A FOOL FOR A CLIENT

By DAVID VAN BIEMA

He wore a lawyerly tie and brown tweed jacket and spoke in a jurist's measured tones. He was sufficiently rational to raise objections that were then sustained by the judge. Yet it was not too long into the first day of the trial last Thursday when Colin Ferguson, lawyer, mused publicly on the 93 charges against Colin Ferguson, defendant, and the audience at the Nassau County, New York, supreme court got a taste of the sort of down-the-rabbit-hole experience they were in for. Leaning informally on a lectern, peering down earnestly at the jury, the Jamaican native intoned his theory: ``There were 93 counts to that indictment, 93 counts only because it matches the year 1993. If it had it been 1925, it would have been a 25-count indictment.''

The man who argues his own case, goes the lawyer's bromide, has a fool for a client. But if a client is truly a fool--or, worse than that, is insane--then no folksy admonition will stop him, and neither, at least in the Ferguson trial's first week, would his presiding judge.

By all eyewitness accounts, it was Ferguson who one bloody evening two Decembers ago killed six fellow passengers and wounded 19 more with a semiautomatic pistol on the Long Island Rail Road's 5:33 train to Hicksville. The suspect's original attorneys, radical lawyers William Kunstler and Ronald Kuby, acknowledged as much when they offered up the controversial ``black rage defense,'' suggesting that an already unbalanced Ferguson had been pushed over the edge into murder by endemic American racism.

To the relief of many, the defendant himself rejected that argument. But then he announced his improbable alternative: he would prove that a Caucasian male was the real killer. And he would do so as his own counsel. Kunstler and Kuby gamely presented him with a copy of the courtroom bible Fundamentals of Trial Techniques.

That set the stage for last week's production of Jekyll and Hyde Visit Bleak House. Ferguson's courtly legalisms--``Did there come a time . . .'' and ``Is it your testimony that . . .''--and his formal complaints of ``Hearsay!'' or ``Leading the witness!'' chimed very oddly with the preposterousness of his core thesis, expressed in an eerie third person: ``The evidence will show that Colin Ferguson was in fact a well-meaning passenger on the train . . . Like any other passenger, he dozed off--having the weapon in a bag. At that point someone . . . took the weapon out of the bag and proceeded to shoot.''

The week's most bizarrely charged moment came late on Friday when Ferguson cross-examined Maryanne Phillips, who had taken a bullet in the chest and played possum to avoid more. ``It was your statement that you played dead and that you were closing your eyes?'' Ferguson asked. ``I didn't want you to shoot me again,'' she replied levelly, this time staring right back at him. Afterward she said, ``It felt quite good to face the person who shot me.''

That helped dispel fears that Ferguson as lawyer might traumatize surviving victims who once again found themselves trapped in an enclosed space (a witness box), menaced by the same man who had tormented them 14 months before. And it left observers free to consider the remaining issue: Can Ferguson receive a fair trial if he is being represented by a crazy man? Couldn't county court judge Donald E. Belfi prevent such a travesty?

Not easily. Belfi had heard competing psychologists and then accepted the prosecution's contention that although the defendant might be paranoid, he was competent to stand trial. The judgment is debatable. Says Kuby: ``They should have found him incompetent and packed him off to a mental institution.'' But it was in keeping with current judicial practice--and with the belief of many Americans that an asylum is too good for the likes of Ferguson or, say, Jeffrey Dahmer.

However, having decided competence, Belfi was obligated to let Ferguson represent himself. Reason: a 1993 Supreme Court majority opinion written by Justice Clarence Thomas. If a defendant is competent to stand trial, it ran, he is competent to decide whether to represent himself. And if he so opts, then the presiding judge's opinion of how well he would do the job is immaterial.

Unless Ferguson becomes overtly disruptive, which he has avoided thus far, it seems that the only way for Belfi to cut short his surreal career at the bar would be to rescind the decision on competence to stand trial, thereby ending the proceedings. That might sit badly with Phillips, her fellow victims and much of the public.

The 1993 Supreme Court decision was not unanimous. Justice Harry Blackmun, in a dissent dear to champions of the rights of mentally impaired defendants, wrote that ``a defendant who is utterly incapable of conducting his own defense cannot be considered `competent' to make such a decision, any more than a person who chooses to leap out of a window in the belief that he can fly.'' It is quite possible that for the next few months, auditors of the Long Island trial will be treated to the dubious spectacle of the gesticulations such a person makes--before he hits the ground.

-Reported by Adam Cohen/Mineola

With reporting by ADAM COHEN/MINEOLA