Luck vs Skill
The Trial (and Tribulations)
|From Backgammon Times, Volume 2, Number 2, Spring 1982.|
In case you missed it one of the biggest matches in backgammon was played in Portland, Oregon, in February. Wearing the black hat was the State of Oregon arguing that backgammon is a game of chance and therefore subject to Oregon’s stringent gambling laws. Wearing the white hat was Ted Barr, owner of Zemby’s Backgammon Club and a retail game store, The Game Gallery, syndicated columnist, and director of backgammon tournaments throughout Washington and Oregon.
Barr on Backgammon is a collection
of Ted Barr’s syndicated columns.
Barr insisted that backgammon is predominantly skill and therefore, like chess, darts, and pool, not subject to regulation under gambling statutes or city ordinances. At the end of the three-day trial the score was Backgammon 1–State 0.
The case, State of Oregon v. Barr, arose from the Northwest’s largest backgammon tournament, The Portland Marriott Open held at the Marriott Hotel in March of 1981. The tournament was sponsored by The Gammon Gallery and sanctioned by the Pacific Northwest Backgammon Association. Ted Barr and Associates from Seattle were the directors.
Barr had conducted the same tournament at a large resort hotel, Salishan Lodge, on the Oregon coast in the two preceding years. He decided to move the event to Portland in 1981 because his Portland associate, Dick Scofield, had been running weekly tournaments at Gambits Lounge in the Marriott for several months. He also felt the tournament would draw even better in a more metropolitan area which was more accessible to people from other cities.
The tournament was a success and ran smoothly just prior to the final, but as Barr and his family were checking out of the hotel he was confronted by two undercover police officers from the Portland Vice Squad. They placed him under arrest. It seems that three undercover detectives had participated in the tournament.
As Barr and his family were checking out of the hotel he was confronted by two undercover police officers from the Portland Vice Squad.
A top northwest backgammon player, Richard Packard, was also arrested for promoting gambling; he had made side bets on the outcome of matches in which he was not playing. Two other tournament participants were also cited for making bets with Packard.
The police allowed the event to finish and the prizes to be paid out. Barr called Gary Rhoades, an attorney he had clerked for in Portland while attending law school. Both felt the whole thing would blow over. But the Portland papers each did a story the next day and it soon found its way into the Seattle area newspapers and television stations.
“Suddenly I was the news,” said Barr. “The different images the media can portray of the same facts is frightening. I was labeled everything from local businessman-lawyer running a family oriented backgammon tournament to the Northwest backgammon czar extending his tentacles of operation.”
Barr and Rhoades expected Packard and the two contestants cited for betting with him to plead out; the prosecutor, they reasoned, would be happy with three convictions and not file the case against Barr.
That didn’t happen; the other defendants did plead guilty, but the prosecutor did not let up on Barr; he was charged with both counts.
Barr decided it was an ideal opportunity for a test case. Although the Washington and Oregon statutes pertaining to games of chance are identical, the penalties for doing so are not. A gambling violation of this type in Oregon is a misdemeanor, but a felony in Washington. For testing the issue, Oregon was the place.
After rejecting the prosecutor’s plea bargain offer, Rhoades and Barr contacted Marshall Amiton, a classmate of Rhoades and an expert in criminal law. Amiton was enthusiastic about the case. He was interested in gambling litigation and though Barr was right.
“This is important to us,” Barr said. “If we won we wanted to be able to use the case as precedent.”
On May 19th, Amiton filed a motion to dismiss the case on the grounds that the prosecutor’s complaint was not definite and certain because it lumped the two charges together. Regardless of the outcome, Amiton reasoned, it would not be certain which issue was decided, backgammon as a game of skill or side betting.
“This is important to us,” Barr said. “If we won we wanted to be able to use the case as precedent. If we lost we wanted to know which issue we were appealing.”
On June 4th, Judge Donald Londer granted the defendant’s motion and dismissed the complaint. The State was given thirty days to refile or pass. On the thirtieth day the prosecutor refiled.
On August 3rd, Barr filed a motion to dismiss on the basis of discriminatory prosecution. This action was based on two factors: (1) Tournaments conducted in Portland by other tournament directors had been allowed to operate without police intervention both before and after the Marriott bust. (2) Neither the hotel nor the sponsor of the event were citedonly the director hired to run the event.
Testimony at the trial later revealed that a rival tournament director in Portland had brought the Marriott tournament to the attention of the Portland police. The tournament director, in fact, had spent several hours instructing police officers how to play backgammon and spot wagering at backgammon tournaments.
