Injustice for All

Tom Campbell poured himself a cup of coffee and gazed out the window of his cramped Beacon Hill apartment onto a sticky summer morning. It had been an exhausting and, for the most part, sleepless summer for the young prosecutor. Bleary-eyed, he unfolded the newspaper on his kitchen table. He gasped at the headline. Now wide awake, his heart pounding, Campbell read on.

“Thank God,” he said. “He's dead.”

It was Saturday, September 16, 1995, and Campbell, who worked for the Suffolk County District Attorney's Office, was devouring the story of a wild shootout in normally quiet Leominster. Two police officers had responded to reports of a burglary when a brazen thief with a gun in each hand opened fire on them. When it was over, one of the officers was wounded, perhaps spared a fatal injury when a bullet ricocheted off the pen in his breast pocket. The gunman, John MacNeil, was dead.

At that news, the panic that had sat with Campbell all summer vanished. The young lawyer had spent months seeing MacNeil's face as he went to sleep, convinced that this intelligent, conniving criminal was going to kill somebody.

MacNeil's file had crossed Campbell's desk one day in West Roxbury District Court. Campbell was a cub assistant DA, handling a litany of routine cases – assaults, drunk-driving charges. The charge facing MacNeil was a seemingly run-of-the-mill violation of a restraining order until Campbell read his criminal record. MacNeil, it was clear to Campbell, was a convicted murderer, a raging drug abuser, a clear-conscience criminal, and, above all, a frighteningly shrewd manipulator with a penchant for wriggling out of the most hopeless situations.

“He was,” Campbell recalls now, “a bomb.”

Campbell was baffled at how a character so evil had landed in court among garden-variety offenders – indeed, how it was that MacNeil was on the streets at all. This was a man who had participated in an execution-style slaying and received a life sentence. But somehow he had seeped through every imaginable crack in the Massachusetts parole system, repeatedly outsmarting law-enforcement officials to become a free man. His last breath came just days after he had yet again managed to extricate himself from custody – and this time on Campbell's watch. “This case was hanging over my head,” Campbell says. “I was dreading it. When I found out he was dead, I was relieved.”

Even in death, however, MacNeil is causing the state nightmares. Thomas Kent, the policeman injured in the shootout, claims that gun-shy bureaucrats bungled their opportunities to keep MacNeil off the streets of Massachusetts, that there's no way he should have ever been paroled. And a state appeals court has ruled that a lawsuit brought by the officer will go forward, meaning, barring a settlement, that a rare “wrongful parole” suit is headed for trial. It's a potentially groundbreaking case and one that revives questions about the fallibility of Massachusetts' historically inept criminal-justice system.

John MacNeil was 21 in 1968 when he, George McGrath, and Paul Robinson entered Hughes Pharmacy on Tremont Street in Roxbury, toting shotguns. Store owner Patrick Hughes, 62, stood behind the druggist's counter, while his nephew, Packy Hughes, minded the register. Packy, 27, was married, with one child and another on the way, and had just passed the bar exam. He was filling in at the pharmacy for his dad, who was home sick. It was four nights before Christmas.

When the thieves walked in, their guns in plain sight, Packy swung a wet mop at Robinson, who responded by putting a bullet in Packy's head. The elder Hughes ran to help his nephew. Robinson killed him too. Robinson and McGrath would be found guilty of first-degree murder. A gunfight with police ended in MacNeil's capture. In October 1969, MacNeil entered a guilty plea to second-degree murder and was sentenced to life.

It was the beginning of what would be a tumultuous prison term. Sent to MCI-Walpole, MacNeil stabbed a pencil in his arm, apparently to fake a suicide attempt, and was moved to the psychiatric ward. A few years later, he was moved to the minimum-security Norfolk Pre-Release Center. Within a few months, he escaped. He was captured and returned to Walpole, but in 1979 he was again put in a lenient facility, this time in Gardner.

Boston lawyer Leonard H. Kesten, who now represents the police officer in his civil suit against the state parole board, worked as director of classification at Walpole at the time and was acting superintendent of the criminal-release center. He remembers prison officials wondering why their higher-ups had switched MacNeil back to minimum security. “Soon thereafter I got the call,” says Kesten. MacNeil had escaped again.

