Winning at the Casino and Losing in Court

In my last 3 posts I have been discussing The Baccarat Case edited by W. Teignmouth Shore in which Sir William Gordon-Cuming lost his reputation when he was accused of cheating at baccarat in 1891. His attempt to restore his honour by a defamation action against his accusers proved disastrous when the jury took a mere 13 minutes to dismiss his claim of slander.

I thought there would be no further major cases involving cheating at baccarat for the game is among the simplest of card games but I was wrong.

In 2016 professional American gambler, Phil Ivey, went to trial against Genting Casinos in England. He was seeking to collect 7.7 million he had won in two sessions of gambling at Punto Banco, a variation of baccarat. (Ivey is also known as one of the best poker players in the world.)

Unlike the casual game of baccarat played in the English countryside in 1891 by Sir William, the trial judge in the Ivey case, Mr. Justice Mitting, explained the casino game of today had been statistically studied to establish the house had an advantage of "1.24% if player wins and 1.06% if banker wins".

Mr. Ivey undertook to shift the odds. Justice Mitting described Ivey's approach to gambling:

The claimant's principle is, by a variety of techniques, to

reverse the house edge and play at odds which favour him. He

does so by means that, in his opinion, lawful. He is what is

known, in particular on the other side of the Atlantic, as an

"advantage player". He is jealous of his reputation and is

adamant that he does not cheat. His principle is to find and

apply accurately "a legal way to beat the house".

His method at Genting was “edge sorting”, a card playing strategy I had not heard of before this case:

"Edge-sorting" is possible when the manufacturing process causes tiny differences to appear on the edges of the cards so that for example, the edge of one long side is marginally different from the edge of the other. Some cards printed by Angel Co. Limited for the Genting Group (which owns Crockfords) have this characteristic. The machine which cuts the card leaves very slightly more of a pattern, a white circle broken by two curved lines, visible on one long edge than on the other. The manufacturers assert that this is not a defect but is within a contractually specified tolerance of up to 0.3 millimetres. Before a card is dealt from a shoe, it sits face down at the bottom of the shoe, displaying one of its two long edges. It is possible for a sharp-eyed person sitting close to the shoe to see which long edge it is. The information thus gained is only useful to the punter if he knows or has a good idea of what the card is.

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Three conditions must occur before the punter can gain that knowledge: (1) the same shoe of cards must be used more than once; (2) cards with a face value of 7, 8 or 9 must be turned through 180 degrees by comparison with all other cards; (3) when reshuffled no part of the shoe must be rotated. Step (2) is the process known as edge-sorting.

Mr. Ivey and a Chinese gambling associate persuaded the croupier, with the approval of her supervisor, to turn the 7, 8 and 9 cards the required 180 degrees because they were superstitious and the new aligment would be lucky for them. Accustomed to gamblers with “lucky” systems which inevitably are losing systems the casino humoured the high rollers.

It was only when the casino reviewed hours of tapes that it determined Mr. Ivey had used “edge sorting” to gain the advantage he needed to win millions of dollars. They refused to pay saying he had cheated.

Mr. Ivey sued the casino. He forthrightly acknowledged what he had done and said it was not cheating. He had never touched the cards and casino supervisors had allowed the cards to be handled by the croupier as he requested.

Justice Mitting disagreed. He stated:

The fact that the claimant is genuinely convinced that he is not a cheat and even that that opinion commands considerable support from others, - see for example, Dr. Jacobson, - is not determinative of the question. It is necessary to analyse what the consequences are of what he did in relation to the game that he was playing. They were threefold.

(1) He gave himself an advantage, throughout the play of the sixth and subsequent shoes, which the game precludes – knowing, or having a good idea, whether the first card was or was not a 7, 8 or 9. That is quite different from the advantage which may accrue to a punter as a result of counting the cards, so that very near to the end of the shoe he may obtain a legitimate advantage by doing so.
(2) He did so by using the croupier as his innocent agent or tool by turning the 7s, 8s and 9s differentially. He was not simply taking advantage of an error on the part of the croupier or an anomaly produced by a practice of the casino for which he was not responsible.
(3) He was doing so in circumstances in which he knew that she and her superiors did not realise the consequence of what she had done at his instigation. Accordingly, he converted a game in which the knowledge of both sides as to the likelihood that player or banker will win - in principle nil, - was equal into a game in which his knowledge is greater than that of the croupier and greater than that which she would reasonably have expected it to be.

