Gaming the Game

by Sean Patrick Griffin

  It would have been understandable for the general public to question Battista’s defiant stance immediately following Tommy Martino’s guilty plea. After all, two of the three conspirators had reached deals with the government and Donaghy, if not Martino, would be a witness against Battista at trial. What many outsiders never knew was that Jack McMahon and Jimmy Battista firmly believed from the outset that the government had little chance of victory in court if the case was based largely on the words of Tim Donaghy. “Jimmy and I never took the position we weren’t going to try this case,” McMahon says. “Tim Donaghy would have had to testify, ‘a corrupt and polluted source,’ as the law says; a guy who was jammed up and who had to bring other people down to help himself. And, they had no corroboration from tapes. They had phone records, but they didn’t have any phone calls from Jimmy Battista. There were all kinds of theories we could have thrown out there as a defense. Some cases you evaluate and tell your client he has no shot. I never felt that way in this case, and Jimmy wanted to fight. Anytime I mentioned the possibility of going to trial, he was ready to rumble.”

  Jack McMahon’s likely defense plan was essentially twofold: cut the legs out from under the government’s case by attacking the character and credibility of its lead witness, Tim Donaghy; and cause prosecutors considerable grief by changing the venue of the case, most likely to Philadelphia from Brooklyn, where everyone from the federal government working on the case was based.

  The assault on Donaghy’s character and credibility was likely to go all the way back to high school, when Donaghy admitted getting into Villanova University in part by having someone take his SAT exam for him. Donaghy’s SAT scam was a hot topic among the Delco crowd from that era, and Tommy Martino had discussed his knowledge of the situation with the FBI, including the name of the person Donaghy supposedly paid to take the test in Donaghy’s stead after performing poorly on the exam himself. Martino added that it was his understanding that Donaghy also cheated on tests while at Villanova. Though Martino’s comments were never made public, a former Cardinal O’Hara teacher was quoted in the news after the scandal broke in 2007 saying things of a similar nature. “I taught him for a year,” the anonymous teacher said, “and I think every homework assignment he turned in to me was copied,” before adding that he heard Donaghy years later boasting to pals that he cheated his way through Villanova. One of Donaghy’s high school classmates was quoted in the same story as saying, “Timmy had a bad temper. He was the troublemaker of the Donaghys. Timmy had a fuse, and that fuse was short.” Such accounts of Donaghy’s alleged misdeeds were sure to be part of McMahon’s presentation before the jury, and they were numerous, compelling, and spanned his adult life. Even a sampling of these, perhaps chronologically spelled out, would provide a damning critique for jurors to process as they weighed Donaghy’s testimony.

  One incident for which details emerged in news accounts involved Donaghy allegedly threatening a mail carrier in 2002 after the mailman had accidentally knocked over Donaghy’s recycling bin. According to coverage of the incident in the New York Daily News , “ Mail carrier Charles Brogan, 48, said he was making a delivery at Donaghy’s home when his car knocked over a container containing bottles and cans . . . ’He just freaked out,’ Brogan said. ‘He came out screaming and hollering.’ ” Brogan said he drove down the street thinking, “No way I’m going back there,” and simply attempted to continue with his route. Brogan said that Donaghy then got into his car and sped after Brogan’s postal truck, cutting Brogan off and almost ramming into his truck. “He wouldn’t let me deliver the mail. At one point he got out of his car and started threatening me face-to-face,” Brogan said. “He was yelling, ‘I’ll have your job. I know so and so.” Donaghy allegedly attempted to intimidate Brogan by saying he played golf with famous players like Charles Barkley. “He tried to belittle me like I’m just a public servant and he’s the big NBA ref. I guess he wanted me to fight him,” Brogan said, “but I would have lost my job.” Donaghy was arrested and charged with disorderly conduct, harassment and stalking.”4