MacNeil eluded officials for more than a year. It was believed he wandered north to Canada, where he had family in Nova Scotia. He was recaptured in 1981 and returned to Walpole but again, incredibly, was “downgraded” to Norfolk. There, he failed in an attempt to build a pipe bomb in 1982, nearly blowing himself up in the process. Despite his record, prison officials decided that MacNeil had been trying to rehabilitate himself, learning carpentry, studying medicine, earning his high school equivalency diploma, and developing a spiritual relationship with a nun from Somerville named Dorothy Briggs. The two exchanged letters in the early 1980s. On the subject of the 1968 shooting, MacNeil wrote: “As to my feelings when the crime happened, Dot, there weren't really any at the time other than shock and then afterwards an overall sadness.” On another occasion he wrote: “You ask me how I have stood the madness over the years. I really don't know this. Maybe the instinct to survive. I think when you come to places like this, living ceases and survival begins.”

When Briggs told MacNeil that her sister had died, he wrote back: “This is what life really is about, the bottom line. How we die. I just want to finish up and die well.”

Life sentence notwithstanding, MacNeil came up for parole in January 1985. Nine people showed up to oppose his release, including Boston Police Commissioner Joseph Jordan and members of the Hughes family whose relatives had died in the pharmacy massacre. Also opposing MacNeil's parole was Suffolk District Attorney Fran O'Meara, who said the only reason the state had let MacNeil plead guilty to second-degree murder was because it feared he would fake insanity and use his troubled psyche to wriggle free. (MacNeil disputed this, contending that his lighter punishment had been supported by the facts.)

Nine voices came forward in support of MacNeil, most of them from a sympathetic brigade of nuns led by Briggs. MacNeil himself drew up a letter, proclaiming the progress he had made. “My rehabilitation, for lack of a better word, has occurred from within, quite apart from Department of Correction programs intended to have that effect,” he wrote. He declared his intent to join his ailing father in Nova Scotia upon his release. “He has a home here with me,” MacNeil's father, Alphonse, 72 at the time, wrote to the board. “I will be glad to have him live here with me; we can start to make up for lost time.”

Three days later, MacNeil received notice that his parole had been denied. The board cited his poor institutional record and listed as reasons “escapes, explosive devices, etc.”

In the months that followed, there were reports of MacNeil getting into fights, but letters in support of him continued to trickle in. The resilient Sister Briggs included with one letter a copy of a painting she had produced, entitled Letting Go.

In 1986, MacNeil was denied parole again. The board noted that he had strangely refused to be moved to a lower-security institution, standard procedure for someone seeking parole. “Didn't seem to want to do anything to get himself out,” read the board's decision.

But MacNeil's fortunes were about to turn. Just six months after the parole board rejected his application, it suddenly granted him parole, with little explanation. After getting the news, MacNeil demonstrated the guile that would help him give the Massachusetts correction system fits in the years to come. Writing in rather smart language for a jailhouse lawyer, he reminded the board that once he was paroled and moved to Canada, “The U.S. cannot impose any sanctions on me . . . even if the laws are changed in the future.”

The board seemed unconcerned. In April 1987, MacNeil was handed over to the Immigration and Naturalization Service and deported to Canada, with no conditions other than that he never return to the United States and that he write to the board four times a year. Kesten says the parole board's decision was baffling. “I cannot conceive how anyone in looking at his record could have paroled him,” he says. “The only way you get paroled following murder is showing a long record of success inside the system. MacNeil failed every time he was put outside of maximum security.”

MacNeil's plane touched down in Canada on May 13, 1987, his shackles gone and nearly two decades of jail behind him – as long as he stayed north of the border. That's why members of the Hughes family were stunned when, in July of that year, they spotted him in Boston. Police learned he was living at a low-income housing project in Brookline and obtained an arrest warrant. MacNeil had taken refuge there with a friend.

