Atticus Finch

What are the chances?

I’ve just discovered a great blawg, People v. State, through a “blatant shoutout” from Mark Bennett at Defending People, one of my favorite blawgs and all-around criminal defense lawyer inspirations.

So as I was whiling away my evening by spending a few minutes traipsing through the blawgosphere and smelling the virtual flowers, it occurred to me I should stop by and see what John Kindley’s doing over at People v. State. I was pleasantly surprised to find he had written a post announcing that “Law is like poker,” a post about one of my favorite games, but also (sort of) about one of my favorite cases and clients.

I also discovered that John Kindley is really good poker player. Making the money at the Big Event takes a lot of skill–no matter how much luck you might run into getting there. (He’s also a former competive chess player, just like one of favorite poker pros, Howard Lederer.) A criminal defense lawyer and a blawger and a poker player??? That’s my sort of guy.

John Kindley notes that “Jonathan Adler at the The Volokh Conspiracy asks himself the age-old question, “Is Poker a Game of Chance or Skill?” Jonathan Adler’s post, in turn, references this Los Angeles Times article about a Colorado poker case, in which I just happen to have been trial counsel and in which I’m still involved in the appeal. That’s my client, Kevin Raley, in the photograph smiling & gleefully playing poker.

(N.B. I take the admonitions offered by Scott Greenfield recently very seriously and share his conviction that blawging & client confidences do not mix. But since Kevin Raley has participated in the publicity surrounding this case, I’m making an exception to the Greenfield Rule.)

The jury found Kevin Raley not guilty of illegal gambling in connection with a Texas Hold’em poker tournament organized by some of his friends and played at a local restaurant and bar–a tournament played typically once per week among 15-30 people and which cost each player $20 to enter for the evening. (The case was locally profiled here.) The trial court allowed us to present the expert testimony of Dr. Robert Hannum, a professor of statistics at the University of Denver, who opined–without contradiction from any prosecution expert–that tournament poker, while possessing elements of chance, is a contest of skill.

So, to answer Jonathan Alder’s question, “Is poker a game of chance or skill?,” the answer is a resounding, “Yes.”

The prosecution was apparently upset that the jury found Kevin Raley not guilty, so off to the appellate races we’ve gone. The prosecution appealed the trial court’s ruling allowing Dr. Hannum to testify that tournament poker is a bona fide contest of skill (which is one of the exceptions to the offense of illegal gambling under Colorado law). For those who have nothing better to do, you can read the brief I filed on Kevin’s behalf here. The amicus brief filed by Thomas Goldstein on behalf of the Poker Players Alliance is here.

We won in the trial court, but we’ve had a setback in the first round of appeals. Kevin Raley is in no danger; he can’t be re-tried. At issue, however, is a criminal defendant’s right to present expert testimony related to an element of the offense. Since the appellate judge has now ruled, essentially, that “poker” equals “gambling” in Colorado (although the statute doesn’t define any specific game as gambling), it’s possible the Colorado Supreme Court will grant certiorari as to the issue of whether poker is gambling as a matter of law in Colorado.

In order to hedge our bets in the Colorado Supreme Court, we’ve been fortunate enough to convince two of Colorado’s best appellate lawyers to join the cause: Jean Dubofksy and Dean Neuwirth. The Poker Players Alliance will also likely file another amicus brief in support of the Colorado Supreme Court granting certiorari.

As a criminal defense lawyer, the most compelling issue to me in Kevin Raley’s case is whether a defendant has the constitutional right to present a defense through an expert witness when the expert’s testimony negates an element of the offense. But, as the media attention shows, the sexier issue for most other folks is whether poker is a game of chance or skill.  As John Kindley so aptly illustrates with this anecdote from Mark Twain, the issue of skill (or “science”) versus luck depends primarily on what side of the table you’re sitting on–and whether you’re winning or losing the game. (And don’t be surprised if Mark Twain gets quoted in our Petition for Certiorari. Thanks, John!)

Poker clearly involves chance in the random deal of the cards. But just as clearly, poker is different from true games of chance like roulette or slot machines. The easiest way to demonstrate this difference is to ask the question: Can you intentionally lose at the roulette table or at a slot machine? The Colorado Bureau of Investigation agent who arrested Kevin (and who assumed a false identity and tricked one of Kevin’s friends into inviting the CBI agent to play in the tournament) testified at trial that he intentionally lost during the time he was playing poker with Kevin and his friends. The CBI agent also admitted on cross-examination that he couldn’t intentionally lose at roulette or slot machines.

Poker involves a number of strategic decisions not found in true games of chance. And unlike in true games of chance, a player with the worst hand can still win the pot by using skillful and well-timed deception to bluff better hands to fold before the showdown. Try doing that the next time you’re in Vegas at the roulette table. (Actually, don’t. You’d likely get kicked out of the casino or arrested.)

Whether you have to be more than just lucky to be a good poker player is an interesting issue, but the issue John Kindley raised in his earlier post about poker and chess is more important. The State of Colorado allows its citizens to gamble on a regular basis–through both state-sanctioned lotteries and the establishment of gambling towns. In the case of the lottery, Colorado actively encourages gambling through advertising. Recently, the stakes for the gambling towns was raised to $100–that’s per hand, which makes the $20 per evening Kevin and his friends were playing with look pretty small in comparison.

In that context it’s hard for the State to maintain there is some inherent evil present in gambling–a dangerous vice from which its citizenry must be protected when stepping outside the geographical boundaries of Blackhawk or Central City. (Trust me, there’s nothing so special about Colorado’s gambling towns that it would lead you to believe they provide some extra protection against the wages of sin.) So why should Kevin Raley and his friends be prohibited from spending $20 over the course of an evening while enjoying each others company and playing a game they all enjoy…?

I’ll let my dear readers speculate. What I do know is that Kevin Raley is a great guy, not a criminal. He’s hard-working, decent and honest. I couldn’t have asked for a better client. He loves to play poker, but he’s no pro; he’s got a regular day-job. He’s just looking for some fun and relaxation with his buddies when he’s not working. But Kevin Raley is also a fighter. Pretty early on the prosecution offered to resolve his case with a $100 fine, but Kevin said, “No, thank you.” And so I got to fight the good fight for a client I really like, and with no real worries about lengthy prison sentences or destroyed lives. It’s a criminal defense lawyer’s dream.

But make no mistake. Kevin Raley plays hard. We’ve got some real talent rallying to the cause. So, while we may down the last round in this fight, don’t bet against Kevin Raley.

He just might win.