This in my view is cheating for the purposes of civil law. It is immaterial that the casino could have protected itself against it by simple measures. The casino can protect itself by simple measures against cheating or legitimate advantage play. The fact that it can do so does not determine which it is.

The case made its way to the English Supreme Court. Probably only a lawyer such as myself would  find it interesting to watch the oral argument which is easily available online.

While Mr. Ivey’s counsel pointed out all actions with regard to the cards were consented to by Genting staff, the Justices were troubled by the manipulation of the cards. They considered the subterfuge of “lucky” turning the cards to be more akin to physically marking or deforming a card than card counting.

Lord Hughes on behalf of the panel of judges dismissed the appeal. He said:

The (trial) judge’s conclusion, that Mr Ivey’s actions amounted to cheating, is unassailable. It is an essential element of Punto Banco that the game is one of pure chance, with cards delivered entirely at random and unknowable by the punters or the house. What Mr Ivey did was to stage a carefully planned and executed sting. The key factor was the arranging of the several packs of cards in the shoe, differentially sorted so that this particular punter did know whether the next card was a high value or low value one. If he had surreptitiously gained access to the shoe and re-arranged the cards physically himself, no one would begin to doubt that he was cheating. He accomplished exactly the same result through the unwitting but directed actions of the croupier, tricking her into thinking that what she did was irrelevant. As soon as the decision to change the cards was announced, thus restoring the game to the matter of chance which it is supposed to be, he first covered his tracks by asking for cards to be rotated at random, and then abandoned play. It may be that it would not be cheating if a player spotted that some cards had a detectably different back from others, and took advantage of that observation, but Mr Ivey did much more than observe; he took positive steps to fix the deck. That, in a game which depends on random delivery of unknown cards, is inevitably cheating. That it was clever and skilful, and must have involved remarkably sharp eyes, cannot alter that truth.

Where the baccarat case of 1891 involved the Prince of Wales and prominent members of “society” the 21st Century case featured as witnesses a professional poker player and Dr. Jacobsen, a former professor of mathematics, and David Mills, “a levelheaded and experienced English expert in casino gambling”. It is little surprise the modern case gained modest attention even though millions of pounds were at stake. It is hard to have a scandal gaining public noteriety when much of the focus is on mathematical calculation rather than a baronet surreptiously moving counters to deceive a Prince.

And Ivey lost another case in New Jersey over “edge sorting”. After winning its court case against him the Borgata casino has been pursuing Ivey for several years for the $10.1 million it paid out to him.

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Shore, W. Teignmouth (editor) - (2020) - The Baccarat Case and Cross-Examination and Argument in the Baccarat Case and The Judge and the Decision and Reflections on the Baccarat Case

The Judge and the Decision and Reflections on The Baccarat Case

Lord Coleridge

In my previous posts I have discussed the trial evidence and arguments in The Baccarat Case. This post will move on to the judge’s charge to the jury, the verdict and my thoughts.

The trial judge, Lord Coleridge, was far from neutral in his charge. Indeed, he gave a better argument for the accusers than Sir Charles.

The Justice spoke of the jury needing to make their decision upon what is on the surface (the evidence) not what is in the public mind about the case (the role of the Prince of Wales).

He dismissed the discrepancy between the précis and the evidence over the question of subtracting stakes as a matter on what “so very little turns”.

He asked rhetorically if the evidence of the young officer, Mr. Levett, from Sir William’s regiment, was so unlikely?

He clearly indicated his belief in the evidence of other accusers.

He disliked the mockery of Mr. Lycett Green by Sir Edward and goes so far as to make the argument for the defendants that Mr. Lycett Green was the man who, from the start, stood resolutely by his word and was strongly ready to have it out with Sir William on the night of the accusations.

He doubted the monarchy would suffer much harm if it was known the Prince of Wales occasionally participated in gambling. He questioned anyone giving up his honour over what could be in the court’s opinion but a minor issue for a scandal. He suggested a man might prefer death to dishonour.

In the end he adopted the language of generations of judges who want the jury to know and follow what the judge thinks about the evidence but seek to avoid being overturned on appeal for interfering with the duty of the jury to decide the facts by larding his charge with repeated comments of “it is for you to say”.

