His suggestion of house arrest didn't please the public, which felt a strong message against theft was needed for students to grasp and hold on to. Ms. Acevedo was sentenced to eight years in prison.

Many voters perceived Griffiths' reticence to get to the bottom of things as an attempt  to keep a lid on the truth. I am not sure I agree.  I believe "corrupt" has no place in describing Griffiths. His colleagues on the board may question his approach, but they trust him.
For Griffiths, it's about convenience. It's inconvenient to publicly debate in detail what's wrong. It's inconvenient for individual administrators to be criticized. It's inconvenient when board members are surprised by other board members' comments in the press.
There is much to like about Griffiths, though. He is a friendly, approachable board member and pays attention to what's going on in his district and grasps issues quickly. He breaks down the budget with skill during board debate and enjoys using parables and other illustrations to make a point.
Griffiths has good connections in Tallahassee and has the time and energy to devote himself to the board.

Griffiths said he wants voters to remember that he was board chairman as the district faced its biggest crisis in a generation.
"I was the chair during this most challenging time and sat between different factions going about the scandal in their own way," he told me. "I had to bring compromise and balance. Former School Board member Steve Pribramsky [and often Griffiths' adversary on the board] would go on to say in the press that I was the best person in that role at that time."
It's too early to tell, however, whether he's the best person to continue representing the parents and students of District 2. The public has to hear more from his opponents as the campaigning takes off in the next couple of months.
Two candidates, Howard Hubbard and Yvette Mira-Talbott, are running against Griffiths on Nov. 6. Griffiths has listed himself as his sole donor so far, giving himself $1,000. Neither Hubbard nor Mira-Talbott have listed any contributions; those will show up on the next campaign reports. That will tell us who is backing which candidate. Griffiths is epected to lose some long-term supporters to Mira-Talbott, who has deep roots in the Conch community.
But it's important that voters choose the best candidate, regardless of Griffiths' decisions during the financial scandals. If Griffiths shows the best understanding of the issues and can show he has a platform that will improve the district's mission to increase student performance, then voters should choose him.
"Speaking about unpopular decisions of the past is no substitute for putting forth future solutions," Griffiths wrote in a United Teachers of Monroe candidate questionnaire recently.

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My phone number is 305-731-6727. You can email me at johnlguerra@gmail.com.

Death in the Cretaceous

Jim Ketchum's first sensation after arriving was the smell of rotting vegetation. The air was so thick with it that the stink clung to his skin. Tropical heat filled his lungs each time he took in air.

Over-sized insects, heavy with waste and other food, flitted this way and that, buzzing and thrumming with odd little wings. Foot-long dragonflies zigged and zagged above the grass, grabbing prey out of the air.
Ketchum recognized them as Protolindenia wittei, the ancestors of the large dragonflies that fed along creeks on his Virginia mountain property back home. In the future.

Ketchum had ridden "The Lightning"--the nickname for the time machine his science group had designed--all the way to the Cretaceous period. It was Saturday back at the other end, mid-morning. Here it was a nameless morning on an Earth without human beings. The earliest proto-humans, 3-foot-tall Homo gautengensis--would not emerge from the tree lines of southern Africa for another 66 million years. Seventy thousand centuries lay between him and the weekend he left behind not more than 15 minutes ago.

And now here he was, a mid-level government scientist with a family and two cars in his garage. He had materialized just outside a dark forest at the top of a gently sloping plain, which he now scanned with his binoculars. Midway across the plain, a silver river meandered beneath tall pines and acacia along its banks. A hundred miles away, the horizon rose tens of thousands of feet into a series of jagged peaks. The range marched southwest, a line of volcanic plumes at the limits of his sight.

The atmosphere at this point of the earth's geologic history was 15 percent carbon dioxide, much thicker than the 7 percent carbon dioxide back home. The rich oxygen content enabled the creatures of the Cretaceous age to achieve gigantism, a thought that unsettled Ketchum and reminded him to stay alert. The rich air had other consequences, one of which was quite beautiful. The Cretaceous sky was a much deeper blue, almost cobalt, so the landscape was striking in its contrast. The rich air also made it harder for Ketchum to breathe. It would take some time for his body to adjust, but his training had prepared him to conserve energy until he felt better.

High-pitched animal calls boomed deep in the forest behind him. The calls, a series of hooting barks, had authority, power, and intent.

Ketchum froze. He faced forward, but his hearing was tuned to the towering canopy and dark forest floor behind him. He thought of his former colleague, Jeff Brister, who had battled a sub-adult pterosaur on a cliff in southern China before falling to his death. Ketchum's bladder urged him to flee, but after some minutes of silent prayer (God, too, was 70 million years in the future) he turned slowly, pivoting on the balls of his feet, ready to make a run for it.

He scanned the base of the trees for movement. The tightly-packed conifers rose some two hundred feet in straight columns. Sunlight barely pierced the canopy of trees, so Ketchum had to wait for his eyes to adjust.

He saw one of the trees lift from the soil and noted with confusion that it had no roots.

Something blocked the sun, then enveloped him from the top of his head to his waist. He was lifted into a stinking, wet darkness; then his legs dropped away. As he died, Ketchum realized with horror that he had materialized under the shadow of a large carnivore, probably a tyrannosaur.
The scientist had died on the wrong side of a Saturday morning, delivered like a pizza to a hungry dinosaur.