From the archives: Ferguson convicted on top counts in massacre

This story was originally published in Newsday on Feb. 18, 1995.

After 10 days of testimony in which 15 witnesses said Colin Ferguson turned a Long Island Rail Road train into a bloodbath, a Nassau County jury did the inevitable last night and found him guilty on all the top counts.

It just took longer than anyone expected. Ten hours.

The jury of 10 whites and two blacks convicted him of killing six people and wounding 19 on their way home as the 5:33 from Penn Station neared the Merillon Avenue station in Garden City on Dec. 7, 1993. Jurors sent out five notes asking first to examine the 9mm. Ruger semi-automatic pistol used in the shooting and then for clarifications of points of law as they methodically made their way through a 19-page verdict list.

Finally, at 9:20 p.m., jury foreman Delton Dove, a bus driver from Roosevelt, read the verdicts in an even voice to a hushed courtroom packed with reporters, spectators and more than 30 survivors and friends and relatives of the dead and injured.
On the first guilty verdict, victim Robert Giugliano clapped his hands together, shouted "Yes," and shoved a fist in the air.

While some smiled broadly and gave each other thumbs-up signs, others bit their lips, held back tears or sobbed openly.
Carolyn McCarthy - whose husband, Dennis, was killed on the train and whose only child, Kevin, was left partially paralyzed - was one of those who cried. Her son comforted her.

"I wish that I could say that tonight is a happy occasion," she said later. "Justice has been done, but I don't think you could ever say that this is a happy occasion when you have to sentence mass murderers going around in this country."

Jurors found Ferguson guilty of six counts of second-degree intentional murder, 19 counts of attempted murder, two counts of weapons possession and one count of first-degree reckless endangerment.

But despite notes that prosecutors said showed he acted in a hate-stoked fit of racial pique, jurors found him not guilty of civil rights charges that indicated he shot people solely because of their race.

When deliberations began, much of the jury had decided Ferguson was guilty because of the witnesses' testimony and it was just a matter of deciding whether he killed intentionally or with depraved indifference, juror John Brautigam said.

"For the whole idea of intent, we had to decide on his actions and state of mind when he got on the train and started shooting," said Brautigam, a computer programmer from Williston Park. "When he intended to kill someone, did he kill that person or someone else?" by missing or the bullet hitting another passenger in the pandemonium.

Speaking from his home, Brautigam sounded exhausted from the emotional, month-long trial. "It was pretty draining," he said. "You begin to realize towards the end, lots of people's lives have been affected. You get wiped out. It's a heavy responsibility."

As the verdict was read, survivors shook their heads and dabbed their eyes while Ferguson stood without expression, listening intently. When the jury was polled on the verdict, Dove appeared emotionally overcome, putting his hand over his face at times.

After being handcuffed, Ferguson asked Nassau County Court Judge Donald E. Belfi for a court-appointed attorney to handle his appeal.

Belfi told him that was up to an appeals court to decide. Then, the judge raised his hand and said, "That's it." Ferguson was taken from the courtroom as it erupted in applause, hoots and hollers.

Belfi set sentencing for March 20. Ferguson faces a maximum of 150 years to life on the murder counts.

After the verdict was read, Alton Rose, Ferguson's legal adviser, said he asked Ferguson for the first time what had happened the day of the shooting.

"Ferguson admitted to me that a number of things went wrong in his life, which probably culminated in the LIRR massacre. I said to him, 'What happened, Colin?' and he spoke about the fact that he had lost his job, there was a failed marriage, he was a loner, he was almost living in squalor. He didn't say he was pushed over the edge, but I gather that was what he was trying to tell me."

In a news conference after the verdict, several of the wounded and the families of the dead spoke out about the need for gun control.

"We also learned as a result of this trial that no matter how delusional or paranoid or schizophrenic Colin Ferguson appeared in the course of this trial, that up until a few moments ago he would have been eligible to buy that same gun . . . that he used to kill six beautiful human beings," said Thomas McDermott, a Garden City attorney who was shot in the left shoulder.

If Congress repeals the assault weapons ban, McDermott said, "they have disgraced, they have dishonored the lives of the six human beings who never made it off that car."

Carolyn McCarthy, breaking down as she listed the dead, said, "You haven't heard the last of us."

Jack Locicero, the father of slain victim Amy Federici, said if the ban is lifted by the Republican Congress, "I guess we're going to have to deal with the Contract on America."

After the news conference was over, Rose approached Carolyn McCarthy and held out his hand.
He said, "I hope you . . . understood somebody has to do it. I tried to tell Colin not to bother those people [the victims]" on cross-examination.

She responded, "I honestly felt very bad for you. I saw you going down lower and lower in your chair."