I do not believe the lengthy arguments of counsel and the biased summing up of the case by the trial judge had an impact upon the jury for there was barely time to clear the courtroom before there was a verdict. The jury took but 13 minutes to reach its decision in favour of the accusers. The swift decision meant they considered the evidence overwhelming.  

I have had a jury trial in which the jury took 15 minutes to acquit my client. It was a striking vindication for my client.

In the baccarat case it was always going to be very difficult to convince a jury that a man of honour, especially one who has faced death in battle, would succumb to pressure, even be it from the highest of the realm, to sign an incriminating document when he had never cheated.  

In a criminal proceeding the admissibility of such a written form of confession would be challenged as signed under duress and with an inducement to sign. In a civil case it was going to be admitted. While Sir Edward had a sound argument on the pressure applied a jury was bound to give the signature significant weight.

Going to trial meant 5 accusers would testify against Sir William. While not impossible, the combination of so many opposing witnesses and the signed document made an action daunting. I would have strongly advised Sir William against commencing the action. The moment of “folly” when he signed the document was compounded by going to trial.

In many cases of defamation it is pride, as much or more than honour, which is at stake. It is dangerous to go to court upon an issue of pride. A defamation action is better justified when there is financial consequence. When an accusation is limited to damage to character it is often best to let time obscure the personal sting and the memories of others with regard to the purported misconduct rather than have the accusations reinforced in court.

Under cross examination in the baccarat case it was clear that Sir William, had “silence” prevailed, never would have sought to clear his name. It was the knowledge of the event by “society” - his class - that drove him to sue his accusers.

In this century there are attempts to shield disgraceful actions through non-disclosure agreements. They are often no more successful than the private agreement in the late 19th Century

The baccarat case was the sensation of the time, not so much because of the accusations of cheating at cards in high society, but from the involvement of the Prince of Wales. The scandal for the Prince was not his involvement in card games where there was cheating but that he took part in gambling. The public was unimpressed that he could casually participate in gambling, even bringing the counters, with no consequences when it was a crime to play cards for money for the average Englishman.

I cannot know if Sir William cheated but the evidence was overwhelming. It was a desperate gamble for him to insist on a trial. His counsel had to know the odds were much against Sir William. As inevitable his gamble was lost in a very public, very painful and very expensive way. Many in the public saw Sir William as wronged. Reading the transcript I disagree. I would have been shocked by a verdict in favour of Sir William.

Yet it is striking how a reputation was risked and lost over what were modest sums to the participants. 

The editor of The Baccarat Case suggested that had the accusers and accused been able to meet they could have thrashed out the question between themselves.

Sir Patrick Hastings in his book, Cases in Court, while discussing libel suits where the issues were less than monumental said:

If there is any moral to be derived from actions such as these, it may perhaps be found in the suggestion that a little common-senses is the best andidote for tactless speech; but it is a lesson which seems never to be learned and perhaps it never will.

Was it much ado about nothing? Integrity is always important. In 2007 the Law Society of Saskatchewan celebrated its Centennial. I was a member of the committee that organized Centennial events. The committee thought about the word that we thought best characterized the goals and conduct of the lawyers of our province over the 100 years. We chose the word “integrity”.

Should what is minor, a cheating of insubstantial amounts to the participants at a private party, have escalated to a major court action that preoccupied the nation? In the world of the 21st Century I could not see such an allegation of cheating becoming a cause célèbre.

That conclusion does not mean our culture does not have its own taboos. Victorian hyper-sensitivity to questions of honour has shifted in the 21st Century to social issues. Now there is public shaming on the platforms of social media for those who breach or even only appear to break the expectations of society.

And if cheating at baccarat seems an issue only for the 19th Century my next post will be about a 21st Century case of alleged cheating at a form of baccarat that involved millions of dollars.

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Shore, W. Teignmouth (editor) - (2020) - The Baccarat Case and Cross-Examination and Argument in the Baccarat Case

Cross Examination and Argument in The Baccarat Case

Sir William Gordon-Cumming giving evidence with, I believe,
the Prince of Wales observing the testimony

In my previous post I provided a review of The Baccarat Case. This post will delve into addresses of counsel and the cross examination of the key witness in the trial. 

