My Lawyer, Myself: Self-Defense Often Fails

AS the defense attorney rises to cross examine the witness, several court guards snap to their feet, cross their arms menacingly atop their chests, and peer alertly his way.

Normally a lawyer in a rumpled brown jacket known for asking rambling questions would not attract such scrutiny. But in the case of the People v. Ferguson, the attorney and the defendant are one and the same, a man who witnesses say shot six dead and wounded 19 on the Long Island Rail Road in December 1993.

Colin Ferguson, who was tackled and arrested immediately after he allegedly sprayed bullets in a crowded commuter rail car, has told the jury he is being accused unjustly because he is black. But because he insists on arguing his case in court - and his inept legal efforts have bewildered even his own advisers - he is virtually paving his way to prison, analysts say.

``What it has done is assured his conviction of murder in the second degree on all counts,'' says Anthony Falanga, a judge who had been Mr. Ferguson's original attorney until he dismissed him. ``And it has diminished the opportunities for the victims and the families to get some kind of explanation of what happened.''

Representing oneself in court - called ``pro se'' in Latin legalese - is rare in criminal cases precisely because of the disastrous consequences it can have.

``Generally, it's a really poor idea to represent yourself,'' says Vivian Berger, a Columbia University professor who has worked as both a prosecutor and defense attorney. ``How can you get three years of law school and, you know, maybe a good five years of practice in a few hours every day in court? It's impossible.''

Ferguson's defense that another man stole his gun while he was sleeping is all the more difficult to sell to the jury because so many people in the crowded train have identified him as the killer.

As an attorney, Ferguson at times asks cogent questions of the witnesses, many of whom were shot in the incident. But at other times he baffles the witnesses and jury by trying to subpoena President Clinton and former New York Gov. Mario Cuomo, or by referring to himself in the third person.

``Did you see a defendant by the name of Mr. Ferguson there?'' he often asks witnesses.

Many vicitms, unfazed by Ferguson's detachment, look at him and say that the mass murderer is ``you.''

Ferguson's succession of legal advisers (who help him but do not speak in court) have proposed that he try an emotional distress or insanity defense to lessen the sentence of a likely murder conviction. But he insists on arguing his innocence.

In early American history, pro se defense was more common. This is partly because it was not until 1963 that the Supreme Court ruled that criminal defendants have a right to free counsel. A decade later the court also ruled that a criminal defendant has the right to refuse free legal help and represent oneself.

The reasons defendants embrace a pro se strategy vary. Some do not trust lawyers or feel that they can do a better job. Others want to grab the limelight.

``This can be valuable for political defense,'' says Richard Moran, a criminologist and professor of sociology at Mt. Holyoke. ``That's the only real effective use it has.''

He cites trials during the Vietnam War in which some protesters argued their case to receive greater publicity or to win over a sympathetic jury. Pro se defenses are far more common today in civil court where defendants do not have a right to a free lawyer. On any given day in courtrooms across the United States, tenants are defending themselves in court against eviction notices, spouses are finalizing divorces, and others are suing in small claims courts.

In a murder trial, however, not only are the stakes much greater, but victims must directly face the attorney who, if guilty, is also their tormentor. In testimony Wednesday, John Apsel, who was hit by three bullets in the incident, had to endure repeated questioning by Ferguson as well as an insinuation - overruled by the judge - that he cowardly hid behind a woman during the gunfire.

``It seems to me to be quite a burden on the victims in a case like this - where either they were shot by him or suffered the loss of family - to be in the kind of intimacy of being examined, cross-examined by him,'' says Ms. Berger. Yet this is just one aspect of the bizarreness of the case. ``You have a constitutional right to make a fool of yourself,'' says Eric Freedman, a law professor at Hofstra University, but ``this is a manifest waste of judicial resources.''