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July 25, 2008

Bad NBA ref may have pulled a tough judge

As detailed in this New York Times article, headlined "Two Punishments Suggest Stiff Penalty for Donaghy," early sentencings in the NBA betting case suggest that the crooked ref is not going to get a pass:

Two co-defendants of the disgraced N.B.A. referee Tim Donaghy were sentenced Thursday, and legal experts said their sentences indicated that Donaghy was likely to face a stiff punishment when he appears in court Tuesday.

In federal court in Brooklyn, United States District Judge Carol Amon sentenced one of Donaghy’s co-defendants, Thomas Martino, to 12 months and a day in prison. Federal sentencing guidelines suggested that he should have received 8 to 14 months. The other co-defendant, James Battista, was sentenced to 15 months. The guidelines suggested he should have received 10 to 16 months.

The guidelines in Donaghy’s case suggest a prison sentence of roughly 27 to 33 months.

When Donaghy pleaded guilty last August, he admitted to providing inside information to his co-defendants and to placing bets on games he officiated. On Thursday, Amon highlighted how the crimes had compromised basketball games. “No single person is more important to the game than the referee,” she said. “If his interest is compromised in any way, the entire sport is compromised.”....

Donaghy’s situation is slightly different from his co-defendants’. Donaghy was the only defendant who cooperated with the federal authorities, although the government has played down his cooperation.

At a hearing July 9, federal prosecutors said that many of the allegations made by Donaghy proved to be unsubstantiated. Amon said at the time that the information Donaghy had provided had not necessarily turned out to be strong enough to help the government.

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Tracked on Sep 14, 2009 12:32:01 PM


The year and a day sentence is necessary for gain time - so not as severe as it might seem.

Posted by: Clerk | Jul 25, 2008 10:23:29 AM

Didn't the government file a 5K motion?

Posted by: Steve | Jul 25, 2008 10:44:43 AM

The problem was, Steve, he didn't have anybody to rat on except the two men the government already had. It's the first rule of 5K agreements - big fish get off, little fish get eaten.

Posted by: Gritsforbreakfast | Jul 25, 2008 11:42:33 AM

Would it be better for the government not to seek cooperation so that all fish get eaten equally?

Posted by: Bill Otis | Jul 25, 2008 11:54:54 AM

In such a highly publicized crime involving professional sports, gambling and fixing, it will be no surprise to see the judge in this matter put Donaghy behind bars for a long period of time. The prosecution and even the judge will most likely be looking to send a serious message to any other gamblers as to what their punishment can/will be if they attempt to alter the outcome of any games/matches. It will be interesting to see if any of the other referees implicated are interviewed and investigated by the FBI.

Posted by: JT | Jul 25, 2008 12:07:19 PM

Correct me if I am wrong. Getting a 5K letter does not always hinge on giving people up? Is that correct.

In the corporate world you go in give your self up tell everything then bring the same approach to the USAO cooperate and talk to them even though you not giving people up your still making their investigation easier.

Does this count for cooperation?

Posted by: | Jul 25, 2008 12:22:37 PM

Gritsforbreakfast, I think he tried to rat on other NBA officials and claimed he had information on other fixed games. The NYT article doesn't indicate whether the government has rejected all of that information.

Posted by: Steve | Jul 25, 2008 12:25:18 PM

12:22:37 PM, that kind of cooperation is probably not going to get you a reduction under 5K1.1. It really counts more toward acceptance of responsibility credit.

Posted by: Steve | Jul 25, 2008 12:27:47 PM

Steve, though I've not followed this case recently, I'm pretty sure the stuff he gave them on other officials did not rise to the level of game fixing - stuff the NBA might care about but not the US Attorney.

Bill, if you think letting snitches get the only leniency allowed under the sentencing guidelines makes sense, then so do your comments. Just because that's how things are, however, doesn't mean it's how they have to be. There are more things in heaven and earth, Horatio, than are dreamt of in your philosophy.

Posted by: Gritsforbreakfast | Jul 25, 2008 6:02:13 PM


Does that mean that you do, or do not, want defendants to get a break at sentencing for cooperation?

Posted by: Bill Otis | Jul 25, 2008 11:31:48 PM

Actually, Mr. Otis, I think snitches should get 100% immunity or none at all. It should be given, in writing, before any testimony. This way, the jury can be told what the snitch will get away with, rather than making people guess what kind of sentence he will get.

Posted by: S.cute.us | Jul 26, 2008 12:26:48 AM


You don't take it far enough. Why don't we just ban, at the drug conspiracy trial of Defendant X, the testimony of anyone who had anything to do with the drug conspiracy?