  Chronologically speaking, the next news item for McMahon’s consideration was the widely-publicized Donaghy imbroglio with his next-door neighbors, Pete and Lisa Mansueto. The matter generated media attention in January 2005, dead smack in the middle of Donaghy’s four-year run of betting on his own NBA games, and two years before the FBI stumbled upon the ref ’s scheme with Jimmy Battista. As the Associated Press summarized the situation, the Mansuetos “sued Donaghy for harassment and invasion of privacy, and accused him of vandalizing their property and stalking Lisa Mansueto. In their lawsuit, the Mansuetos also alleged that Donaghy set fire to a tractor they owned and crashed their golf cart from Radley Run Country Club into a ravine.” According to the Philadelphia Inquirer ’s coverage of the suit, “In the summer of 2003. . . Donaghy initiated ‘a pattern of public harassment’ that included yelling obscenities at the Mansuetos.” The paper added, “The suit also states that Donaghy was charged by West Goshen Township Police with disorderly conduct and harassment in June 2000” and that “similar charges were lodged against Donaghy in 1995.” The suit noted that Radley Run conducted an internal investigation of the Mansueto-Donaghy matter, resulting in Donaghy’s suspension from the club for the summer and early fall of 2004. Lisa Mansueto said of the situation, “We were terrorized by him,” and her husband Pete added, “We were under attack . . . He set my house on fire,” in reference to Donaghy allegedly igniting a fire on their deck. The Mansueto lawsuit also alleged that Donaghy demanded police arrest the Mansueto’s five-year-old son for throwing mud balls onto Donaghy’s property.5

  The Mansueto matter could have been reasoned away as a simple neighbor dispute, with no clear wrongdoer, if not for others who stepped forward to offer their insights on the matter. Another Donaghy neighbor, Kit Anstey, a West Chester real estate agent who had played golf with Donaghy at Radley Run, said of the former ref, “He was so bad, you can’t imagine . . . The guy had a personality problem from Day One, with ninety-nine percent of the people” with whom Donaghy came in contact. Anstey added, “Unless everything went exactly his way . . . he just became a flaming maniac.” Incredibly, even West Chester’s mayor was personally aware of Donaghy’s behavior. As the Philadelphia Daily News reported, Mayor Richard Yoder “said Donaghy used to pester him with calls and visits to his office, demanding that he intervene in petty disputes with his neighbors. ‘He just had a very dictatorial personality, a very aggressive personality.’ ” The paper added that “Donaghy tied up West Chester police with at least eight calls between May and December 2004 . . . In most of those instances, Donaghy was the complainant.”

  By 2005, Donaghy’s various extra-business antics so troubled the NBA that the league prohibited Donaghy from working the second round of that year’s playoffs. According to Commissioner David Stern, they sanctioned Donaghy “as a consequence of making us unhappy with his [off-the-court] behavior,” including Donaghy’s ongoing dispute with his neighbors. Stern added that “the sheer volume” of reports involving what a reporter termed “anger management situations” made the NBA “call [Donaghy] in and say if it happened again, anything like it, he was going to be terminated, and to show that we meant it he was being pulled off a round of playoffs.”

  Compounding these considerable issues, there were more recent problems with Donaghy’s character and credibility to be exploited by McMahon. For starters, Donaghy had just admitted lying to his employer for years, allegedly cheated on his wife (during the betting scandal, no less), and had ratted on his good friend Tommy Martino at the first mention of a criminal investigation into Donaghy’s activities. Then there were the serious differences between Donaghy’s version of events and those offered by two other cooperating witnesses, Tommy Martino and Pete Ruggieri. Martino’s and Ruggieri’s stories mirrored each other, and seriously undercut some of Donaghy’s main arguments, most especially his claim that he wasn’t influencing the outcomes of games. Donaghy had also
seriously understated his profits from the scheme, according to Martino. Of course, beyond Martino’s statements regarding the logistics of the scandal, there were also Martino’s details of drug use and prostitution solicitation with Donaghy when the two men met during the scandal.

