Join Bridge Winners
You Judge - The Whole "Whole Story"?
(Page of 21)

I. INTRODUCTION AND TABLE OF CONTENTS

 

The first eight Sections, I-VIII, are presented in capsule form based on the best information available.

 

I do have views and opinions, and those are set forth in Sections IX-XV, which anyone is free to skip over. My minimal notations in other sections are intended only to shed factual light on the matter being addressed.

 

Mr. Passell’s online story, the McHenry Team’s online story (as told by Mr. Darter), and the ACBL Recorder and Passell/Compton Statements/Briefs are repeated verbatim in their entirety (including grammatical and punctuation errors) in Sections XVI-XXI. All references to “Transcript” or to “Tr.” mean the full Transcript of the EOC Hearing on the morning of August 11, 2015 at the Chicago NABC.

 

There has been some discrepancy of minor facts by both sides as well as in the EOC report (which apparently reversed the polarity of the two cards whose location had changed, noted in the write-up by “sic”). The precise bidding and play on both boards may never be known for absolute certainty, but the results and scores are undisputed.

 

This is all about each person making their own determinations. So, kindly excuse me from entering any responses for at least a couple of days. As the heading says, please judge for yourself.

 

I. Introduction

II. The Setting

III. The Hand at Mr. Passell’s Table

IV. The Fouled Board

V. The Story

VI. The ACBL Recorder

VII. The ACBL Ethical Oversight Committee

VIII. Proceedings Before The ACBL Board of Directors Appeals & Charges Committee

 

IX. My Disclaimers

X. Why Did I Do This?

XI. Facts Which I Took as Surprising, or Intriguing, or Both

XII. My Unanswered Questions

XIII. My Estimate of Odds/Percentages Validating the Incident

XIV. The Detroit Regional, circa 1982

XV. My Personal Thoughts and Observations

 

XVI. “The Whole Story”

XVII. An “Offbeat Incident”

XIII. ACBL Statement of the Case Presented Verbatim

XIX. Passell/Compton Brief Presented Verbatim

X. ACBL Rebuttal Presented Verbatim

XI. Passell/Compton Reply Presented Verbatim

II. THE SETTING

 

You enter the Bracketed Round Robin Team, Bracket I, consisting of 9 Tables on Thursday, February 19, 2015 at the Palmetto (Sarasota, FL) Regional. Metal boards in use at the tournament.

 

This is your first match of the day and you are in awe; it’s a 3-way starting against a mega world class team. Shortly, Board 5 of 6 generates a significant issue for you. The final results of the Regional Team:

 

Thurs Brk RR Teams Br 1 - 9 Tables

MPs Rank Names Score

15.40 1 Mike Passell, Plano TX; Mary Chilcote, Cleveland OH; Chris Compton, Dallas TX; Jeff Meckstroth, Clearwater Bch FL; Eric Rodwell, Clearwater FL 219.00

11.55 2 Terry McHenry - Gen Geiger, Sarasota FL; Marvin Darter - Linda Darter, North Port FL 186.00

7.58 3/4 Joy Phillips, Toronto ON; Laura Lipman, Bonita Springs FL; Michael Cafferata, Markham ON; David Colbert, Etobicoke ON 127.00

7.58 3/4 Albert Shrive, Dalton PA; Donald Dalpe, Baldwinsville NY; Scott Hiller, Naples FL; Michael Ranis, New York NY; Thomas Andrews, Utica NY; Jim McKeown, State College PA 127.00

 

You are unhappy with the events surrounding Board 5, and are under time restrictions for playing matches 2 to 8 and unfamiliar with how to seek redress.

III. THE HAND AT MR. PASSELL’S TABLE

 

This is reproduced as written on your Recorder’s Memo(s) and entered into evidence at the EOC Hearing:

 

West
A7x
xx
QJ10x
Axxx
North
K9x
Axx
xxx
Jxxx
East
J5
10xx
AK87xx
8x
South
Q108xx
KQJ9x
KQ10
W
N
E
S
P
2
4
P
4
P
P
5
5
P
P
X
P
P
P
D
5X North
NS: 0 EW: 0

 

 

N – Mr. Mike Passell

S – Ms. Mary Chilcote

E – Mr. Marvin Darter

W – Mrs. Linda Darter

 

You score a satisfying +200 after pushing your world class opponent to the 5-level. (My Note: There is conflicting evidence on the play at this table, but the resulting score is undisputed).

IV. THE FOULED BOARD

 

This is reproduced as written on your Recorder’s Memo(s) and entered into evidence at the EOC Hearing.

