Colin Ferguson Trial: 1995

Defendant: Colin Ferguson
Crimes Charged: Murder, attempted murder
Chief Defense Lawyers: Colin Ferguson, Alton Rose
Chief Prosecutor: George Peck
Judge: Donald Belfi
Place: Mineola, New York
Date of Trial: January 26-February 17, 1995
Verdict: Guilty on 68 of 93 counts, including murder, attempted murder, assault, reckless endangerment, weapons possession
Sentence: 6 consecutive 25-years-to-life terms for the murder conviction; 19 additional 25-year sentences for each count of attempted murder

SIGNIFICANCE: In a nationally publicized trial involving a defense that could only be described as bizarre, Colin Ferguson, acting as his own attorney, questioned his alleged victims on the witness stand in an attempt to prove that someone else had committed the crimes.

fn December 7, 1993, the daily 5:133 P.M. Long Island Rail Road train left Penn Station in New York City for Hicksville, New York, carrying commuters home. As the train raced into neighboring Nassau County, one of the passengers rose and walked calmly down the aisle, shooting everyone he passed with a 9mm handgun. When the shooter paused to reload, terrified passengers wrestled him down. By then, six people lay dead or dying. Nineteen more were seriously wounded.

The man with the gun was Colin Ferguson, 36, a well-educated, unemployed immigrant from an upper middle-class Jamaican family. His surreal defense would strain debates over mental competency and criminal insanity like few others ever heard in an American courtroom.

Ferguson insisted that he was perfectly sane. In fact, he denied that he was the killer; he claimed that an unidentified white man had done the shooting and then escaped. With a train full of wounded survivors and traumatized onlookers accusing him, Ferguson's claim was clearly either a delusion or a lie.

A court-ordered psychiatric examination determined that Ferguson met both criteria by which defendants are deemed sane enough to stand trial in New York: He understood the nature of the legal proceedings against him and he was able to assist in his own defense. He was also found to have been able to distinguish right from wrong at the time of the shootings.

One month after the shootings, on January 7, 1994, Ferguson was declared mentally competent by Nassau County District Judge Ira Warshawsky. Despite this ruling, Ferguson's court-appointed attorney, Anthony Falanga, said he would still attempt to defend Ferguson on grounds of insanity. Ferguson refused to cooperate with Falanga. After two months of being ignored by his client, Falanga stepped aside when Ferguson agreed to be represented by controversial civil rights attorneys William Kunstler and Ronald Kuby. Ferguson's new lawyers agreed that he was mentally unstable, but they announced that his defense would take a different approach.

When Ferguson was arrested, police found notes in his pockets expressing his hatred of Caucasians, Asians, and "Uncle Tom Negroes." Kunstler and Kuby held that Ferguson's behavior could be tied to a study entitled Black Rage. In this 1968 study, psychologists Price Cobbs and William Grier observed that in order to function in society, African Americans suppress feelings of intense anger over racism. Kunstler and Kuby would try to expand this thesis into a "black rage" defense, arguing that continual racist mistreatment was the catalyst that caused Ferguson's delusions and paranoia to explode into violence.

Critics accused the attorneys of manipulating the sensitive state of race relations in New York in order to excuse the acts of a cold blooded killer. Kunstler and Kuby vowed to press ahead with the "black rage" defense. Their strategy, however, accepted that Ferguson was the killer and that he was mentally unsound. Ferguson rejected both assumptions.

Ferguson then decided to act as his own attorney, against the advice of his lawyers and Nassau County District Judge Donald Belfi. Because Judge Belfi reaffirmed the mental competency finding on December 9, Ferguson was entitled to represent himself, even though he had no legal training. Furthermore, because the defendant was considered legally sane, Judge Belfi was required to provide the indigent Ferguson with county funds to pay for a private investigator to find "the real killer."

"What we will have now is a complete circus," predicted Kuby.

Although Ferguson dismissed Kunstler and Kuby, he continued to telephone them for advice. Nevertheless Ferguson decided that his only legal advisor in court would be Alton Rose, a Jamaican-born attorney who had known the defendant when he was a young man. Since emotions surrounding the case were so high, Rose made a motion to have the trial moved outside of Nassau County. An appeals court refused, holding that Ferguson, not Rose, would have to make such a request.

Opening statements in the trial began on January 26, 1995, in Mineola, New York. Wearing a bulletproof vest under a handsome suit and speaking evenly, Ferguson said that as the commuter train made its way out of New York City, he had dozed off and someone had stolen his gun and opened fire on the passengers. "Mr. Ferguson was awakened by the gunfire and, amid the confusion, sought to protect himself," Ferguson said, speaking of himself in the third person to an increasingly strange effect in the courtroom. Ferguson told the jury that the charges against him were a racist conspiracy.

Prosecutors produced police photos of victims lying in pools of blood, there were shell casings and bullet holes in the railroad car. Averting his eyes from the pictures, Ferguson objected that the photos were prejudicial in nature, but the judge overruled him.

The pistol wrestled from Ferguson was entered as evidence. As prosecutors passed the weapon back and forth in front of the jury, Ferguson objected when he was not allowed to hold the gun. The judge sent the jury out of the room.

"By not being allowed to hold the weapon, the jurors are given the impression that the court has already made up its mind about my guilt or innocence," Ferguson said. "Therefore, I move for a mistrial."

