Did Jay Cohen Receive a Fair Trial?

1 March 2000
Now that that the grueling two-year first round of Jay Cohen's battle for justice is over, we can finally step back, take a breath and examine what happened. Thanks to the Government's marathon presentation of phone bills, wire transfer records, contracts and other various uncontested exhibits that probably cost the world three or four acres of forest and a whole lot of tax payers' money to print, I was able to get a head start on the thought process without worrying about missing anything important. By midway through the first week, the verdict was as predictable as the sun rising. In fact, I wrote this editorial as the chopped beef that is Jay Cohen was forced through the meat grinder that is the U.S. justice system, and I finished before the jury deliberated.

Although my coverage of the trial was from a biased perspective, I tried to remain as objective as possible. I confess, however, that I slipped a few times. Now I would like to completely free myself from attempted objectivity and share a few personal views.

I got to know Jay Cohen a little bit throughout the two weeks of the trial. One of the things that I share with him is the belief that the U.S. justice system is fair and is right. Having said that, I don't think anyone could rationally argue that the system is perfect.

Now that it's over, I can confidently say that the Jay Cohen trial perhaps exposes one or two of the system's imperfections.

It was Jay Cohen's civil right to choose whether his destiny would lie in the hands of a judge or a jury. He asked for a jury trial; he received a bench trial. Judge Griesa undeniably delivered the verdict through his instructions to the jury, but did he have a choice?

The Cohen trial was never a 'who dun it' case. Cohen freely admitted to operating an offshore Internet gambling business; very few of his alleged activities were disputed. The jury's job was to examine the facts and determine whether Cohen performed illegal deeds. It was Judge Griesa's job to determine what constitutes an illegal deed. And that he did.

The verdict hinged on the interpretation of the Wire Act, and the judge ruled that Cohen's alleged activities were illegal. Curiously, he cited no precedents in doing so. That stinks for Cohen and the industry, but the only alternative would be 12 laypersons decoding a heaping pile of legalese that has many experienced attorneys scratching their heads. I surely need not elaborate to suggest that some scary things that could happen under such a scenario.

Fortunately, there's a solution to this dilemma. It's called the appellate court, and you can bet that Cohen has his sights on getting the verdict reversed. His attorney, Ben Brafman, like the rest of the world, had the foresight to see what was coming, so he strategically scattered precise objections throughout the trial with an eye for doing battle again.

And while those in the online gambling business curse the evil Judge Griesa for kicking the industry in the teeth, consider that the judge cut Brafman quite a bit of slack by allowing him to persistently angle for acquittal during sidebars via spirited appeals that bordered on all-out tirades.

Brafman specifically exclaimed that that the judge was dead wrong on numerous occasions (including his summation) and used words like "offensive" and "terribly prejudicial" in describing the judge's rulings. At one point, he went off on the court clerk for shaking her head as he ranted.

It was quite obvious that Judge Griesa was not going to budge on his rulings, yet he consistently allowed Brafman to argue his points well beyond clarity. I perceived the judge's tolerance to be an intended opportunity, in light of the fact that Cohen had no chance of acquittal, for Brafman to lay a solid foundation for an appeal. Perhaps the strongest evidence of this was when the judge told Brafman just before deliberation, "You may very well win in the court of appeals, but I have ruled against you," as if to grant the defendant some leverage.

Lastly, I'd like to touch briefly on my overall sentiment: The Cohen verdict affirms a well known truth --that the world isn't fair and that people don't always get what they deserve. I've covered online gambling since its inception and I know very well that there are some good people and some bad people in this industry, just like there are in every industry. So, it's disturbing when one of the good persons is on the receiving end of what could amount to a hefty punishment.

The Government obviously wants to squash Net betting, but it isn't as interested in watching out for the consumer as it may appear. Plenty of crooked operators were ripe for the picking, but wiping out the bad guys would only be doing the industry a service. Besides, the bad guys are untouchable. So, instead of trying to bring the creeps that are ripping people off to justice, the feds sought to punish operators who didn't hide--operators who tried to play by the few rules that exist.

Jay Cohen conducted business as legitimately as he could; he took every step possible toward running World Sports Exchange legally. He used a major accounting firm to set up the business, he obtained a gaming license from the Caribbean's steadiest online gambling jurisdiction and he even went as far as paying the appropriate U.S. taxes on the company's earnings. He could have been very successful had he tried to mask his identity and hide what he was doing. In the end, his high profile, ironically, got him into this predicament.

Advocates of legalized online gambling should appreciate Jay Cohen's efforts. He undoubtedly came back to clear his name and avoid being a fugitive, but I'm certain, having engaged in a handful lengthy conversations with him, that he also wanted to fight this battle for the industry. To a certain extent, he took one for the team. Don't forget this.

Mark Balestra

Mark Balestra is the Managing Director at BolaVerde Media Group. He previously worked at Clarion Gaming and the River City Group where he was the publisher of iGamingNews. He lives in St. Louis, Missouri.