Commentary

Jail break? Donaghy's cooperation could make sentencing more lenient

Updated: August 6, 2009, 4:15 PM ET
By Lester Munson | ESPN.com

One did five weeks in drug rehab and is in a program called "Change or Die." Another is trying to make it through beauty school to start a new career. A third -- disgraced NBA referee Tim Donaghy -- faces unemployment, divorce and endless treatment for a gambling disorder.

That's what the participants in the biggest sports gambling scandal in decades are doing now. And, in hearings before a federal judge in Brooklyn on Thursday and Tuesday, they will learn whether they also face jail time.

All three have entered pleas of guilty to serious federal crimes; all three argue that they are somehow entitled to leniency; and, although they went to high school together, all three are quick to suggest that the other two are the real bad guys and deserve the worst punishment.

The acknowledged leader of the gambling conspiracy, James "Baba" Battista, is a professional gambler who reports annual gambling income of more than $150,000 on his tax returns and and has exaggerated his connection to organized crime to intimidate others. He also wants people to think that his stint in rehab and 17 months of sobriety are enough to qualify him for house arrest and probation.

Thomas Martino, who is 5-foot-3 and slender, shares the worries of his lawyer and his family about what might happen to him in the penitentiary. He expects to graduate shortly from Venus Beauty Academy in Sharon Hill, Pa., hopes to avoid jail, and wants to work in one of his brother's beauty salons.

After telling federal prosecutors and agents about his participation in gambling schemes that went back to 2003, Donaghy has been working on his recovery from a pathological addiction to gambling. He thinks his help in the investigation and his pursuit of treatment for a disabling disease qualify him for probation. And he might be right.

Daniel R. Alonso, a former prosecutor in the courthouse where the three will be sentenced, says he believes Donaghy's forthright honesty about the scheme and his cooperation with the government will be enough to keep him out of jail. After reviewing a government evaluation of Donaghy's "substantial assistance" in the investigation, Alonso told ESPN.com that Donaghy "stands an excellent chance of not being sent to jail."

Donaghy could easily be sentenced to a period of home confinement and probation, said Alonso, who now specializes in criminal defense as a member of Kaye Scholer, an international law firm.

Hovering in the background is the NBA, the supposed "victim" of their crimes. It might be the first time in the history of American jurisprudence that a "victim" has required the services of three remarkably expensive Wall Street law firms and demanded $1.3 million in "restitution."

The NBA's positioning of itself as a victim came late in the litigation. League officials did not make a claim for restitution until the schedule of court hearings began to coincide with the playing of the 2008 Finals between the Celtics and the Lakers. In a sudden flurry of activity as the Finals approached, one of the NBA's law firms (Stillman, Friedman & Schechtman) asserted that Donaghy was on a "campaign to defame the NBA's management" during a time when the NBA's "audience is the largest." Instead of making amends with the NBA, the lawyers argued, Donaghy wanted to inflict more harm on his victim.

NBA commissioner David Stern told ESPN.com several months ago that he expected Donaghy to do jail time. The frantic legal work and the demands for restitution show that Stern and the league are worried that their former referee, a man who has caused them immeasurable harm, might be able to avoid jail time.

Judge Carol Bagley Amon will sentence Battista and Martino at a hearing Thursday morning and will sentence Donaghy on Tuesday morning. Here is a look at the issues Judge Amon will face and what she is likely to do:

James Battista: There is little doubt that Battista was the leader of the gambling conspiracy. As the result of a network of high school acquaintances, Battista knew Donaghy had been betting on NBA games and other sports with a less successful gambler named Jack Concannon.

When Donaghy tried to quit gambling, Battista arranged to meet him on Dec. 12, 2006, and, according to Donaghy, told Donaghy that he would report Donaghy to the NBA unless Donaghy helped him with inside information.

John Lauro, Donaghy's lawyer, says Battista also threatened Donaghy's family, suggesting that Donaghy did not want "people from New York [mafia figures] visiting his wife and kids." Donaghy quickly agreed to Battista's terms and followed Battista's instructions until the scheme fell apart.

As the leader of the scheme, Battista ordinarily would face the toughest sentence. He not only was the leader but also was the last of the three to agree to plead guilty. And perhaps most importantly, he did not offer the agents and the prosecutors any assistance or cooperation in any other investigation. But the federal prosecutors in Brooklyn have inexplicably taken a soft approach on Battista. Under the complex formula that is used as a guideline in federal courts, Battista faces 10 to 16 months of incarceration. It's a situation that infuriates Donaghy and Lauro. They label the prosecutor's approach to Battista an "aberrant capitulation," and they are incredulous that Battista "will be allowed to keep his ill-gotten gains."

