One would be better off flipping a coin than playing poker, at least according to a Pennsylvania jury, which convicted a man based on its determination that poker is predominantly a game of chance.

Lawrence R. Burns, 65, was charged with illegal gambling for organizing and operating for-profit Texas Hold’em poker tournaments in Westmoreland County, Pennsylvania.  Mr. Burns admitted that he ran the tournaments.  His defense was that Texas Hold’em is a game of skill, and therefore not illegal gambling under Pennsylvania law, which in relevant part defines gambling as an activity in which the outcome is determined by chance.

As his lawyer, David Millstein, argued during trial, “Any game is predominated by skill if by the application of learned techniques you can win significantly more than you can lose. . . Poker is like golf in that there are repeated winners because the highly skilled are victorious more often.”

To support his defense, Mr. Burns relied on the testimony of two experts.  University of Denver professor Dr. Robert Hannum testified that he ran one billion computer simulations of poker hands between skilled and unskilled opponents.  968 million of the simulations, or approximately 97 percent, were won by the skilled players.  Professor Hannum elaborated that “skilled players…observe betting patterns to gain an advantage on how others check [hands], bet, call, raise or fold,” and that players also can learn “idiosyncrasies of opposing players — such as rubbing their face — if they have a good or bad hand, or maybe a vein in their neck appears if they are bluffing,” all of which may help a player to win.

Dr. Hannum previously testified in a similar case in Colorado that resulted in an acquittal.  Colorado sought and obtained a ruling that the trial court’s use of his trial testimony was improper.  That finding is being appealed.

The other expert, Susquehanna University professor Matthew Rousu, testified about various poker strategies and also concluded that poker is a game of skill.

Yet, after two hours of deliberations, the 12-person jury returned a verdict of guilty.  District Attorney John Peck has announced that the County will not seek jail time.  Mr. Burns has stated his intention to appeal the verdict.

The issue in Pennsylvania is far from over, however, as it appears that at least two other people, James E. Miller and James L. Hricko, are awaiting trial on similar offenses.  It is a distinct possibility that their juries will find the defendants otherwise.