A rival tournament director had spent several hours instructing police officers how to play backgammon and spot wagering at backgammon tournaments.
Shortly after the discriminatory prosecution motion all organized backgammon in Portland came to a haltand stayed that way for seven months pending the outcome of the trial.
On October 27th, Amiton and Barr argued and lost the motion to dismiss before Judge Casciato and the trial was finally set for January.
A major problem arose at this point. “We really wanted to continue with the case,” Barr recalled, “but the cost had become prohibitive. It seemed like a shame to come this far and then bag it.”
Barr then decided to stop the case and plead out. By this time, however, the prosecutor had changed his plea offer to not only a $500 fine, but a one-year jail sentence probation and stipulation that Barr could not operate backgammon tournaments anywhere if cash prizes were to be awarded.
Before making his final decision, Barr received a chance phone call from Kate Wattson of American Backgammon Championships in New York. Kate had been monitoring the case and, after Barr briefed her on the situation, she encouraged him to go ahead. She promised to cover half of the additional expenses of the trial and to try to enlist the help of Paul Magriel, former world champion and foremost authority on the game, and her husband Henry Wattson, tournament director of the World Amateur Championships, as expert witnesses.
Kate decided to become involved for several reasons: “It seemed a shame Ted could not finish a case in which he had put so much time, effort, and money. Also I believed, like Ted, that this issue needed to be resolved and that a favorable court precedent could really help backgammon everywhere. He seemed to be in the best position to win the case, given the facts, his legal background, etc., but it did not seem right that he should have to carry the financial burden by himself to win a case that potentially could be good for backgammon and all of us interested in the game.”
“I believed, like Ted, that this issue needed to be resolved and that a favorable court precedent could really help backgammon everywhere.”
Kate sent a check and recruited Paul and Henry to go to Portland and help out. Ted told the prosecutor what to do with his plea offer and filed a petition to reschedule the trial to February since Magriel would be in Nassau on the January trial date. The stage was now set for what could possibly be backgammon’s most important match, the State of Oregon v. Barr.
Barr and his attorneys decided to waive a jury. “When a jury returns a verdict on a case, with few exceptions, it can only be guilty or not guilty,” Amiton explained. “A judge, on the other hand, is free to comment on the rationale of his decision. We hoped to obtain a verdict that would directly address the major issue. We not only wanted to win an acquittal, we wanted the acquittal to be based on the court finding backgammon to be a game of skill, not chance. A judge can say that. A jury can’t.”
The State opened its case questioning the three police officers who had attended the tournament and participated undercover in the novice division. It was their opinion that backgammon is a game of chance. They testified that entry fees were collected at the tournament, the game was played, and prizes were awarded. They concluded that the tournament was an illegal gambling activity.
During cross examination, Amiton established that all three officers, although members of the vice squad who had made gambling arrests before, had little experience with backgammon. In fact, none had ever played the game until one week before the tournament (a competitor of Barr’s had given them instruction). Amiton argued that playing three or four games hardly qualified them to determine whether backgammon is a game of skill or luck.
The State’s final witness was Dr. Roger Nelson, head of the Mathematics Department and professor of probabilities at Lewis and Clark College in Oregon. Dr. Nelson testified that, although he had only been playing backgammon for two weeks (he learned from The Backgammon Book by Jacoby and Crawford), he is an expert on probabilities and game theory. Dr. Nelson demonstrated for the court how to play the game.
Nelson testified that there are actually two moves for each turn in backgammon. The first, a chance move, is the roll of the dice; the second is a personal move a player makes based on his roll. According to Nelson, a player’s background knowledge and experience could not overcome the tremendous impact the “chance move” had on the outcome of the game.
According to Nelson, a player’s background knowledge and experience could not overcome the tremendous impact the “chance move” had on the outcome of the game.
In response to Amiton’s questions, Nelson testified that long-run behavior (such as 100 flips of a coin) is easier and more accurate to predict than short run (1 flip of a coin). Amiton asked if the result of a series of games (tournament match) would be more predictable and would heighten the skill factor over a single game. Nelson conceded that it would.
Amiton moved for a judgment of acquittal for two reasons. First, the State failed to show that backgammon, especially in a tournament format, is a game of chance. Under Oregon law (the statute is identical in Washington and New York), in order for an activity to be a game of chance, luck must materially affect the outcome. Since the State did not show this to be true, Amiton argued, backgammon is not a game of chance and therefore is not subject to gambling restrictions.