Other than the government's lenient attitude, Battista does not offer much in his efforts to minimize his sentence. His only suggestion to Judge Amon has been that he is entitled to some consideration for kicking a drug habit.

Even with the generosity offered by federal prosecutors, however, Battista is likely to face the stiffest sentence. It is difficult to imagine that Donaghy, after cooperating with agents extensively, would receive a harsher sentence than a professional gambler who organized the scheme, stonewalled the federal investigation and was the last to admit his guilt. Judge Amon could easily push her sentence beyond the maximum suggested in the guidelines. Look for him to do 16 months or more in a federal penitentiary.

Thomas Martino: Although Martino was merely a messenger, receiving information from Donaghy and passing it on to Battista, he made a costly mistake when he was called before the federal grand jury in Brooklyn on May 30, 2007. Instead of an honest description of the three-man scheme, he attempted a cover-up of what they were doing. If he had been truthful, he might have escaped prosecution. But when he lied under oath, he walked into serious trouble. He tried to repair the damage later, but lying to a federal grand jury is a jail offense.

Martino's only hope for avoiding jail time is what courthouse regulars call a "writ of pity." One of the investigators described Martino as "the oddest little man he had ever met." A psychologist who examined him said he "appears almost adolescent in his physical and social demeanor" even though he is 42 years old.

His attorney, Vicki Herr, of Media, Pa., has filed an impressive array of legal papers and character references describing the sad details of Martino's plight. He lost a good job at JPMorgan after his arrest, he divorced in 2006, he was humiliated by the publicity resulting from the scandal -- and it all happened while his mother was in chemotherapy.

His family and his friends agree that the diminutive Martino, described by a psychologist as "fastidious about his eyebrows and hair," might face problems in jail. His mother, Sally, told Judge Amon in a letter that "because of his stature, he is not equipped to handle prison nor is he physically able to protect himself."

But the pleas for pity might not be enough. His role in the scheme was minimal, but his lies to the grand jury should result in jail time. Look for a sentence of five or six months of incarceration.

Tim Donaghy: In what is known in federal courts as a "5K letter," Assistant U.S. Attorney Jeffrey A. Goldberg told Judge Amon on May 8 that Donaghy's "cooperation was significant both in its timing and its scope." Donaghy went to the FBI and to Goldberg as soon as he learned of the federal investigation and quickly told them everything he knew.

"The fact of the matter is that it was Donaghy who approached the government -- not the other way around," Goldberg said. His information provided "direct evidence of the details of the conspiracy -- how it began, how the scheme was carried out, and who played what role."

In addition to evidence that led to the indictments of Battista and Martino, Donaghy gave the government additional material on earlier gambling and on other schemes involving NBA officials. Federal officials acknowledge the additional information but "decline to disclose whether they are pursuing, or will be pursuing, charges" against other individuals.

As former prosecutor Alonso observed, this level of cooperation with government prosecutors routinely results in sentences of probation without a day in jail.

In addition to his cooperation with the government, Donaghy and Lauro have filed significant evidence on Donaghy's gambling disorder and what he has done about it. If Donaghy is a victim of the disease of compulsive gambling, he might qualify for a reduced sentence under a guideline provision known as "diminished capacity." It would be another compelling reason for a lenient sentence.

Compulsive gambling is recognized as a disease in the Diagnostic and Statistical Manual of Mental Disorders (the DSM), the bible of psychiatry. The DSM definition of compulsive gambling has 10 criteria, including a preoccupation with gambling, a need to bet increasing amounts of money, unsuccessful efforts to stop, attempts to chase losses, and lies to family and others about gambling.

If a gambler meets five of the DSM's criteria, he has a serious problem. Donaghy qualified on seven of the 10 criteria, according to a nationally recognized expert, Stephen M. Block, hired by Lauro and Donaghy.

Government prosecutors offered very little in response to Donaghy's claim of diminished capacity. They tried to suggest to Judge Amon that Donaghy had stopped gambling at one time and that he had done his gambling in secret. But both his attempt to stop and his attempt to keep it secret simply add to the strength of Block's conclusion that Donaghy is indeed a pathological gambler.

Alonso predicts that Donaghy will not go to jail. Donaghy is the only one of the three in the scheme who will be credited with cooperation, and there is nothing more important in a federal court sentencing than cooperation. But the notoriety of Donaghy's manipulation of NBA games might make it difficult for Judge Amon to grant total probation. There is an abuse of trust in Donaghy's behavior that might be a factor in Amon's decision. Look for a sentence of four or five months of incarceration.

Lester Munson, a Chicago lawyer and journalist who reports on investigative and legal issues in the sports industry, is a senior writer for ESPN.com.