The plaintiff, Sir William Gordon-Cumming, had the tasks of explaining how his actions were not cheating, what he did when confronted and why he signed the dishonouring agreement to secrecy. 

From his opening statement in the trial, Sir Edward Clarke, Q.C. and Solicitor-General, strove mightily to convince the jury the statement signed by Sir Henry was not an admission of guilt but rather an expression of innocence. His eloquence was striking but the prospects of success for Sir William were grim.

In the language of that day I thought it unfortunate Sir William did not consult legal counsel before signing the fateful document. No lawyer would have ever let him near a pen.

As set out in my previous post Sir William denied cheating but going into court also means facing cross-examination. Sir William’s explanations were shredded by Sir Charles Russell, Q.C..

Credibility often hinges on plausibility. Sir William’s explanation that he held counters in his hands during the game so they would not fall off the table sounded convenient rather than an explanation.

His honour evaporated as he acknowledged he had not pressed to know his accusers and to confront them. He described his inaction as an “act of folly” on his part. A man of honour would not shrink from facing his accusers be they one or five. By contrast, his primary accuser, Mr. Lycett Green, sought such an immediate confrontation.

For a man who has risked his life in battle for his country to say he “lost his head” when faced with accusations of cheating was improbable.

In his opening address Sir Edward had advanced a clever argument asserting the Prince of Wales and General Williams would never have signed the document if they believed Sir William actually cheated, for they would be covering up misconduct.

However, when it came time for Sir William to provide the evidence needed to support the argument he became entangled in trying to explain that while he signed because Lord Coventry and General Williams told him it was best for him to sign to avoid scandal they did not believe he was guilty.

A letter from Lord Coventry, General Williams and the Prince of Wales to Sir William destroyed any argument they did not believe he was guilty. The letter spoke of overwhelming evidence against him and stated:

In this we have dealt with you as old friends and in your interest, but we must plainly tell you we consider we have acted quite as leniently as we possibly could under the painful circumstances of the case.

(Sir William was ambushed at trial by this letter and other letters not disclosed before trial. Modern rules to prevent the concealing of evidence would have prevented their use in a current trial and probably drawn sanctions against the party who had withheld the evidence.)

The closing argument of Sir Charles aptly described Sir William as doubly condemned. He was condemned by the direct evidence of the defendants and he was condemned by himself, especially by his actions.

In closing Sir Edward boldly stated that in his opening he had not been as critical of the defendants and their witnesses as might be expected because he had hoped that the defendants, upon hearing Sir William swear he had not cheated, would accept his evidence and not testify against him. It was a breathtaking argument. The defendants had never accepted Sir William’s assertions he had not cheated. To have thought they would change their minds by hearing him testify defies reason.

Sir Edward called the evidence of Mr. and Mrs. Green and Mr. Arthur Stanley Wilson “the random recollections of inexperienced and youthful persons” and suggested all those who testify to cheating on the second night are “persons who come prepared to see a thing who say afterwards that they saw it”. 

He says the précis should be accepted over the evidence of the witnesses where there is contradiction between the document and the evidence. It is a major problem for his argument that the précis was never given to the accusers to review before it was signed.

Sir Edward strove to portray Sir William’s play as “an ordinary procedure in playing the game” of doubling up stakes after a win for three coups in a row. He asserted the accusers were little experienced in the game of baccarat and it was a lack of understanding of how the game was played that caused them to be mistaken that Sir William had cheated. It was the best he could do in the face of their clear evidence that they saw cheating.

Sir Edward moved to the offence by saying Mrs. Wilson, her son, daughter and son-in-law acted improperly in not bringing the matter to Mr. Wilson’s attention. Unfortunately, Sir Edward in the end had to deal with what happened rather than what he asserts should have happened.

He mocks Mr. Lycett Green as a man of 30 whose sole occupation is being Master of Hounds. He further chides him for writing a note to his mother-in-law rather than immediately challenging Sir William.

He calls Mrs. Wilson’s evidence “perfectly ridiculous” on her observations of cheating.

He appropriately raises that no one prior to the night of the accusations had considered Sir William a dishonourable man and why would he risk his honour over such trivial amounts. Yet he never dealt with Sir William, not seeking to confront his accusers that night while Mr. Lycett Green wanted to confront Sir William.