This would create the twin "virtues" of (1) relieving the lawyers of having to go through those sleazy tales from the drug world, and (2) relieving the jurors of having to listen to any facts about the offense.

Yup, you've hit upon it! The best kind of trial is one with NO EVIDENCE!!! This is likely to result in a 100% acquittal rate, putting back on the street the downtrodden, marginalized and (of course) poor (when not buying ocean-front lots in the Cayman Islands) druggie to SELL YET MORE METH to somebody else's kid!

Why did you wait so long to tell us how the justice system should REALLY operate??

Posted by: Bill Otis | Jul 26, 2008 7:24:40 AM

Bill, it means the way you frame the question is reductionist and foolish, hardly worthy of comment.

Posted by: Gritsforbreakfast | Jul 26, 2008 7:40:26 AM

Well, considering that you argue that there should be no trials when you (or your ex-employer) says there is a “War.”

However, as Grits says, your argument is reductionist and silly. But this is the way you think. No problem. There is a real problem with the use of snitches. (In fact, there is a good policy reason to “stop snitching.”) Since you don’t even seem to understand the debate, I guess I need to explain why some people think snitches are a bad idea.

1. They tend to lie. After all, they might say anying to spend less time in jail. Of course, since most of them are poor, jail time is inevitable.
2. When police use them they are relieved of the need to actually do policework. After all, why bother investigating anything when you have some snitch come in and tell you everything. Indeed, if his tips don’t pan out, there is an incentive to plant of manufacturer evidence.
3. Any kind of sentencing reduction does not actually deter crime. Nor does it encourage rehabilitation or protect the public. Instead, it just alters the way a trial is conducted.

But, if people like you are going to insist upon the use of snitches, we need to be a bit more honest about them. First of all, the jury needs to know exactly what benefit they have gotten and will get. By delaying sentencing until after a snitch testifies the jury is deprived of a way to gage whether the government’s witness is a liar. A “range” of possible sentences is not really that accurate. They need to know how much freedom this guy is getting in exchange for snitching. The cops know. The judge has some idea. Somehow, you don’t think the jury should know. But, then again, you think that if you say that there is a “war” anyone and anyone can be detained and treated anyway forever without so much as a jury deciding any facts. So, I don’t think you really have much use for a trial, anyway, since once you decide that one class of people shouldn’t get one, then you pretty much have decided that nobody gets one.

To you, juries are a toy. They are not a check upon the government’s power, but something to be manipulated.

Testimony of co-conspirators is indeed, useful. But the jury needs to know exactly what benefits they will get in return for their snitching.

Posted by: S.cotus | Jul 26, 2008 8:40:49 AM


Does that mean that you do, or do not, want defendants to get a break at sentencing for cooperation?

It's the oldest dodge in the book to criticize the question rather than answer it. Of course you can get away with that on a blog. When your compatriots tried it in court, where mere snideness doesn't work out that well, the results were different.

Posted by: Bill Otis | Jul 26, 2008 12:00:01 PM


"...as Grits says, your argument is reductionist and silly."

Seemed to work pretty well in federal court for a couple of decades or so. You can go look up the cases.

And the cases demonstrating your argument skills are......? Oh, I forgot, you refuse to name any case in which you claim to have participated. But you're still an expert on successful argument, at least according to you.

"There is a real problem with the use of snitches. (In fact, there is a good policy reason to 'stop snitching.)'"

I concede that there is a reason to stop "snitching." The reason is that you can get murdered by the ever-so-innocent defendant or his gang. Nothing like having the government's chief witness found in a dumpster the day before trial with an icepick through his throat! Wouldn't want any more "snitches"!!!

Think it doesn't happen? Actually you know full well it happens, but for those who don't, I suggest Googling "K Street Gang." And that's just one of many, many examples.

Got a problem with witness murder, Mr. S.cotus? If so, I've never heard you say so. What do you propose be done about it? How 'bout just taking a pass because the hitman is inevitably "poor," at least when he's not using the proceeds of his "work" to buy first class airfare to Vegas for a fun-filled weekend.

"Since you don’t even seem to understand the debate, I guess I need to explain why some people think snitches are a bad idea."

Let me guess. Um....because "snitches" know what went on in the conspiracy and can put Mr. Big in the slammer, complicating his lawyer's chances of getting paid.

"1. They tend to lie. After all, they might say anying to spend less time in jail. Of course, since most of them are poor, jail time is inevitable."

My father and just about everyone he grew up with was poor when they were young, and amazingly they didn't do drugs, didn't sell drugs, didn't knock over the 7-11 or do any of the other things you view as amusing -- and of course they never went to jail, or anywhere near jail. This does not and will not dissuade you from your non-stop yammering about the "poor."