 

West
AJ7x
xx
QJ10
Axxx
North
K9x
Axx
xxx
Jxxx
East
5
10xx
AK87xxx
8x
South
Q108xx
KQJ9x
KQ10
W
N
E
S
P
1
2
X
2
3
P
P
P
D
3 East
NS: 0 EW: 0

 

 

N - Mr. Terry McHenry

S – Ms. Gen Geiger

E – Mr. Chris Compton

W – Mr. Eric Rodwell

 

As North, you decide to sell out to 3 Diamonds, after the double by West suggested penalizing one or both of the Majors. The result was 10 tricks and +130 for E-W. Ultimately you score 2 IMPS for your -130 and +200.

V. THE STORY

 

Because it was a 3-way match, the Darters did not return to their home table until perhaps 45 minutes after leaving Mr. Passell. The Darters have said that they made comparisons for both matches under some time constraint, and confirmed and turned in both results to the TD. Then they reviewed the hands, found the discrepancy, and Ms. Darter then went immediately to Mr. Passell. When she felt she had not received satisfaction, she went right to Chief TD Karl Miller, who told her to fill out a Recorder Memo. Ms. Darter did this in neatly hand written form during the day. The Recorder Memo, in addition to the written hand record, said:

 

“Was Director Consulted: Yes, Immediately After”

“By Whom: Linda”

“Please explain your concern in this matter: My concern is that the North player moves cards on boards to improve his team’s results. Please see attached for full explanation of incident.”

 

The attachment was typed, gave the bidding and results, and said:

 

“In post-mortem discussion with our teammates, we discovered that two cards had been interchanged between the East and West hands after the board was played at our table. The Jack of Spades was now in West’s hand (giving him AJxx in that suit) and East now had a seventh Diamond.

 

“At my table, I observed the North player fumbling with the board, after we had played it. The board was leaned up against the table by North’s leg.

 

“After we discovered the interchange of the cards, I returned to North’s table and asked him about it. He claimed that the cards ‘fell out’ of the board, and ‘I put them back the best I could’. Never did I observe any cards falling out of the board, and note also that these are metal boards and the cards are wedged tightly in their pockets.

 

“Moving the Spade Jack to the West hand and giving East a seventh Diamond renders 4 Hearts unmakeable. This has the effect of ensuring that North’s team cannot lose more than two IMPs on the board”.

 

A letter was subsequently written by McHenry teammate and partner Gen Geiger to her acquaintance, Mr. Howard Weinstein. There is no response on the record. Mr. Weinstein is the President of the USBF, and an ACBL Representative on the WBF Board of Directors. The first page of the letter to Mr. Weinstein recounted the two versions of Board 5 and the results. The second page went on to say:

 

“In the post-mortem discussion with our teammates, Marvin (Darter) said that Mike (Passell) could have made 5H Dbl but went one down, having misguessed the jack of spades. We said what???? You didn’t have the jack of spades. So we looked at the board and it was as displayed as above after the move.

 

“Linda (Darter) immediately went to Mike Passell and said that cards had been moved and he said that cards “fell out” of the board and “I put them back as best I could”. Never did Linda or Marvin (Darters) notice any cards falling out of the board. Linda (Darter) did observe that Mike (Passell) had the board leaning up on the table leg and that he had been fumbling around quite a bit with the boards…..We were using metal boards and the cards are wedged tightly in their pockets. He also said “you won 2 IMPS on the board why do you care?

 

“Moving the Jack of Spades and giving East a 7 card Diamond suit insured that 4H by N/S cannot be made and the loss on the board could be no more than a couple of IMPS.

 

“Linda (Darter) went to a director (Karl Miller) and registered her complaint against Mike Passell. He said that they would watch him in future events and that she should write up a player memo. I have copied this memo to you.

 

“My concerns:

1. Mike manipulated the board, switching the S-J with a small D. If the cards had fallen to the floor as he claimed he would have brought the board up to the table and asked the opponents to help in the replacement of the cards or summoned the Director.

2. Mike, a player with 70,000 masterpoints, surely knows the hand and which player had the key card.

3. If the cards had lain at his table as they did at ours, Mike would have been down 2 for -500.

 

“I know that Mike has a good reputation in bridge. I am very upset at this turn of events. I am not sure what will happen to the player memo but I know that you are always concerned about the honesty of players.

 

“Should I send this on to the ACBL? Are you on the National Ethics and Conduct Committee? What else can be done? I would appreciate your comments.

