Category: Defenses

Can Gambling Disorder Be Used As a Criminal Defense?

WRITTEN BY: John A. Vitagliano (’17), J.D. Elisabeth Haub School of Law at Pace University & Prof. John Meringolo, Esq.

While the defense of gambling addiction has been effectively used in criminal courts as an argument for reducing the severity of punishment, it has been unsuccessful as an insanity defense (aka mental disorder defense) in criminal trials. Recent empirical studies have shown the serious effects of gambling addiction, its similarities to drug addiction and changes in medical analysis when diagnosing a patient with this mental disorder. Advances in science and medicine may now make it possible to better understand and test for the impact of a gambling addiction on a person’s behavior, and may make it easier to establish a defense based on a gambling disorder.

Changes in the DSM
In 1994, the 4th Edition of the Diagnostic Statistical Manual (DSM) for Mental Disorders (DSM-IV) classified “Pathological Gambling” as an “Impulse Control Disorder Not Elsewhere Classified.” But in 2013, the 5th Edition of the DSM (DSM-V) renamed Pathological Gambling as “Gambling Disorder” and included it in the category of “Substance-Related and Addictive Disorders.” Recent medical developments have indicated that gambling disorder and drug or alcohol addiction have several common elements, both internal and external consequences as a result of the effects of this mental impairment. As NCRG stated,

According to Dr. Charles O’Brien, chair of the Substance-Related Disorders Work Group for DSM-5, brain imaging studies and neurochemical tests have made a ‘strong case that [gambling] activates the reward system in much the same way that a drug does.’

Although gambling disorder does not involve the physical ingestion of substances, it has been included as the only addictive disorder in the DSM-V that is a diagnosable condition. For more information, visit

To diagnose a gambling disorder, the DSM-V presents nine factors that may establish that a patient is significantly impaired as a result of his persistent gambling behavior (DSM-V) and whether this behavior severely impacts the individual’s day-to-day activities. Recognizing the commonalities with substance-related disorders, society may better understand the challenges of those living with gambling disorder face, leading to a greater chance that health insurance providers will cover medical services for treatment these patients need. See, Sarah A. Hinchliffe, Defining The “Defined” – Problem Gambling, Pathological Gambling, and Gambling Disorder: Impact on Policy and Legislation, 20 Barry L. Rev. 221 (2015).

Gambling Disorder and Sentencing
In light of the new developments, we must re-examine the existence of a gambling disorder and how it has been considered by courts during sentencing. Some courts have granted downward departures when an offender’s gambling addiction was a motivating factor for the crime committed. See, United States v. Sadolsky, 234 F.3d 938, (6th Cir. 2000) (defendant’s gambling problem qualified as significantly reduced mental capacity (SRMC) when committing computer fraud) and United States v. Checoura, 176 F. Supp. 2d 310, 315 (D. N.J. 2001) (it was not necessary to show connection between defendant’s gambling addiction and interstate transport of stolen property to grant downward departure). On the other hand, other courts require more of a causal connection between defendant’s mental condition and the criminal conduct committed to consider a downward departure. See, United States v. Ming, No. 00 CR 128-5, 2001 WL 1631874, at *7 (N.D.Ill.Dec.18, 2001) (downward departure could be warranted where inability to control behavior provides motive but insufficient connection where SRMC due to gambling was cause of defendant’s debt and motive to skim credit card numbers).

Recently, a federal judge granted a downward departure and accepted a gambling addict defense when he sentenced Andrew Caspersen. Mr. Caspersen pled guilty to wire fraud and securities fraud “for running a Ponzi-like scheme that bilked his friends and family out of $38.5 million”. At the sentencing, prosecutors recommended that Caspersen spend 15 ⅔ years in prison. After permitting an addiction expert to testify about Caspersen’s diagnosis of a severe case of gambling addiction and alcoholism, Judge Jed Rakoff “agree[d] that Caspersen’s gambling addiction ‘diminished’ his ability to make rational decisions.” Judge Rakoff granted a downward departure and sentenced Caspersen to four years in prison. Judge Rakoff recognized that Caspersen’s gambling addiction was a mental disorder that diminished his capacity when he committed the crimes he pled guilty to.

Gambling Addiction Disorder as a Criminal Insanity Defense
While the gambling addiction insanity defense has been used to reduce the severity of an offender’s punishment, it has yet to excuse the commission of a crime. For this defense to be feasible, a defendant must demonstrate he is not responsible for his actions because his gambling disorder constitutes a form of insanity.

