LAW : Justice Mocked When Madman Defends Himself

In a tale of two cities, east and west, the American system of justice is being trivialized and mocked.

“There are 93 counts in the indictment only because it matches the year 1993 . . . . Had it been 1925, it would have been 25 counts.”

The reasoning of a 4-year-old? No, sadly, it is the ravings of a person whose former lawyers say is mad but who is speaking for himself in the opening statement of his defense.

Colin Ferguson, who is accused of killing six passengers and wounding 19 others on the Long Island Rail Road on Dec. 7, 1993, is a highly visible phenomenon--fueled as much by bitter racial anger as by lunacy--fostering an undeserved and socially corrosive disrespect for our criminal-justice system. He fired his lawyers in order to scuttle their planned defense of “black rage” insanity.

Astonishingly, Ferguson was found mentally competent to be tried--and to waive his right to counsel. His defense, in the face of a virtual 100% body of proof identifying him as the cold, methodical shooter, is this: Some unidentified white person did the shooting after stealing the slumbering Ferguson’s unlicensed gun and personal ammunition depot.

A critical review of Ferguson’s mental health is beyond the scope of this article. However, the court’s decision to permit him to act pro se, particularly in light of his performance in court, raises serious questions of the system’s workability.

The irony is that Ferguson’s very self-representation refutes the propriety of his being his own best defender. Although the U.S. Supreme Court has held that a criminal defendant’s ability to represent himself has no bearing on his mental competence to choose self-representation, the court could not have meant that when that lack of ability manifests itself in an overtly self-destructive way, it should be ignored by the tribunal charged with ensuring that both the accused and society receive a fair trial.

Each trial day, Ferguson, armed with only his bulletproof vest, enters the legal fray. He attempts to emulate what seems to be his image of a trial lawyer, gleaned from TV. But no matter how much mimicked legalese he tosses around--such as his constant referral to himself as “the defendant” or the objection, “asked and answered” he delights in saying--this would-be Perry Mason is clearly incompetent to represent himself. Yet he continues to do so--while we continue to watch intently.

In addition to failing Ferguson, the criminal-justice system is failing all of us. The system was designed to determine the criminal responsibility of the accused by ferreting out the truth, while affording the accused the right to a fair trial--a non-arbitrary, rational procedure.

Instead, we are transfixed by the absurd spectacle of a disturbed human being going through what he perceives to be the requisite legal motions. In so doing, we are distracted from the trial’s substance--the question of responsibility for the heinous killings and woundings.

Because Ferguson’s defense carries with it the imprimatur of the law, given the judge’s ruling that he is competent to represent himself, and is set within the majesty of a formal courtroom with all the traditional trappings of justice, we unavoidably perceive his actions as consistent with those sanctioned by our criminal-justice system. We are struck by a feeling of hopelessness--or at least uneasiness--due to the substitution of this lunacy for what should be a sober, reflective and thoughtful process.

The perverse drama playing itself out on the East Coast has certain similarities to one unfolding on the West Coast. True, Ferguson is an indigent Jamaican immigrant defending himself with little or no cogency, while O.J. Simpson, a multimillionaire celebrity, has assembled a team of expensive defense lawyers to act on his behalf. But in both cases, the sensationalism created by opposite extremes of the legal-defense spectrum has obscured and shifted focus from the reality of the crimes’ underlying horrors. Race has also been shoved into the equation--such that, whatever the outcomes, there likely will be a lingering feeling that fact and law have not necessarily prevailed.

As a result, the public is getting a skewed perception of the criminal-justice system. With Ferguson, the message is that the system allows a madman to defend himself, with racial mutterings, when he is clearly not competent to do so. With Simpson, the message is that a rich and famous defendant is entitled to a different system of justice because he has the means of purchasing an arsenal of lawyers to obfuscate the issues.

Both messages are equally devastating, for they severely undermine the integrity and humanity of the criminal-justice system. A firmer hand--not less humane--by the courts involved would do much to heal the wounds to justice.

The media, too, has the ability and responsibility to counter the sense that the Ferguson and Simpson proceedings are typical. It can do so by sending the message that, in most cases, the criminal-justice system works because it vindicates the values envisioned by its creators. These two carnivals that we call criminal trials are extraordinary in their absurdity and mockery of those values.