Second, even if the court found backgammon to be a game of chance, for it to be illegal something of value must be risked. The State argued that the entry fee is a bet or something of value risked. But a number of cases in Oregon and elsewhere have decided that an entry fee is not a “wager” but only a “premium” paid for the opportunity to compete. By comparison, in a betting situation all that is known is the event upon which the payout is contingent and the amount to be paid; which of the two parties in the transaction is going to be the “payer” and which the “payee” is not known until the event is over. A tournament, of course, works differently.
On the second count, Amiton argued that there had been no evidence indicating anything other than social bets were made. Social bets are not illegal in Oregon.
Denied a judgment of acquittal, the defense opened its case with testimony from several Portland-area tournament players. Sandra Warren recounted the conflicting advice she had received from the police about backgammon’s legality. Jerry Himes, a tournament participant, stated that he saw no side betting during the tournament.
Barr’s attorney next called Henry Wattson. After identifying Wattson as the director of the world’s largest amateur backgammon tournament and expert at tournament formats, Amiton asked Wattson to describe the typical tournament player and the manner in which tournaments are conducted to minimize the luck and maximize the skill.
Amiton’s objective was to demonstrate that the typical backgammon player is a well educated, highly skilled strategist and not the “professional gambler type.”
Amiton’s objective was to demonstrate to the court that the typical player is a well educated, highly skilled strategist and not the “professional gambler type.” He also attempted to illustrate how carefully tournaments are organized and administered to minimize the role luck plays in the outcome.
Wattson started out as a defense attorney’s nightmare. Defense attorneys like their own witnesses to be brief, ideally limiting their answer to “yes” or “no.” The less said the less the opposition has to shoot at. Wattson was anything but brief.
“The man is a walking encyclopedia when it comes to backgammon,” said Amiton. “He is so full of knowledge about the game, the industry, its evolution, and its ins and outs as a business. His love and enthusiasm for the game just bubble out of him.”
What could have been a defense attorney’s nightmare turned out to be a dream. Wattson was sincere, interesting, involved, and concerned about the game; it rubbed off on everyone in the courtroom. Only Amiton was concerned how Wattson would hold up under Multnomah County Deputy District Attorney Steven S. Rickles’s cross examination.
“Henry was really cool under fire,” said Barr. “You could see how intently he was concentrating when responding to Rickles’s questions.”
Before dismissing Wattson, Amiton called on him to identify an unedited video cassette tape of the final match of the 1979 World Amateur Championships. The tape was entered as evidence so the judge could get a feel for what a tournament was like. Paul Magriel had called the match during the 1979 championship. After allowing it as evidence, the judge spent over two hours observing the match. Of course, some comments by Magriel in the voiceover (“What a roll. I can’t believe he pulled off a shot like that.”) sounded a bit suspect. But his commentary mainly emphasized the expertise and technique demonstrated by the players.
The defense saved it’s best witness for lastPaul Magriel.
When the prosecutor heard Magriel was actually in Portland to testify, he was not only surprised, but annoyed.
Because of his commitment to backgammon and his interest in this case in particular, Magriel had traveled across the United States to appear as an expert witness at the trial.
When the prosecutor first saw Magriel’s name on Barr’s witness list he thought it was a bluff. When Barr requested a trial postponement in january to accommodate Magriel’s playing in Nassau, he though “more manuevering.” But when he heard Magriel was actually in Portland to testify for Ted Barr, he was not only surprised, but annoyed.
Others were also impressed. The courtroom was packed on Friday afternoon with spectators waiting to see and hear X-22. Every prosecutor and lawyer in the courthouse who played backgammon was there to watch. Some even carried copies of Magriel’s Backgammon in hope of getting an autograph on the cover. Even the D.A. himself wandered in and out of the courtroom to hear Magriel’s testimony.
This wasn’t New York or even Los Angeles; it was Portland, Oregon. The issue wasn’t a poker game or crap shoot but whether several million Americans were going to be able to play the world’s most popular game in a tournament format for money. And this wasn’t some local expert; it was the Paul Magriel who had come all the way from Boston to testify on behalf of a friend, a friend who had also done something for backgammon. Not some backroom gambler but a lawyer-businessman who had a family to support, employees depending on him, and some loyal followers hoping he would win and continue promoting backgammon in their area.
It was important to them. It was important to the defendant. And it was important to Magriel.