A majority of jurisdictions in the United States use one of two legal tests for insanity: 1) the M’Naghten Test, where an individual qualifies as insane if as a result of a mental disease or disorder, he does not know that his conduct was wrongful; or 2) The American Law Institute (ALI) Test, where a “person is not responsible for criminal conduct if at the time of such conduct as a result of mental disease or defect he lacks substantial capacity … to appreciate the criminality [wrongfulness] of his conduct.” See, Kate E. Bloch & Jeffrey Gould, Legal Indeterminacy in Insanity Cases: Clarifying Wrongfulness and Applying a Triadic Approach to Forensic Evaluations, 67 Hastings L. J. (2016). If a defendant commits a crime as a result of suffering from gambling disorder and does not know the crime he committed was wrong, or he lacks the capacity to understand why his conduct was wrong, a defendant may legally qualify as being insane.

While courts have been reluctant to allow defendants to rely on an insanity defense by reason of gambling addiction disorder, they have entertained the possibility that gambling addition disorder may qualify a defendant as legally insane. In United States v. Torniero, 735 F.2d 725 (2d. Cir. 1984), the court upheld the trial court’s exclusion of a criminal insanity defense based on the defendant’s assertion that his charges of interstate transportation of allegedly stolen jewelry were a result of his compulsive gambling behavior. However, the court stated “we do not foreclose admissibility of compulsive gambling in all circumstances, nor do we speculate on the desirability of the changes in the insanity law now being considered by Congress.” Here, the court reserved decision on whether a gambling disorder constitutes a “mental disease or defect” under the ALI Test.

In United States v. Lewellyn, 723 F.2d 615, (8th Cir. 1983), the central issue raised was the link between criminal activity and pathological gambling. The Court upheld the District court’s ruling that the defendant could not rely on a gambling addiction insanity defense for charges relating to embezzlement, but did not decide whether a limitation should be placed on the availability of this defense. The court noted that pathological gambling disorder (under the DSM-III) has only been recently recognized as a mental disorder and that there is a lack of clinical studies available and limited knowledge about this condition.

The courts have left open the opportunity for a defendant to put forward a successful gambling addiction disorder criminal insanity defense. With the reclassification of gambling disorder in the DSM-V, additional research on its effects on one’s mental capacity, and time clinicians have devoted to better understand and treat this disorder, there has been a shift in how this disease is perceived by professionals and society as a whole. Courts should reconsider the effects of this disorder on one’s mental state when crimes are committed. And perhaps, a person suffering from gambling addiction disorder may be found legally insane and not responsible for the crimes committed as a result of this disease.

SCOTUS: Vacated Conviction in Mixed Verdict Case Does not Bar Retrial

Today, the Supreme Court decided Bravo-Fernandez v. United States, affirming the First Circuit’s affirmance of the defendants’ convictions. The question presented was whether an appellate reversal of a conviction in a mixed verdict case, i.e., where the jury had acquitted on some counts and convicted on others, barred a retrial where the same facts that were necessary to the acquittal were necessary to the conviction, under Ashe v. Swenson’s collateral estoppel rules. The Court held that retrial is not barred by an appellate reversal on unrelated grounds where the trial verdicts are simply inconsistent.

Interestingly, the Court left open the possibility that an appellate reversal of inconsistent convictions might bar retrial where the reversal is on a related ground that permits the court to explain the inconsistency in a way that would give the acquittals preclusive effect.

Justice Thomas filed a separate decision, suggesting that the Court should reconsider Ashe v. Swenson and its progeny, Yeager v. United States, but concurring on the ground that the Court had not extended either decision.

Related Readings:

New NYCA Decision on Attorney Disqualification

The New York Court of Appeals has unanimously reversed an appellate division decision and upheld the decision of a trial judge to relieve a defendant’s assigned counsel despite the defendant’s objections to having new counsel. The case arose when the defendant’s assigned counsel from New York County Defender Services (NYCDS) learned that another lawyer in his office was representing a man who had fled from the scene when his client was arrested for possession of a weapon found nearby. The attorney discovered the potential conflict when he sought to track down the other man to call him as a witness in the hope of casting doubt on who had possessed the gun. The attorney’s  supervisors at the NYCDS had prohibited him from looking for, calling the other man as a witness, or  cross-examining him if the prosecution called him to testify. The trial judge removed the attorney despite the client’s desire to keep him as counsel. The defendant was represented by someone else and convicted. He was sentenced to 20 years to life as a persistent violent felony offender.

The appellate division held that removal had been an abuse of discretion, but the appellate division was reversed. The Court of Appeals held that removal is appropriate where institutional defense organizations represent more than one defendant in the same criminal matter, particularly here, where the lawyer’s supervisors prohibited him from calling a prior client as a witness. It also held that the client had not effectively waived the conflict because, while he insisted on his right to retain his attorney of choice, he also continued to insist on calling the other defendant as a witness.

Related Readings:

NYCA Upholds Use of Prior Bad Act Evidence to Rebut EED Claim

POST WRITTEN BYProf. Peter Widulski, Assistant Director of the First Year Legal Skills Program and the Coach of International Criminal Moot Court Team at Pace Law School.

