The Trial (and
of Oregon Promoter Ted Barr
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 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
Barr was cited for promoting gambling in the
second degree for running a backgammon tournament (“a game of chance”)
with an entry fee and prizes. He was also charged with allowing
bookmaking to take place during the event.
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
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
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 re-file or pass. On the thirtieth day the prosecutor
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 cited—only 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.
Shortly after the discriminatory
prosecution motion all organized backgammon in Portland came to a
halt—and stayed that way for seven months pending the outcome of the
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
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
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.”
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.
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
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
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
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
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
“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 its best witness for
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
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 knowledgeable 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
“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 always win.”
Magriel concluded: “Backgammon is a game
of enormous richness, subtlety, and depth. Chance is not a material
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
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.
“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
Amiton concluded, “Your honor, the
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 violation—no 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
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 guess—but 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.