An indefensible case of murder

The trial of the accused in the Long Island rail massacre is descending into farce

"I WAS standing by the door of the train when I heard a pop to my right, down the aisle. I saw a man in a beige jacket with a gun walking towards me. I saw a man with a gun, holding it with both hands. I saw a man with a gun shooting at people in the seats. The shots kept on coming." "Do you see the gentleman in the courtroom, Mr Zaleskie?"

"Yes. He's right there."

"Can you point him out?"

"Yes. That's him there in the brown jacket. I saw him in the train as close to me as I am now to the judge. He kept shooting. He was moving up the car. Shooting . . ."

Call central casting for a New York commuter and they'll send you Kevin Zaleskie. Medium height, medium build, greying, clean-shaven, conservatively dressed, family man, he is a financial analyst who works in Manhattan, lives half an hour east of the city in a gentle Long Island suburb and every weekday evening catches the 5.33 train home from Penn Station.

At about 6pm on 7 December 1993, Mr Zaleskie picked up his briefcase, stood up and moved towards the door of the train. His station was coming up next. He heard the "pop", he saw the man with the gun - and two minutes later six of his fellow passengers lay dead, 19 wounded. Mr Zaleskie escaped unhurt.

"I was on the ground, trying to cover myself with my briefcase, when I heard someone say, `Grab him.' Three men held him down. When the shooting stopped I went down the aisle and I saw a man shot through both hands and through the chest. I opened up his shirt and I could see a bullet hole in the upper side of his chest; I saw a woman lying face down between the seats; I saw a young man who I could see was shot in the neck; I saw another man sitting upright with a bullet through the head."

The prosecutor had heard enough. He sat down and all eyes turned to the defence attorney, a black man with a chubby, unshaven face in a white shirt, a red tie and a brown jacket. He bounded to his feet, took four steps to his right and stopped before a wooden lectern, eye to eye with the prosecution witness. He rested his left elbow on the lectern, cupped his chin in his right hand. "Mr Zaleskie at 5.33, when you boarded the train at Penn Station, did you see Mr Ferguson, the defendant, on the train?" "No."

The attorney paused, glanced around the courtroom - spare, white-walled, high-ceilinged - as if to give the jury time to digest this (seemingly innocuous) revelation. He looked down, opened a file and held up two pages from a document - a statement, he said, which Mr Zaleskie had given the police shortly after what became known as the Long Island Railroad Massacre.

Aggressive, triumphant, the attorney read a passage from the document and exclaimed: "Here in your statement you told the police that you heard the pop behind you! Now you say you turned right towards the pop. . ." "When I turned I looked in the direction of the noise and I saw you shooting at the passengers." The attorney didn't bat an eyelid. He had him. He'd caught him in a contradiction. "You said, Mr Zaleskie," the attorney raised his voice, "you said before that you heard the shots behind you, now you are saying you turned right, so it is clear that you are lying." "No! I turned - and I saw you shooting at the passengers!" For Colin Ferguson, attorney, and Colin Ferguson, defendant, are one and the same man.

Only Ferguson sees the distinction. In court he describes himself - "my client" - in the third person. Only Ferguson appears to believe in Ferguson's innocence. Dozens of witnesses who were in the train have backed up Mr Zaleskie's testimony. When policearrested him they found a hand-written note in his pocket which read, "Reasons for this: Adelphi University's racism; Workers' Compensation racism; New York City Transit Police racism; racism by Caucasians and Uncle Toms' racism; filthy Caucasian racistfemale on Line One."

All the victims save one, an Asian, were white. The case against Colin Ferguson was open and shut. He turned a year ago to Ronald Kuby, a Manhattan lawyer famous for his espousal of seemingly hopeless cases. Until a judge discerned a conflict of interestKuby, a tall man with a wispy beard and a long grey ponytail, was acting on behalf of the radical Muslims accused of carrying out the World Trade Center bombing.

Mr Kuby, whose clients typically are poor black criminals, was unable to come up with a plausible defence of Ferguson. The best bet, he reasoned, was to plead insanity. "Black rage," he called it. "Ferguson was driven to insane, homicidal fury by the racism of American society." Newspaper commentators around the country were themselves driven into a fury, raging against the modern tendency to understand all and, therefore, forgive all criminal acts. "The abuse excuse!" critics fumed.

Black political leaders joined the fray. Colin Moore, an activist from New York, said that America should be put on trial for racial discrimination. Khalid Muhammad, of Louis Farrakhan's Nation of Islam, said Ferguson had been doing the work of Allah. "God spoke to Colin Ferguson and said, `Colin, catch the train, Colin, catch the train'."

Colin, it turned out, was listening only to his own inner voices. In June last year they told him that he had not in fact committed the train killings; that a white man had stolen the gun from his bag when he slept; that he was the victim of a conspiracywhich extended throughout the white American establishment, starting with the President himself.

Ronald Kuby felt unable to stand up in court and peddle this line so Ferguson promptly fired him and announced he was mounting his own defence. A few days passed and he rang up and asked for help. "He's been firing and hiring me for months now," Kuby said over a drink at his small Manhattan flat last week, whereupon the phone rang - it was Ferguson calling to ask for some documentation to back up his latest stratagem: to subpoena Bill Clinton.

Partly out of kindness, partly to rile the judge in the case, Donald Belfi, Kuby is helping out Ferguson, whom he believes to be certifiably insane. "We got a psychiatrist to tell the judge that Colin was suffering from paranoid delusions but the judge wouldn't listen. He insisted Ferguson was competent to stand trial and, therefore, competent according to the constitution to conduct his own defence. Well, let the judge face the consequences. Now he's found himself having to sanction state funds to payfor a detective Ferguson has requested to track down the mythical white killer.

You watch Ferguson grilling the poor Mr Zelaskie; you watch him browbeating an elderly Japanese witness, a commuter whom he shot - allegedly - in the thigh ("Judge! Judge! Will you please ask the witness to answer the question with a yes or a no"); you watch him questioning the professional bona fides of a stoical detective-sergeant who has been conducting ballistics tests for as long as 21 years; you watch him complaining to the judge that the lurid testimony of the forensic doctor in the case - a heavy-set Russian woman in bright red lipstick and tottering high heels - is prejudicial to his defendant's case.

You watch the judge - a kindly, white-haired gentleman with a pink Humpty Dumpty face - turning to Ferguson for the 10th time in an hour and repeating, with the patience of an oyster, "Objection overruled!"

The only person enjoying the show is the protagonist himself. Head cocked, ever alert, his face is animated, childlike, wide-eyed. He is having fun. Born into a well-off Jamaican family 37 years ago, he emigrated to the US in 1982 but failed miserably torealise the American dream. In and out of jobs, he became, as an acquaintance put it, "a nobody, and he went crazy because he could not adjust to the fact that he was a nobody". Now he is a national figure - albeit of the B-movie variety, in contrast tothe Hollywood celebrities starring in the O J Simpson trial out west.

Confronted by the spectacle, those who have railed against the "abuse excuse" ethos are thinking again. Mr Kuby appeared last week on a radio programme hosted by Bob Grant, the most popular and most rabidly right- wing personality on American talk radio.Grant found himself in agreement with Kuby - and, indeed, with an editorial in the New York Times: Ferguson was insane. Judge Belfi should call off the trial. "He could yet do so," Mr Kuby said. "But for the moment what we have is a farce that puts the judicial system to shame."