“A witness like Paul can get away from you. He is so knowledgable about his subject,” said Amiton. “I’m convinced Paul is a genius. And not just when it comes to backgammon. A witness like that can run away and leave you, the judge, the spectators, and everyone behind.”
But Magriel did not. He was clear. He was succinct. He followed Amiton’s questioning perfectly. Amiton had worked with Paul for five hours the night before, preparing his questions and listening to a recording, which the judge had allowed, of Dr. Nelson’s testimony.
“I’m convinced Paul is a genius, but a witness like that can run away and leave you, the judge, the spectators, and everyone behind.”
“All the time I was preparing him for his testimony in his hotel room he was playing chess with one person, carrying on a conversation with someone else, and yet not missing a thing I was asking or telling him,” marveled Amiton.
Magriel not only demonstrated the technical aspects of the game but also discussed the theories that go with the game.
“As Dr. Nelson said, in every turn there is a chance move, the throw of the dice, and a personal move. It’s the personal move, the decision where to move your man after the dice have been cast, that is the essence of the game,” said Magriel.
“The roll of the dice does not force your play; it merely reduces your options. Even after rolling you may have as many as thirty or more options with respect to how to move the checkers. The successful player consistently selects the best move. The line between the best move and second best is very fine. Yet if one player consistently selects the best move, while another chooses second best, even out of thirty, the first player will aways win.”
Magriel concluded: “Backgammon is a game of enormous richness, subtlety, and depth. Chance is not a material factor.”
One rule an experienced trial attorney always follows is not to ever take on an expert witness on the expert’s subject. You can attack his credentials and credibility, but you must use your own expert to attack his subject.
You cannot fence with Magriel on backgammon. His credentials are hard to attack. But he had only one weak spot, and Rickles found it: Magriel is so well known, so well written about, and so frequently quoted that the only way to go after him is to quote statements of his which could be interpreted a number of different ways.
Rickles did an excellent job, but each time Magriel bounded back. When all else failed, he would flash a smile and remark innocently, “Did I say that? I don’t think I would ever make such a statement. I was being facetious.”
Rickles quoted Magriel in Sports Illustrated as saying, “I’m always at war with luck and disorder. I’m always trying to impose my will over the randomness of the dice, over what seemingly has no structure.”
Towards the end, Amiton commented that Magriel’s testimony ran contrary to Dr. Nelson’s, the expert witness for the prosecution. Nelson had quoted several times from Theory of Games and Economic Behavior, a standard text by John von Neuman and Oscar Morganstern. Magriel indicated that he was familiar with game theory and with von neuman and Morganstern’s book.
When asked why he was so familiar with von Neuman and Morganstern’s book, Paul replied, “I studied under Professor Morganstern at Princeton.”
“Game theory, however, really applies to games with imperfect knowledge, where something is concealed such as poker. Backgammon is not such a game. Everything is in front of you,” said Magriel. “The person who uses that perfect information in the most effective manner will win.”
When asked why he was so familiar with Nelson’s main source, von Neuman and Morganstern’s book, Paul replied, “I studied game theory and probabilities under Professor Morganstern at Princeton.”
Amiton concluded, “Your honor, the defense rests.”
After the closing arguments, Judge Stephen S. Walker found the defendant not guilty of promoting gambling by running a backgammon tournament. He concluded that backgammon is a game of skill, not a game of chance.
That is exactly what Barr, Wattson, Magriel, Amiton, and backgammon players everywhere wanted to hear.
On the issue of being in charge of premises where betting was taking place Walker did convict Barr of a technical violationno jail sentence. A $150 fine was suspended.
Bar’s reaction: “Naturally we were hoping to win both. We felt we were right on both but we won the big one, the one we really wanted. We’ll probably appeal the other charge but there is plenty of time to make that decision.”
What effect does this have on backgammon? It is hard to say. It certainly is going to improve the backgammon climate in Oregon.
Since Washington and Oregon’s statutes are identical Barr feels he has a good chance of convincing the gambling authorities in Washington to recognize the case, although they are not bound to.
Judge Walker concluded that backgammon is a game of skill, not a game of chance.
What about the effect of the case nationally? No state is required to follow the precedent set here. It is, however, difficult to ignore. If a policing agency wants to allow a backgammon tournament, they could cite this case as a basis. If they are resistant, at least other tournament directors and their attorneys will have some ammunition with which to fight. In reality, how much help the case will be is a guessbut it can’t hurt.
Barr is scheduling another major tournament at the Portland Marriott in May. He hopes to recoup some of his time and expense. In any event it should be quite a celebration.
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