The art of poker goes to court

DENVER —  Let’s say you’re playing poker and you need one more diamond for a flush. The dealer turns a card, reveals a diamond and you win the hand. Was it skill or luck?

The answer is affecting the fates of people across the country accused of breaking anti-gambling laws -- people like Kevin Raley of Colorado.

As an engineer, Raley finds that the mathematics of poker come easily, and he’s pretty good at keeping a blank face. Reading other people, though, is something he’s always working on. “It’s something I’m better at today than I was five years ago,” said Raley.

This goes to the point that Raley, 44, is trying to make: The better he gets, the more he wins.

Arrested a year ago for running a $20 buy-in Texas Hold ‘Em tournament at a bar in Greeley, but acquitted by a jury, Raley now hopes to convince the Colorado Supreme Court of what he says is obvious to anyone who really knows the game -- that poker hinges more on skill than chance.

Poker, especially Texas Hold ‘Em, has exploded in popularity in recent years, with professional tournaments earning television coverage and fan followings for major players.

Most states generally tolerate poker as long as it’s confined to games among friends in which no one makes a profit other than players. In Colorado, it’s illegal to participate in a game in which rake -- or a commission fee charged by the poker operator -- is taken.

It’s also one of 37 states where a game of skill doesn’t qualify as gambling, said Chuck Humphrey, a Colorado-based lawyer and expert in gambling laws.

(California law doesn’t distinguish between skill and chance. It bans some games, such as faro and monte, but does not single out poker.)

At his January trial, Raley argued that not only was poker a game of skill, but that his game had been among friends. Prosecutors maintained that it was neither.

In a review of Raley’s case last month, a judge said that poker relies heavily on chance. “A poker player may give himself a statistical advantage through skill or experience, but that player is always subject to defeat when the next card is turned,” Weld County District Judge James Hartmann wrote.

Tim Ouellette disagrees. Ouellette, 46, of Greeley, was arrested along with Raley, but charges against him were dismissed after Raley’s acquittal. “It’s not like roulette or craps, where you throw the dice and you have no control over it,” Ouellette said.

Raley is petitioning the Colorado Supreme Court to weigh in on the question of skill versus luck.

Other recent skirmishes include a South Carolina case in which five men were arrested in a 2006 raid on a game of Texas Hold ‘Em. They were convicted this year by a municipal court judge who said that he agreed that poker hinged on skill, but that he thought it wasn’t clear whether that was relevant under state law. The men are appealing their convictions.

In Columbia County, Pa., a judge dismissed charges in January against a man accused of running a poker game out of his garage, ruling that he hadn’t committed a crime because when skill predominates, it’s not gambling.

But in a second Pennsylvania case, a Westmoreland County jury last month rejected a man’s contention that the Texas Hold ‘Em tournaments he hosted in local fire halls were legal because they were games of skill.

The recent spate of trials represents a “radical break with the way poker cases have been handled before,” according to I. Nelson Rose, a law professor at Whittier Law School in Costa Mesa and gaming industry consultant.

Unlike with previous trials about poker, Rose says defendants are receiving financial and legal support from groups such as the Washington-based Poker Players Alliance and judges are permitting testimony about research concluding that poker depends on skill.

A central figure in several recent legal battles, including Raley’s, is University of Denver statistics professor Bob Hannum, who studies gaming mathematics. In games of chance, “it doesn’t matter what you try to do,” he said. “You can be playing against a monkey, and the monkey will do just as well as you.”

No so with poker, Hannum said. Numerous studies conducted in recent years all indicate that in poker the predominant factor is skill, he said.

But don’t tell that to Gary Norton, the district attorney in Columbia County.

“In Texas Hold ‘Em, there’s one choice: Hold or fold. That is not necessarily a skill as much as just having guts or not. It’s our position that this is gambling -- that there’s a huge element of chance in the dealing of cards,” Norton said.

Norton added that prosecution was prompted in part by the defendant’s acceptance of tips, which made his operation the equivalent of a casino.

Until a higher court rules on the chance-skill question, Norton said, he won’t shy away from prosecuting similar cases, although they’re rare.

“Do I enjoy sitting down with my friends and playing a little poker? Yes,” he said. “A private game of poker in a private home where the house is not taking a cut is not something I’m going to prosecute. But something I take very seriously is my oath to administer the law as it exists.”

In Colorado, Raley and Ouellette and the three friends arrested with them no longer play at their favorite bar, but at a friend’s home. And if they succeed in their petition to the high court?

“Kevin and I have talked about opening up a poker room of our own,” Ouellette said.