 

“Thank you so much for reading this…..Gen (Geiger)”

 

Both the Recorder Memo and the Letter to Mr. Weinstein were in evidence before the EOC.

VI. THE ACBL RECORDER AND MANAGEMENT

 

Sam Whitten, ACBL National Recorder

Jim Miller, ACBL Assistant Recorder

Christina Van Leeuwen, ACBL Recorder Operations & Disciplinary Coordinator

 

After phone calls to the parties seeking additional evidence, the Recorder decided to bring this matter to the attention of the ACBL Board of Directors prior to the Chicago NABC:

 

“Item 152-: Executive Committee Minutes

The minutes of the Executive Committee meetings held April 22, 2015 are received.

Carried Nay: 4, 17, 22 Abstain: 2, 7, 9

MINUTES

EXECUTIVE COMMITTEE OF THE BOARD OF DIRECTORS

April 22, 2015

The Executive Committee met Wednesday, April 22, 2015 at 2:00 p.m. CT, by conference call.

Present at the meeting were members of the Executive Committee, Suzi Subeck, President, Phyllis Harlan, Chairman of the Board, Sharon Fairchild, Ken Monzingo, Beth Reid, Rand Pinsky, Treasurer, (non-voting).

Also present, representing management, were Robert Hartman, CEO, Sam Whitten, Chris Van Leeuwen and Kelley McGuire.* * * * *

RE: Complaint against ********* # P509***Complaint against Mike Passell #J622382

After discussion, the Executive Committee decided to make charges and submit the complaint against ********* ACBL #P509*** to the ACBL Disciplinary Committee for hearing at the Summer 2015 Chicago NABC.

After discussion, the Executive Committee decided to make charges and submit the Complaint against Mike Passell ACBL #J622382 to the ACBL Ethical Oversight Committee for hearing at the Summer 2015 Chicago NABC.The meeting was adjourned at 2:35 p.m.”

VII. THE ETHICAL OVERSIGHT COMMITTEE

 

“The Ethical Oversight Committee acts upon charges brought by ACBL Management as the ACBL disciplinary body in cases of alleged cheating by the use of signals, other unauthorized information, other forms of cheating, or serious breaches of ethics, in accordance with the ACBL Code of Disciplinary Regulations. League Counsel, the ACBL President and the District Director (for the district of the person charged) are to be notified of a decision to hold an ethical oversight hearing.”

 

Jan Martel, 2015 Chairman (Jan informs me she is no longer on the EOC; The ACBL through Sam Whitten just E-mailed me that Bart Bramley is now the Chairman of the EOC)

Cheri Bjerkan 2017

Peter Boyd 2018

Bart Bramley 2018

John Brissman 2019

Dennis Clerkin 2017

Lesley Davis 2018

Bruce Ferguson 2019

John Fout 2017

Bob Glasson 2017

Robb Gordon 2019

Jill Meyers 2018

Hendrik Sharples 2019

Karen Walker 2018

Kevin Wilson 2017

Eddie Wold 2019

 

http://www.acbl.org/about-acbl/administration/ethical-oversight-committee/

 

(My Note – Jan Martel advised me by direct E-mail that she selected a Hearing Committee based on those EOC Members available at the tournament and without conflict at the scheduled time of the Hearing).

 

The Ethical Oversight Committee Hearing was convened with proper notice on August 11, 2015 at 10 AM in Chicago. Mr. Passell was present personally along with Mr. McHenry Team and Ms. Geiger; the Darters were in attendance by telephone. Under the CDR, no parties were permitted to have an attorney in the Hearing Room, but one could be available outside the Hearing Room. Each party could have a non-attorney representative in the Hearing Room. The trial portion of the Hearing, involving the testimony, ended at about 10:38 AM. Among others, the EOC found Mr. Passell guilty of “CDR 3.20” – “Cheating and similar ethical violations”. (My Note – in their final statement, report, and findings of evidence and fact below, the word “cheating” was eliminated from the CDR 3.20 charge):

 

“On August 11, 2015 the Ethical Oversight Committee convened to hear complaints brought against Mike Passell, ACBL #J622382. The Committee found Mr. Passell guilty of violating the following Code of Disciplinary Regulations: 3.1 Violation of the Laws of Duplicate Contract Bridge. 3.7 Actions or behavior unbecoming a person participating in an ACBL sanctioned tournament or event; or a person attending (at the time and site of) an ACBL sanctioned tournament or event or ACBL activity (including a unit or district activity) 3.20 Ethical Violation E13 Prearrange a deal or part thereof including one card (CDR 3.1, 3.2 and 3.7) The committee imposed the following discipline: Probation 13 months – Beginning 8/17/2015 and Ending 9/16/2016 Removal of 25% of his Total Masterpoints”