On a September morning at 6 a.m., Officer John McBrien and a couple of partners staked out the High Street apartment building. They waited patiently for an hour until MacNeil emerged, spotted them, and bolted. He ran between two buildings toward Chestnut Street, but the officers chased him down. They took him back to prison, and within two weeks the parole board had revoked his parole, a move that should have restored his life sentence. “Subject's criminal past, along with his very negative institutional adjustment while incarcerated . . . and his flagrant violations of his special conditions amply illustrate the fact that the privilege of parole is wasted on him,” the board's report concluded.

MacNeil appeared Walpole-bound again. His most dogged supporter, Sister Briggs, came to his defense by way of a letter stressing that MacNeil had re-entered the United States only to earn money so he could start a business in Canada and to combat the loneliness he had felt with only his father as a companion. But a letter MacNeil himself wrote was more intriguing. He suggested that it was the board's fault he had gone astray for failing to provide more supervision over him in Canada. This set the stage for an extraordinary hearing before Superior Court Judge Cortland Mathers that turned into MacNeil's personal theater of the absurd. Appearing in court without a lawyer, a reasoned and articulate MacNeil told the judge that he could not be prosecuted by state officials for a parole violation since the state had surrendered its jurisdiction by turning him over to federal authorities to deport him.

“Is it essentially your position that they gave up jurisdiction over you?” the judge asked MacNeil.

“Yes,” he replied. “They say in the waiver that I am going to be supervised by the United States Department of Immigration.” He explained that state officials could have transferred him on parole to Canada, or supervised him there, but chose not to.

Mathers weighed the argument – and decided it was absolutely right. “I can't imagine why they are that upset with you that they would keep you here for life, when they saw fit to turn you loose,” the judge said. Remarkably, MacNeil left the courthouse in federal custody, having to answer only to the INS for illegally coming back into the country, not for a parole violation that would have sent him back to prison forever.

The INS never prosecuted him.

MacNeil was deported once again, but he would casually return to Boston in the late 1980s and marry a woman in Jamaica Plain who owned a nursing home. They had two kids. “[The wife] said that during their marriage she had no idea that he had been in prison for all of the 1970s and much of the 1980s,” says Campbell, the former prosecutor. “In retrospect, she said there had been clues. He had been ignorant of basic popular cultural things like The Brady Bunch and disco music.”

Improbably, MacNeil began to build a normal existence for a man with his past. But a suburban softball-and-barbecue life was not his style, and in 1993 his drug and alcohol abuse became acute and his marriage collapsed. In April 1994, his wife kicked him out. In July she got a call from their marriage counselor telling her MacNeil had made overt threats against her. She obtained a restraining order.

Meanwhile, MacNeil checked into St. Elizabeth's Hospital seeking help for a drug addiction. Someone at the hospital recognized his name in the log during his stay and tipped off federal officials. When MacNeil left St. Elizabeth's, he found himself back in the custody of the INS. Even while in federal custody, he proceeded to violate his wife's restraining order by writing letters to her. He would eventually appear in court on this charge on June 9, 1995. But he still had another card up his sleeve.

Enter Tom Campbell. Campbell, who is now in private practice, remembers every detail of the MacNeil case. He was doing hundreds of arraignments a day when this one jumped out at him. “You don't see too many people in district court with second-degree murder convictions,” he says. “It was inexplicable how he got out. I didn't know how he could have those convictions while doing time and then be out.”

Then Campbell, reeling from his read of MacNeil's brutal history, looked up and saw the defendant. He hardly resembled the face of evil. “This guy stood up in court,” Campbell recalls, “and he was wearing a tweed jacket, tie, khakis, leather patches on the jacket, and glasses. He looked like a well-put-together guy, and he came across as an academic. You would have thought he was an English professor.”

Hardly. Two reports presented to the court affirmed MacNeil's deep psychoses; the marriage counselor who warned his wife also testified. MacNeil had a creative, if implausible, answer to the counselor's actions. He said he had arrived early to an appointment with the therapist and walked in on her masturbating to a pornographic video. “I caught her,” MacNeil told the court, “and out of embarrassment and shame she called my wife to exact retribution on me.”

Campbell asked for $15,000 bail. Judge Sarah Singer imposed $5,000. “I knew he was going to make bail, and I was terrified,” Campbell says. “I was sure that this guy was going to do something real bad, so then I really started digging into the case.” While Campbell retrieved the 1968 murder file, MacNeil made bail.

