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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