"This is one of the pitfalls of self-representation," replied Judge Belfi. "No defendant can handle a weapon. You were not singled out. Motion denied."

Survivors of the massacre began to testify. Television viewers across the nation watched incredulously as Ferguson questioned the people he was accused of shooting at point-blank range. Far from appearing terrified, however, most of the victims responded to Ferguson's bizarre queries unflinchingly.

Mary Anne Phillips, the first gunshot victim, testified that she had played dead after she was wounded. Ferguson asked if she kept her eyes closed.

"Yes," replied Phillips, "so you wouldn't come back and shoot me again."

Elizabeth Aviles similarly refused to be intimidated by the man who had shot her in the back. When Ferguson pressed Aviles to describe the gunman, she responded angrily, "I saw you shooting everyone on the train, okay?"

As the trial progressed, the eloquence of Ferguson's frequent objections led many to wonder if he was a crazy man mounting an able defense or a sane man cultivating an appearance of insanity, cynically paving the way for future appeals. He accused the Jewish Defense League of conspiring to kill him and said that the prison murder of cannibal serial killer Jeffrey Dahmer was a rehearsal for his own death behind bars.

Ferguson made a request to subpoena U.S. President Bill Clinton, because the president had personally commended the bravery of George Blum, Michael O'Connor, and Mark McEntee—the three men who subdued the killer at the time of the shootings. The request was denied. Ferguson also argued that the indictment against him contained 93 counts only because the shootings occurred in 1993. "Had it been 1925," Ferguson said, "it would have been 25 counts."

Outside of court, a New York exorcist claimed that the CIA had kidnapped Ferguson and implanted a computer chip in his brain, activating it with an order to kill. Ferguson considered calling the exorcist as a witness, but decided against it. Although he was entitled to do so, Ferguson rested his case without calling the defendant he habitually referred to as "Colin Ferguson" to the stand. Carolyn McCarthy, whose husband Dennis had been killed and her son critically wounded in the railroad shootings, described Ferguson as a coward for not taking the stand.

On February 17, the jury considered the case for ten hours. When the jurors returned to court, they acquitted Ferguson on 25 counts of aggravated harassment, returnedbut found him guilty of all the other charges, on25countsincluding multiple counts of murder, attempted murder, assault, reckless endangerment, and weapons possession. There had never been any doubt about Ferguson's guilt, said the jury foreman, who explained that the long deliberations concerned the less serious harassment counts.

To attorneys Kunstler and Kuby, Ferguson agreed to pursue an appeal based on grounds that he never should have been found mentally competent to stand trial. To Attorney Rose, however, Ferguson maintained that he was mentally sound. Rose announced that he would not represent Ferguson during any appeals and would ask the state to appoint a public defender to represent his indigent client after sentencing.

On March 21, survivors and family members of the dead filled the court to testify during sentencing recommendations. For two days, people directly touched by the railroad massacre asked Judge Belfi to punish Ferguson severely for the suffering he had inflicted. Robert Giugliano, whom Ferguson had shot in the chest, lunged at the defendant.

"Look at these eyes," shouted Giugliano. "You can't! You're nothing but a piece of garbage!"

When Ferguson accused the wounded of plotting with police against him, victims and their families turned their backs and filed out of the courtroom. Visibly aghast at Ferguson's insensitivity, Attorney Rose asked the judge if he could also leave the room. Judge Belfi denied the request. As Rose sat exasperated beside him, Ferguson declared his innocence in another rambling monologue, which lasted for hours.

"John the Baptist lived in the wilderness, a humble man, and he was put into prison," Ferguson said. "He was beheaded by a criminal justice system similar to this. After his death, we can look back and say with 20-20 hindsight, 'This was a great man.' And as much as I'm hated in Nassau County and America, I believe there are persons that are strengthened by me and my stand."

Judge Belfi saw things differently. "Colin Ferguson, in my almost 21 years on the bench, I have never presided over a trial with a more selfish and selfcentered defendant," the judge said before a packed courtroom. "The vicious acts you committed on December 7, 1993, were the acts of a coward."

During the trial the New York State Legislature had re-instituted the death penalty for murder. However, Ferguson would not face execution because his crimes occurred before the law was passed. "Unfortunately, this new law cannot be applied to you," Judge Belfi told Ferguson. "The court is, however, empowered to mete out a sentence equivalent to life without parole."

Noting the killer's "total lack of remorse," Judge Belfi sentenced Ferguson to six consecutive 25-years-to-life terms, one for each count of murder. The judge also gave Ferguson 25-year sentences for each of 19 counts of attempted murder—for a total of 475 years. But prison terms for multiple convictions of attempted murder are limited by New York law to a total of 50 years. Thus, Ferguson's combined sentences added up to 200 years. His victims and their families cheered as the sentence was read.

Ferguson appealed his conviction, asking for legal counsel this time. However, in December 1998, the New York Court of Appeals refused Ferguson's request for a new trial.

Colin Ferguson's killing spree opened the debate on the issue of gun control. The widow of one of his victim's, Carolyn McCarthy, became a crusader for stricter gun control laws. A retired nurse, McCarthy became a fervent activist for the issue and ran for a seat in Congress in 1996. Campaigning primarily on the basis of tighter regulations on the availability of guns, the political novice won, stunning many observers and proving that the populace agreed with her views.