Setback in Colorado -- Judge ‘Disapproves’ Poker Ruling

It was hailed as a monumental victory for poker. A jury had ruled that poker was a game of skill, and a man was exonerated as a result of the decision. Now, just over a year after this tumultuous story began, an appellate judge has disapproved of a trial judge’s decision that allowed expert testimony in support of poker being identified as a game of skill.

“I was shocked when I found out the district attorney was even going to appeal it in the first place, and then I was even more shocked at the judge’s ruling,” said Kevin Raley, a Colorado engineer who was found not guilty of ‘illegal gambling’ after his bar poker league was raided by local law enforcement in August 2008. “It just amazes me that we’ve gotten to this point, that the D.A. feels that there’s time and value to the people of Colorado for this much of his time and attention.”

In January, a five-person jury found Raley not guilty of illegal gambling, a petty offense punishable by a maximum fine of $100. However, immediately following the ruling, the district attorney appealed the trial judge’s decision to allow Raley’s attorney to defend him with expert testimony that poker was a game of skill. That expert testimony came from Dr. Robbert Hannum, a University of Denver statistics professor that the Poker Players Alliance had brought in.

Earlier this month, Chief Judge James Hartmann announced that he agreed with the district attorney, disapproving the trial judge’s decision to allow the expert testimony and stating, “The activity was gambling … and the activity was not a bona fide contest of skill.”

Raley will file an appeal to the Colorado Supreme Court in the next few weeks.

Why The Decision Was Disapproved

In his eight-page decision, Hartmann cited 1989 case law that identified poker as gambling, even as it acknowledged that “while poker…might involve some skill, these games certainly are contingent ‘in part’ upon chance, and when, as here, the games involve risking a thing of value for gain, they constitute a form of gambling.”

As a result of that case, Hartmann argued that the trial judge should have “excluded the testimony of Dr. Hannum as being irrelevant.”

Todd Taylor, Raley’s attorney, says that Hartmann misinterpreted the law.

“It appears to me that the district court judge misunderstood the nature of law in the state of Colorado,” said Taylor. “He found that because poker is based in part on chance, then it’s gambling. If that’s the case, there are all sorts of games that would be considered gambling, like sitting down to play Monopoly.”

Colorado law identifies ‘gambling’ as “risking any money…for gain contingent in whole or in part upon lot, chance…over which the person taking the risk has no control.” It specifically excludes amongst other things, “bona fide contests of skill.”

Raley believes that public knowledge concerning poker has increased so much in the past decade that a 1989 mentality of the game — where the judge acknowledged that the game may contain ‘some’ skill but did not identify it as a ‘bona fide contest of skill’ — does not hold up today.

“The whole attitude around poker in public perception has changed in the last 10 years,” said Raley. “Poker has come out from behind the curtain, and it’s no longer a bad thing to be a poker player. I think it’s time this state catches up.”

The Effects of This Ruling

While Hartmann’s ruling will not affect Raley personally since he was already found not guilty and cannot be retried, it does influence how judges will conduct future illegal gambling trials in the state. That’s why Raley is appealing the decision, because he wants poker players to be exempt from any future illegal gambling charges.

“From the beginning, this case has been about more than just me and my friends,” said Raley. “This is about all poker players.”

However, Raley has a tough road ahead of him if he hopes to overturn the most recent ruling. According to Taylor, the Colorado supreme court only hears about 85 of the 1,200 cases it is petitioned for each year. In other words, their chances of getting a crack at the highest court in the state are pretty much similar to hitting a three-outer on the river. Possible, but hardly probable.

Still, Taylor believes this is exactly the kind of case the court would want to hear.

“I think that this case has more potential than most cases because you have a conflict in ruling between the district court and the appellate court; it is an issue of statewide concern; and the Colorado supreme court has not issued a ruling on a case concerning the gambling statute since probably the ‘80s or ‘90s,” said Taylor. “It’s been a number of years since the Colorado supreme court has weighed in on this issue, and they may feel like this is the time to do so.”

According to the PPA state director of Colorado, Gary Reed, there are no less than 15 poker-related cases that have been put on hold as a result of the outcome of Raley’s case.

Reed believes Hartmann’s ruling was “a political decision,” influenced by the state administration to ensure that poker would not be able to spread outside of Colorado’s already established gaming zones.

There is no firm timeline on when the Colorado supreme court has to let Raley know if it will hear his case. According to Taylor, the court usually makes its decision whether or not it will accept a case anywhere from six weeks to six months after an appeal is filed. Taylor said they will file the appeal within a few weeks.

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