In the end Sir Edward sought to reverse the dishonouring document and put Sir William upon the moral high ground by claiming that he signed  in order to prevent embarrassment and scandal falling upon the Prince of Wales. He was arguing Sir William sacrificed his honour for the good of his nation. Unfortunately for the argument Sir William’s subsequent letters never mentioned such an intention.

In my third post I will discuss the judge’s charge to the jury, the verdict and my thoughts upon the case.

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Shore, W. Teignmouth (editor) - (2020) - The Baccarat Case

2020 Shortlists for the Arthur Ellis Awards for Canadian Crime Fiction

I had forgotten the Arthur Ellis shortlists would be announced tonight when I said this post would be about The Baccarat Case. My next post will be the second post on that book.

With regard to the Awards, as with virtually every part of life, tradition was upended in the announcement of the shortlists by the Crime Writers of Canada. Instead of being announced  at a series of four events held across Canada they were released online a short time ago.

2020 Shortlists 

Best Crime Novel Sponsored by Rakuten Kobo

Greenwood by Michael Christie

Fate by Ian Hamilton

Hideaway by Nicole Lundrigan

The Last Resort by Marissa Stapley

In the Dark by Loreth Anne White

Best Crime First Novel Sponsored by Maureen Jennings

Nobody Move by Philip Elliott

Blindshot by Denis Coupal

Past Presence by Nicole Bross

Best Crime Novella Sponsored by Mystery Weekly

Blood Ties by Barbara Fradkin
Too Close to Home by Brenda Chapman
The Goddaughter Does Vegas by Melodie Campbell
The Woman in Apartment 615 by Devon Shepherd

Best Crime Story Sponsored by Mystery Weekly

In Plain Sight by Y.S. Lee
Closing Doors by Peter Sellers
The Dead Man's Dog by Zandra Renwick

Best French Crime Book

Les offrandes by Louis Carmain
Tempêtes by Andrée Michaud

Ghetto X by Martin Michaud

Le tribunal de la rue Quirion by Guillaume Morrissette

Le cercle de cendres by Felix Ravenelle

Best Juvenile or YA Crime Book Sponsored by Shaftesbury

Tank & Fitz: The Case of the Tentacle Terror by Liam O'Donnell & Mike Dean

The Grey Sisters by Jo Treggiari

Keep This to Yourself by Tom Ryan

Ghosts by David A. Robertson

Best Nonfiction Crime Book

The Missing Millionaire: The True Story of Ambrose Small and the City Obsessed with Finding Him by Katie Dobbs

The Billionaire Murders by Kevin Donovan

The Court of Better Fiction by Debra Komar

The Forest City Killer: A Serial Murderer, a Cold-Case Sleuth, and a Search for Justice by Vanessa Brown

Murdered Midas: A Millionaire, His Gold Mine, and a Strange Death on an Island by Charlotte Gray

The Unhanged Arthur Award for Best Unpublished Crime Manuscript Sponsored by Dundurn Press

Bert Mintenko and the Serious Business by B.L. Smith

Henry's Bomb by K.P. Bartlett

One Bad Day After Another by Max Folsom

The Dieppe Letters by Liz Rachel Walker

The River Cage by Pam Barnsley

The biennial Grand Master Award is presented to Peter Robinson.

Out of all the books above I have read but one, The Billionaire Murders.Congratulations to all of the shortlisted books and to Peter.

The winners will be announced across Canada on or about May 21 

The Baccarat Case edited by W. Teignmouth Shore

Lord Coleridge presiding at the Baccarat Case with his wife and other ladies of society seated beside him on the bench

The Baccarat Case edited by W. Teignmouth Shore (1932 - The Notable Trials Library) - In the fall of 1890 His Royal Highness, the Prince of Wales, was the banker and General Owen Williams was the croupier in the card game of baccarat on two evenings at, Tranby Croft, the English country home of Mr. and Mrs. Arthur Wilson. The stakes for the men, 5 - 30 pounds, were modest for the gentlemen. The ladies played for shillings. 

