The Jay Cohen Trial - Day Four

Like yesterday, the most compelling moments came while the jury was recessed. After the jury was dismissed for the day, defense attorney Benjamin Brafman attempted to get previously rejected evidence admitted. The exhibit was a document sent from Jay Cohen to Virginia Hair, the head of World Sports Exchange's PR firm, explaining that what WSE was doing was legal. Hair testified today that Cohen told her bets were taken over the phone and over the Internet, so Brafman wanted to introduce the letter to back up the defense's argument that Cohen clearly believed he was not breaking the law. Judge Griesa would not allow the letter as evidence because it was sent 15 months earlier.

They also, at this time, continued yesterday's argument regarding the interpretation of the Wire Act. As expected, Brafman submitted to the court a letter explaining the defense's argument that Cohen did not knowingly use a wire communication facility to take a bet even though Cohen doesn't deny that the telephone calls and Internet transactions occurred between agents in New York and WSE, which is located in Antigua. IGN has obtained a copy of the letter and will make it available online tomorrow.

Judge Griesa discussed the letter briefly. Although he didn't elaborate, he conceded that he still does not agree with Brafman's assessment. "I believe his (Cohen's) whole defense is really irrelevant under the law," Judge Griesa said.

Griesa pointed out, however, that he hasn't yet decided how to handle the situation and admitted that he's never faced a predicament in which a defendant wouldn't be allowed to argue his case. After everyone scratched their heads for a moment or two, Judge Griesa ended the conversation by assuring the court that it hasn't yet been resolved.

Conversation then turned to the government's first witness to testify tomorrow, who will testify that he attended a symposium in 1997 that Cohen attended as well. The witness is going to testify that Cohen was present when one of the speakers, attorney Paul Hugel, delivered his assessment that Internet transactions can be considered wire transmissions. The government was prepared to have the witness testify that Cohen, when asked what he planned to do, answered, "Well, then I guess I'm going to jail."

Through the witness, the government is clearly trying to prove intent. Brafman argued, however, that the comment, in this case, would be taken out of context because transcripts of the speech are not being made available. In asking for "a level playing field," Brafman pointed out that many people at the symposium spoke in favor of online gambling and deemed it to be legal.

Judge Griesa called the comment an "exaggerated import of a statement," and ruled that the government's witness can testify that Cohen was at the speech, but cannot use the "going to jail" comment as testimony, as long as the defense acknowledges that Cohen was there--the first battle definitively won by the defense.

The examination of witnesses hasn't been as interesting as the conversation during recess generally because neither side disputes what transpired from a factual standpoint. The defense does not dispute that the taped phone calls were made from New York to Antigua and, in all but one instance, it does not dispute that the contracts and invoices presented as evidence were signed and agreed upon by Cohen and his associates.

Testifying today were Hair; David Moranville, a partner in WSE's ad firm; and Joseph Aglione, a private investigator. Hair, who testified pursuant to a non-prosecution agreement with the Department of Justice, testified (accompanied by printed records) that her firm, Echo Communications, represented WSE. Moranville testified (accompanied by printed records) that his firm, Ingalls Moranville, represented WSE as well. In its cross examination, the defense, which did not dispute their testimonies, had asked the witnesses if WSE tried to conceal what the company does (to which both answered no) and whether they believed what the company was doing to be legal (to which both answered yes).

Aglione, an investigator specializing in intellectual property, was hired by the law firm that represents the National Football League to investigate a possible trademark infringement. (WSE posted an NFL logo on its site, which was subsequently removed pursuant to a settlement.) The Government presented as evidence an audio recording of WSE's Steve Schillenger and Hayden (last name not given) explained to Aglione how to set up an account.

Tomorrow will be a short session, as the court will adjourn at 2:00 p.m.