Campbell called the Department of Correction, the parole board, the U.S. State Department, and the Attorney General's Office, learning just how dangerous MacNeil was. But Campbell could not find one state official to reassert parole supervision over MacNeil.

The civil case filed by Kent is based partly on the theory that state officials dragged their collective heels in failing to haul MacNeil into court in 1995. Campbell, says Kesten, “took one look at [MacNeil's] rap sheet and says, 'Oh my God, I have Manson,' and gets on the phone and says, 'Do something!'”

With only a few months until the trial, Campbell feared he was running out of time. “It was absolutely, beyond a shadow of a doubt, clear that this man was going to kill somebody,” he says. “And I was sure it was going to be his wife. So was she.”

The case was scheduled for trial, but in the meantime Campbell kept making calls. “Why didn't they just go arrest the guy?” he remembers thinking. “Why wait; let him go to court and demand release. I was trying to get everybody together on this and say, We've got to do something.” The summer crawled by, with Campbell lying awake at night. Then, on the evening of September 15 – ten days before his trial – MacNeil went to the Leominster home of Frank Iacaboni, a known bookie, apparently to either burglarize the house or harm one of its residents. Officers Thomas Kent and Dwayne Flowers responded.

Kent was filling in for a colleague. It was a hot summer day, and he and Flowers had decided against wearing bulletproof vests. Both cops recognized 640 Union Street as Iacaboni's address. Nothing seemed wrong when they arrived, but Flowers spotted a pair of feet beneath the Bentley in the garage. Before the officers could act, MacNeil burst out, a weapon in each hand, and started shooting.

One bullet ripped through Kent's midsection. Flowers tumbled to the ground as gunfire exploded around him. “I saw him go down,” Kent recalls. “I thought he was dead.”

Gasping for breath from a collapsed lung, Kent got off a couple of rounds, apparently hitting MacNeil in the wrist. About five minutes went by with no move from MacNeil. But then he re-emerged from the garage, again with both guns drawn, and Kent shouted at him to drop his weapon. MacNeil ignored the plea and fired, hitting the tree behind which Kent had taken shelter. Kent fired back and the convict staggered but wouldn't surrender. Kent fired again, and MacNeil fell, dying almost instantly.

The bullet that had hit Kent had ricocheted off the Cross pen in his breast pocket. Doctors said the pen may have spared his heart, but Kent isn't so sure he was saved by the magic pen, pieces of which are still lodged in his chest. That's because the pen directed the bullet downward, causing damage to his innards that persists today. Kent cannot run or walk fast because he lost full control of his bowels. “That pen has caused me more aggravation,” he laments.

Flowers, who had been crouching in a safe spot, was uninjured.

Reading in the newspaper about MacNeil's death, Campbell regretted Kent's injuries, which would essentially force the officer into retirement. But knowing that MacNeil was no longer breathing was a great weight lifted. On the date of trial, Campbell calmly walked into court and told the judge: “Your honor, we believe the defendant to be dead.”

Did Campbell feel he did all he could? “I didn't have any remorse about how I handled that case,” he says. “The district court doesn't have the tools to deal with someone like John MacNeil, so I made the effort to alert the higher authorities.”

He says of MacNeil that it's rare “to find someone with such a refined persona with that deranged love for blood. He was something out of the movies: a super arch-villain, evil, violent, smart, totally sociopathic, and completely immoral.”

The notion that the parole board was negligent in letting MacNeil go to Canada is central to Kent's lawsuit. The appeals court has let the case go forward, but a decision could be years away.

Crispin Birnbaum, representing the parole board, says that even if the board made a mistake when it released MacNeil, Kent's shooting eight years later is too distant an event to blame on the board's decision. “It's too remote and too speculative,” she says. “There are too many links for the plaintiff to have to make.” She says all of the twists and turns that followed MacNeil's parole broke the necessary chain of cause and events.

That's not good enough for Kent, who now lives in Arizona. “What I want is an explanation, an 'I'm sorry.' I want whoever is at fault to be put in the crack like I would have been if it wasn't a good shoot. I know there's something there. Somebody's bullshitting. Somebody's sidestepping the questions. Somebody dropped the ball.”