Sir William Gordon-Cumming, a baronet in his early 40’s, had had a distinguished career of 23 years in the Scots Guards Regiment of the British army. He was lieutenant-colonel in his regiment. His counsel described him as “not a man of scanty means”. Sir William did very well each evening though the 225 pounds he won was insignificant to him. (The stakes would have been high for most Britons. It is estimated the current value of the 225 pounds would exceed $20,000.)

While the party which had gathered for the Doncaster races was still at the Wilson home Lord Coventry and General Williams advised Sir William that he was accused of cheating at cards. Sir William stoutly denied cheating. He said he told them it was a “foul and abominable charge”.

Lord Coventry and General Williams subsequently brought to Sir William a document “his signing of which they told him was absolutely necessary in order to avoid a terrible social scandal”.

In the opening statement of the trial Sir William’s counsel, Sir Edward Clarke, Q.C. and Solicitor-General of England, quotes a précis prepared by Lord Coventry and General Williams about a week after the events. It stated:

….Sir William Gordon-Cumming systematically placed a larger stake on the table, after the card had been declared in his favour, then he had originally laid down, and when the cards were against him he frequently withdrew a portion of his stake, by these means defrauding the bank.

The précis continues later that:

…. as a condition of silence, Sir William Gordon-Cumming must be made to sign an undertaking never again to play cards for the rest of his life.

The précis acknowledges Sir William protested his innocence even to the Prince of Wales but:

... was told it was utterly useless to attempt a denial in the face of the distinct evidence of so many totally unprejudiced persons, whose interest it was that no scandal should have happened in the house.

And later, before he signed:

…. They clearly pointed out that his signature to this would be a distinct admission of guilt.

The document signed by Sir William and the other men stated:

In consideration of the promise made by the gntlemen whose names are subscribed to preserve silence with reference to an accusation which has been made with regard to my conduct at baccarat on the nights of Monday and Tuesday, the 8th and 9th of September, 1890 at Tranby Croft, I will on my part solemnly undertake never to play cards again as long as I live.

As inevitable there was no silence and Sir William’s reputation was besmirched across the land.

His claim for defamation was tried before the Chief Justice of England, Lord Coleridge, and a jury.

In his stirring opening Sir Edward Clarke, Q.C. and Solicitor General, who was counsel for Sir William, said he was there to “defend a soldier’s honour”.

Sir William testified he had never cheated.

On cross-examination Sir William acknowledged he sometimes held the leather counters (chips in the gambling language of today) in his hands after placing his stake but denied ever adding to or subtracting from his stake after the cards were dealt. In my next post I will discuss at length his cross-examination.

The Prince of Wales was called as a witness and said he had not seen any cheating. He indicated he was not paying close attention to the actions of the players.

General Williams also testified he had not observed any cheating. That he, a close friend for years of Sir William, believed Sir William had cheated was clear from his words and actions after that night. While belief is not evidence it was harmful to Sir William.

Young Mr. Arthur Stanley Wilson, the son of the owner of Tranby Croft, testified about seeing the cheating on both nights. He said he never raised the issue during the playing as there were ladies present.

Mr. Berkley Levett, a junior officer in Sir William’s regiment, directly stated he saw Sir William add counters by dropping them from his hand hovering over his bet after the cards were played. He quoted Mr. Wilson as saying “it is too hot”. He spoke of a subsequent meeting with Sir William after the matters became public in which he said he would say he was mistaken for the sake of the regiment.

Mr. Lycett Green was the leader of the accusers. Though he only witnessed the cheating on the second night he reacted most strongly by leaving the table and writing a note to his mother-in-law, Mrs. Arthur Wilson, that he had witnessed cheating. The note was delivered by the butler to her at the table while the game continued. He was eager to confront Sir William that night if Sir William denied the cheating. On cross he was emphatic that he never saw Sir William reduce his bet when he saw the cards were unfavourable.

Mrs. Lycett Green was definite that she saw cheating and did not waver on cross.

Mrs. Arthur Wilson was equally definite that she saw cheating. On cross she was certain that she witnessed cheating. She brushed aside questions on why she did not instantly stop the game when she saw cheating.

None of the accusers were shown by Sir William in the language of the day as “unfriendly” towards him.

The précis proved unreliable on its details. As an example, there was an absence of evidence on withdrawing stakes. The evidence was on adding stakes.

My next post will further discuss the evidence of Sir William and the lengthy arguments of counsel.