Pursuant to N.Y. Penal Law § 125.25 (1)(a), a defendant charged with intentional murder may present an affirmative defense that at the time of the killing he suffered from an “extreme emotional disturbance” (EED) for which there is “a reasonable explanation or excuse.” If a preponderance of evidence supports this defense, defendant will be convicted of manslaughter, rather than murder.

The NY Court of Appeals has reviewed a dozen or so cases on the potential merits of an EED claim. Most of these presented the issue of whether the trial judge erred by declining defendant’s request to charge the jury on an EED defense. In a November 18, 2015, decision the Court of Appeals reviewed the case of People v. Israel, 2015 N.Y. Slip Op. 08370, in which the trial court did charge the jury on defendant’s EED claim, but the jury rejected it.

The key facts in Israel were that in June 2007 the defendant, upon seeing a friend chased and threatened by several men, fired a gun multiple times at the pursuers, killing one of them. With respect to the killing, the prosecution introduced alternative counts of intentional murder and depraved indifference murder. Note, however, that Penal Law permits an EED defense for an intentional murder charge but not for depraved indifference murder.

At trial in support of his EED claim, the defendant called a psychiatrist, who opined that defendant suffered (untreated) post-traumatic stress disorder (PTSD) as a result of an altercation defendant had with two men in October 2005, during which defendant was stabbed eight times in the back. The expert testified that defendant reacted violently in June 2007 because his PTSD was triggered when he saw his friend being chased and attacked. The expert further testified that defendant was “not a violent person by nature” and had no “significant history of having done violent acts.”

To contest the claim that defendant’s action in June 2007 was attributable solely to the PTSD, the prosecution cross-examined the psychiatrist about two incidents prior to the stabbing and about one that occurred in 2010, in all of which defendant reacted violently with little or no provocation. Regarding the 2010 incident, the prosecution subsequently called to the stand a corrections officer, who testified that while defendant was incarcerated in August 2010, he smashed an inmate telephone in anger and threatened the officer.

In People v. Israel, the jury rejected defendant’s EED argument and convicted him of intentional murder for killing one of his friend’s pursuers and of attempted murder for firing at police officers who came to the scene.

The issue on appeal at the Appellate Division, First Department was whether the trial judge erred by allowing the prosecutor to cross-examine witnesses about the defendant’s other bad acts and to present testimony about the 2010 prison incident. As I wrote earlier, to be admissible such evidence must relate to a material issue and must not be used to show defendant’s propensity to commit wrongful acts.

The Court of Appeals unanimously held that by making an EED claim, defendant raised a material issue about his state of mind at the time of the killing and thus “opened the door” to rebuttal about whether PTSD was the sole reason for his actions at that time. Noting that objection to evidence of one of the two prior bad acts had effectively been waived at trial, the Court found that the prosecutor’s questions about defendant’s other bad act prior to his stabbing were for consideration, as the trial judge made clear in limiting instruction to the jury, only to the issue raised by defendant about his state of mind at the time of the killing and not for evidence of propensity.

The Court did agree with defendant that the trial court erred in admitting evidence of the 2010 prison incident (three years after the crime charged) because the focus of an EED defense must be on whether defendant was suffering from an EED at the time of the crime charged. This evidence should have been excluded as pointing only to propensity, but the Court held this error harmless because other admissible evidence showed “overwhelming” proof and affirmed defendant’s conviction.

Related Readings:

John Oliver on the Public Defender System

public defenders JOJohn Oliver did it again! With more than 2.8 million views, John Oliver in his weekly “Last Week Tonight” analyzes the public defender system in the United States as only he can do it.  He begins by quoting the 1963 decision of Gideon v. Wainwright, in which the Court stated that “… any person … who is too poor to hire a lawyer, cannot be assured a fair trial unless counsel is provided for him.” Does this system works as intended?

He shares quite a few shocking facts and statistics:

  • “… anywhere from 60-90 percent of criminal defendants need publicly-funded attorneys, depending on the jurisdiction.” (Brennan Center for Justice, Apr. 9, 2013). 
  • “… 40% of all county-based public defender offices had no investigators on staff.” (Bureau of Justice Statistics).
  • “… about 95 percent of criminal cases never make it to trial.”

He explains that

[t]he Miranda warning includes the right to a public defender. It doesn’t include the fact that public defenders are highly overworked and grossly underpaid.

Related Readings:

  • Gideon v. Wainwright, 372 U.S. 335 (1963). 
  • William Lawrence, The Public Defender Crisis in America: Gideon, the War on Drugs and the Fight for Equality, 5 U. Miami Race & Soc. Just. L. Rev. 167 (2015).
  • Indigent Defense Systems (Bureau of Justice Statistics) offers statistical data on the right to counsel and methods for providing indigent criminal defense.
  • John Oliver, Public DefendersLast Week Tonight (Sept. 13, 2015).