  Most recently, as McMahon was prepping for trial, Donaghy’s wife was in the news alleging behaviors that fit the pattern McMahon was sure to hammer at trial. Kim Donaghy, who had filed for divorce in September 2007, requested a restraining order against Donaghy in March 2008. In court filings, she claimed that after a March 14th incident, Donaghy threatened to “knock my . . . head off my body.” She added that Donaghy “was enraged, out of control, cursing at me in front of our four children and making threats,” and that he broke into her E-mail account.6 Incredibly, this list of matters that were sure to be picked apart on a witness stand was only of those that had already entered the public arena . The government’s prosecutors knew there was more to come, and must have assumed there was another area in particular that was going to be vetted in court.

  As Jack McMahon and the U.S. Attorney’s Office were prepping for trial, Jimmy Battista was using some of his unwanted free time to analyze what he considered a key part of the discovery evidence, namely Tim Donaghy’s phone records. “It was late March,” Battista says, “and Jack was on a murder trial in Florida. I was at home in Pennsylvania getting ready to go to war. I put together a spreadsheet of Elvis’ calls to other referees and to other bookmakers. I then made another chart of his phone calls taking into account his referee schedule, looking at how many were gambling-related and how many weren’t. Looking at those specific days of phone calls was like, ‘This is a bookmaker, this is a referee, this is a bookmaker, this is Tommy, this is Jack Concannon, this is a bookmaker, this is a referee, this is a friend Elvis bets with’—all these people he was dealing with on a continual basis. It painted a picture that this fucking guy was steaming—betting his balls off with a bunch of people.7 Jack and I agreed that we would wait everything out when we were being offered different deals, then go to trial, put Elvis on the stand, and put the other referees and a few of his close friends on the stand. They were gonna have to come out, and the phone records weren’t going to lie if we were going to be able to question Elvis. Jack was going to fucking destroy him.”

  Despite the defense team’s preoccupation with attacking the character and credibility of Tim Donaghy, McMahon says there was no real effort put into digging up dirt on the prospective lead witness. “I never thought of hiring a private investigator to get anything on Donaghy as we were preparing for trial. There was no need to. I had so many things already, especially from Tommy. Pretty much all the way through, Tommy was telling me everything about him and Timmy. Tommy was a good source because he and Timmy were good friends. My God, we had so much information against Donaghy. A ‘P.I.’ could never have gotten the stuff Tommy had! When this got to trial, I had so much information on Donaghy, it was going to be a massacre. Bear in mind, I am not even referring to the things the public has seen about arguments with his neighbors and stuff like that.” These legal and ethical matters were in addition to the litany of mean-spirited pranks for which Donaghy was reviled in certain quarters, and offered a defense attorney with a wealth of ammunition to use in court against a key witness.

  Jack McMahon, for instance, may have pointed out that in many cases, including those involving far more serious crimes than gambling, it is common to find scores of people who know a defendant who express shock and dismay at the defendant’s alleged actions because they are counter to their personal experiences. And yet, such persons were hard to find when it came to the allegations against Tim Donaghy. It was easy to envision McMahon asking a jury, “Where are the neighbors, and classmates, and colleagues who are stepping forward to say, ‘This doesn’t sound like the Tim Donaghy I knew’?”8 The pattern of Donaghy’s behavior from high school straight through his NBA career could fairly have been characterized to a jury by McMahon as that of a spoiled brat who threw temper tantrums when he didn’t get his way. Oftentimes, it could have been argued, this meant Donaghy threatening those with whom he disagreed, and blaming others for his own actions. In sum, the decades-long collection of consequential Donaghy personality flaws would greatly assist McMahon in discrediting Donaghy as a witness.

  Tim Donaghy’s character and credibility were certain to be a liability for the government’s case, and authorities knew as much when they debated moving to trial against Battista. The U.S. Attorney’s Office, as was its protocol, had already conducted its own assessment of how Donaghy would fair on the stand, and was well aware the case rested largely on someone with plenty of baggage. Prosecutors also knew that Jack McMahon was a skilled cross-examiner and a feisty trial lawyer, who could make considerable hay with a cooperating witness like Tim Donaghy on the stand.9 There was also the more basic issue of taking a case based primarily on a cooperating witness to trial. As one experienced prosecutor says in this regard, “Who knows what you’re gonna get with a cooperating witness at trial? Any cooperating witness case is a tough one at trial because there’s always a chance the jury is going to reject the credibility of the cooperator or just not be happy that there’s a rat on the stand.”