On the off chance you might have an interest in hearing some facts about REAL poverty and how it gets overcome, read Clarence Thomas's "My Grandfather's Son." Hint: crime and excuse-making aren't in the mix.

As for "snitches" tending to lie, (a) they are told upfront and quite directly that they must tell the truth, and that with any deviation from that the deal is off; and (b) if you want to see lying, watch the DEFENDANT testify.

As you would know if you actually are a lawyer, the reason the defendant typically is strongly discouraged from taking the stand is that his counsel knows full well that he's going to be lying through his teeth, and worse (from a cynical point of view) the cross examination is going to expose this fact, essentially icing the case for conviction.

"2. When police use them they are relieved of the need to actually do policework. After all, why bother investigating anything when you have some snitch come in and tell you everything."

Um, S.cotus, finding witnesses is PART of police work, not an evasion of police work. And it's a hard part, given the witness intimidation and murder that goes on all the time while you look at the ceiling and whistle.

"3. Any kind of sentencing reduction does not actually deter crime. Nor does it encourage rehabilitation or protect the public. Instead, it just alters the way a trial is conducted."

Then I take it you are against sentencing reduction, since it does nothing worthwhile. How surprising. You DO learn something new on this blog every day. Most defense lawyers I ran across were for sentencing reduction big time.

As for "altering the way a trial is conducted," you're right about that. A trial is indeed conducted differently when the jury hears about what the defendant did while he was running the gang than when it doesn't.

I could go on with this, but at this point federalist is already rolling his eyeballs, wondering why I can't stay away from the bottomless blue pool. And he has a point.

Posted by: Bill Otis | Jul 26, 2008 1:06:46 PM

Mr. Otis, As I said, I am not even going to tell you the cases in which I was called for jury duty. Moreover, unlike you, I measure my success in the present. Not by war stories like some has-been or never-was.

I am sure that witnesses get killed. So what? That doesn't change your argument

Various prosecutors take different approaches to snitches. Some take care of them. Some don't. The defense bar usually knows which ones hang their clients out to dry or make false promises. It is unfortunate that this has to even be an issue.

The rest of your argument seems to be a series of personal insults. For example, while it is a fairly common argument that snitches are unreliable you seem to convert my argument into something about whether a lawyer “gets paid.”

Now, if you want to dispute something, tell me what the legitimate use of snitches is in police work. Should a case be built entirely on their word? Maybe you can convince me that cases should be built on the word of snitches.

If a defendant testifies the jury can decide whether he is lying or not. Some lie. Some don't. Sometimes juries believe them, sometimes they don't. Whatever the case, it is pretty easy to discredit them, even when they are telling the truth, because even the best defendant comes from a pretty bad background that smells criminal.

I will concede that I don't know much about “real” poverty. I imagine is must be terrible having to live in your summer home or something. I do not read non-legal works by any Supreme Court justice. They are waste. If I want to read good literature for entertainment, I read actual literature. Not ego-trips about being poor or owning a ranch or some crap.

Despite the fact that you seem to deliberately ignore the actual arguments, Federalist has admitted that he isn't a lawyer, and therefore what he thinks doesn't matter. There is no way that he could have a point.

Posted by: S.cute.us | Jul 26, 2008 4:01:37 PM

Bill, cops often lie too - as do non-snitch witnesses. As S COTUS pointed out - its up to the factfinder to decide who to believe. However, the risk of dishonest testimony effecting cases is highest when you have what is essentially a practiced "professional" witness - generally the people who fit that description are snitches and police officers (most lay witnesses do not testify in court enough to become practiced). Fact finders generally know when a nonpracticed person is lying (I had one case involving a fight where the judge said "I don't find either one of their stories creditable" about the complaining witness and my client before acquitting my client of assault).

However, snitch cases are especially problematic - which is why nobody really likes them - especially in drug cases where using what is essentially a "professional snitch" to take several low level dealers who are generally selling drugs to support a drug addiction (and looking the other way when their snitch continues to take drugs to support his drug addiction). Combine a snitch with dishonest police officers and you have a recipe for disaster whether the persons are guilty but have their convictions reversed after the dirty cops are caught or even worse innocent.

Violence against witnesses is a problem but the "stop snitching" movement is much more a reflection of distrust of the police among inner city minories than fear of violence. Yes, there is witness intimidating - but there is also a sense that the police are too busy lying and planting evidence to protect people.

Posted by: Zack | Jul 29, 2008 12:27:57 PM

I just saw on my computer screen that the sentence was 15 months. That's well below the predicted range, and the same, or about the same, as the co-defendants. Maybe somebody thought his cooperation worthwhile.

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