He replied, "I want to say I'm sorry" for Dennis and Kevin.

She said, "You had to do your job."

The verdict brought back painful memories of terror and panic for those who survived the train and the relatives and friends of those who didn't.

Ferguson had a window seat in the southwesternmost part of the third car on the infamous 5:33 train from Penn Station. "It was the absolute perfect seat for what he wanted to do. In that section, everybody has their backs to him," said a law enforcement source. More than 80 passengers were in the car.

The train pulled into New Hyde Park station just after 6 p.m. The man seated next to Ferguson got up and left. As the train pulled away and headed into the county Ferguson had targeted for his crime, Ferguson got up and pointed his pistol at the woman seated across the aisle from him.

"He looked me dead in the eye and pointed the gun and with the most serious look I have ever seen on anyone's face, he shot me in the chest," said Maryanne Phillips, the first woman shot in the massacre and the first victim to confront Ferguson from the witness stand.

Phillips, a NYNEX executive who lived in Mineola at the time of the shooting, testified three weeks ago but heard her testimony again yesterday as jurors asked for a readback of how a bullet shattered Phillips' arm almost "to granules of sand."

Next, according to testimony, Ferguson headed east, emptying his clip of 15 rounds before even approaching the first vestibule. He shot Kevin McCarthy, John Forni, Debra Weber, John Apsel and Elizabeth Aviles. He killed Dennis McCarthy, James Gorycki and Richard Nettleton. As smoke and screaming filled the car and panicked passengers played dead or tried to flee eastward, Ferguson took a few steps back to his seat, dropped his empty clip to the floor and reloaded.

He headed deliberately down the length of the car, shooting left and right, pointing his gun into seats and at terrified commuters. A river of blood flowed down the north side of the car, according to testimony. Ferguson shot Joseph Panico and Frank Barker. He fatally shot Amy Federici and Mi Kyung Kim. He killed Marita Magtoto. By the time he was finished, 25 people were hit. He fired a total of 30 rounds, half of which were Black Talons, which open like claws as they tear through flesh.

Finally, Ferguson ran out of bullets for the second time, according to testimony. He stood just before the eastern vestibule. In his bag were two more fully loaded clips and 80 more rounds of ammunition. Before he could return to his seat again, someone shouted, "Let's get him."

Kevin Blum charged. Ferguson dropped his gun. Mark McEntee pocketed it, and he and Michael O'Connor helped Blum tackle Ferguson, throwing him back into a seat as he whimpered, "Please don't hurt me."

But despite the overwhelming evidence, what was once the most straightforward of cases soon took on a life of its own. Two of the most famous defense lawyers in the country agreed to represent Ferguson for free. But Ferguson fired William Kunstler and Ronald Kuby after they insisted on mounting an insanity defense that suggested Ferguson snapped after years of racial mistreatment. He kept them on as advisers.

Last night, Kuby said, this "wasn't a trial at all in any meaningful sense, it was a Roman circus." He has maintained that Ferguson is insane - a view that prosecutor George Peck disputed last night after the verdict.

"I found Colin Ferguson to be amoral without regard for his fellow man," Peck said. "He was born of privilege and is completely devoid of human feelings. He did something bad. You don't have to be crazy to do something bad."

After Ferguson took control of his case, with the aid of numerous legal advisers, he claimed he was asleep when someone else took his gun and opened fire.

Though 15 passengers took the stand and identified him as the shooter, Ferguson argued in a three-hour closing statement Thursday that no credible witnesses had picked him out.

He also made a plea for sympathy: "Vindicate Mr. Ferguson. Do not destroy his life more than it has already been destroyed . . . he has suffered."

One alternate juror who was excused Thursday night but returned for the verdict said she would have found Ferguson "guilty without a question." But she said Ferguson's three-hour closing statement was a very effective bid for sympathy.

"For the last fifteen minutes, I almost forgot it was Colin Ferguson, when he was asking for our sympathy . . . he was playing with our emotions," said Cathy E. Schwenk of Long Beach, a computer equipment buyer for Beth Israel Medical Center.

Rose said each time the jury came into the Mineola courtroom with questions, Ferguson grew more optimistic because Kuby had predicted guilty verdicts within a half an hour.

Early in the evening, prosecutor George Peck said it wasn't surprising the jury took some time.

"They only got the case around eleven o'clock this morning, and it's a ninety-three-count indictment," he said. "In complicated murder cases with multiple counts, it's not uncommon for a jury to deliberate for more than one day."

The Verdict

Guilty of six counts of 2nd-degree intentional murder.
Guilty of 19 counts of attempted murder.
Guilty of two counts of weapons possession.
Guilty of one count of reckless endangerment.
Not guilty of 25 counts of aggravated harassment.