  In addition to these assessments, the U.S. Attorney’s Office was also addressing the issue of venue, which McMahon had raised long before. “The first time I was driving back from the courtroom in Brooklyn in August [2007],” McMahon says, “I said to myself, ‘Why were we just in Brooklyn? Why is the venue Brooklyn?’ I called the Assistant U.S. Attorney soon after that and asked him, and his answer was unconvincing. There was a reason for that—there was no venue in Brooklyn! Their main argument as to why the venue was the Eastern District of New York was that this guy from the NBA would go back and look at game tapes every night, and he lived somewhere in the Eastern District so that somehow gave Brooklyn venue. When I heard that, I laughed and thought, ‘You’ve got to be kidding.’ ”10 In the “motion to dismiss due to proper venue” filing with the court, McMahon noted among other things that the government admitted that none of the scheme’s bets, meetings, or officiated games took place in the Eastern District of New York.11

  “We had filed a change-of-venue motion with the Court,” McMahon says, “and there was a scheduled hearing about the issue. About two days before the hearing, the government approached us about a plea deal that would be just for illegal gambling, meaning they would drop the wire fraud. That was the first time they offered that to us. Until then, there was no chance we were going to accept a plea. We were going to have our day in court and go to trial.”

  “Jack told [Assistant U.S. Attorney] Jeff Goldberg right after I was indicted that if I could plead guilty to illegal gambling that I’d be up there the next day,” Battista says. “I wasn’t denying I was a gambler, I was just denying I defrauded the NBA. Well, about a week after Tommy accepted his deal, we were scheduled to go up and fight for venue. Goldberg called Jack up just before the venue hearing and said he’d drop the wire fraud. I’d just have to say that I was a gambler and that I masterminded the scheme.”

  “Originally,” Jack McMahon says, “when we were offered the deal for just illegal gambling, Jimmy still said, ‘No. We’re going to trial.’ He really wanted to put Donaghy on the stand and expose all of his lies. It wasn’t until I explained to Jimmy that it was in his best interest to plead guilty that he reconsidered his opinion of how to move forward. I told him, ‘You’ve got kids, man. If this was just you and you wanted to rock and roll and go at this guy, I am ready for it, but you’ve got a wife and kids and this decision isn’t just for yourself.’ Th at’s what eventually convinced him to take the plea. Besides, everyone knew he was an illegal gambler, so we weren’t going to win on that charge. We’d probably beat Donaghy up and win on the wire fraud, but the government was giving us that, so why go to trial?”

  The hard-charging Battista’s thought process in deciding whether to take the deal was in
deed preoccupied with Tim Donaghy, but he acquiesced to McMahon’s sober counsel. “I think the government knew they would have had a hard time if they tried the case against me because Elvis lied so much,” Battista says. “Any jury would have ripped him, and would have been like, ‘This doesn’t make any sense.’ But, the fact of the matter is that I did gamble illegally. I was a gambler, I claimed it for a living, and I didn’t deny it. I accepted that responsibility. As long as they dropped the fraud and wire fraud, the most serious offenses, I considered it a win. I never asked Elvis to fix a game. Now, in my mind did I think something was going on? Absolutely . He was a greedy motherfucker, and he needed to know the number we got before he went out there each game.”

  “Once we decided to accept the plea deal,” McMahon says, “we used the court date that we had for addressing the venue issue to schedule a plea. So, obviously, we had to waive venue to accept the plea.” Following some more legal haggling, on April 24, 2008, Battista formally pleaded guilty to conspiring to transmit wagering information across state lines, and faced ten to sixteen months in prison as a result.