 

EVIDENCE PRESENTED (TO THE EOC):

“During the two-session Bracketed Swiss event at the Palmetto Regional, Mr. Passell testified that after playing Board 5, he threw the board on the ground and subsequently noticed that a card was lying on the ground face down. The board was a metal board. Out of view of his partner and the opponents, he placed the face down card in the slot he believed it had fallen out of. He then wondered whether he had replaced the card correctly so he counted the cards and found 14 in one slot and 12 in another. He removed what he thought was the misplaced card and placed it in the slot with only 12 cards. This was all done under the table and out-of-view of everyone else at the table. The results was that the Jack of Spades was moved from the West hand(sic) to the East hand(sic) and a small diamond was moved from the East hand(sic) to the West hand(sic) after the board was played.

 

“The resulting fouled board was then passed to his teammates’ table. The fouled board was played at Mr. Passell’s teammates’ table, where a different result was obtained. When comparing scores the opposing team realized that the board had been fouled and brought it to Mr. Passell’s attention.

 

“Mr. Passell stated that he did not look at the face-down card before putting it back into the board. He admitted that nobody saw the ejected card besides himself nor did he alert the opponents or a director that a card was on the floor. He later counted the cards while everyone was at the table but without anyone’s knowledge that he was counting the cards.”

 

(EOC) COMMITTEE’S FINDINGS OF FACT:

“The Charged Party changed the cards in Board 5 after the board was played. This action occurred out of the view of his opponents. Mr. Passell stated that he did not look at the cards he moved, but he had an obligation to look at the cards that he was moving and to inform the opponents of the ejected card before touching his opponent’s cards.

 

“The fouled board was passed to his teammates’ table and played in fouled condition. These actions occurred during a Swiss match in the Bracketed Swiss 2-session event at the 2015 Palmetto Regional.Date: 8/14/15.”

 

It appears from the date of 8/14/15 (the last Friday of the Chicago NABC), on the findings of the EOC, that the decision may have taken more time than initially expected. Or, perhaps, it took those several days to prepare the formal report. Mr. Passell was notified of the EOC Decision on Sunday, August 16 at 5:30 PM by E-mail:

 

Exhibit #6 (EOC Chair) Email (to Mike Passell)“On Aug 16, 2015, at 5:30 PM, (EOC Chair) <*****@*****.com> wrote:The ACBL person has assured me that he will send you the committee write up. I might be able to find it on my computer (as an email attachment, although I’m not sure because I only saw the final version in paper, not electronically). The committee imposed probation for 13 months and also the mandatory penalty of loss of 25% of your masterpoints (that is the minimum mandatory penalty for “prearranging” a board, and the majority of the committee thought that moving the cards, even without knowledge of what cards they were, constituted prearranging the hand.”

VIII.  PROCEEDINGS BEFORE THE ACBL BOARD OF DIRECTORS APPEALS & CHARGES COMMITTEE

 

Exhibit #2 Chris Compton Email:

“By this letter I inform the League that I represent Passell regarding his matter before EOC. I am basically unfamiliar with this case and make the following request:

“1) I need a copy of any and all correspondence related to this matter.

“2) As soon as this matter becomes public knowledge, my client will suffer (indeed so much gossip has occurred to this point that these damages are presently ongoing due to the loose mouths of committee members) irreparable harm to his professional reputation which no amount of financial compensation will repair.

“Under these circumstances, we need this matter to remain private at this time, if the League cannot agree to this request, at least for some reasonable period of time, then we need to know ASAP. Sorry not to have more time to review this email, drafted on my handheld this evening Chicago. Everyone please step back and think before we jump off a cliff from which there are only bad outcomes for my friend Passell and the game of Bridge.

Chris”

 

Procedural Summary to the Appeals & Charges Committee prepared by ACBL Committee Staff:

 

“An appeal was filed with the Appeals & Charges Committee Chair, Georgia Heth, by Mr. Passell’s representative, Chris Compton, on August 21, 2015 under CDR 7.2.3 (a-d).

 

“7.2.3 A written notice of appeal must be given to the Appeals and Charges Committee within thirty (30) days following the mailing of the notice of the ruling. In order for an appeal to be granted by the Appeals and Charges Committee Chairperson and considered by the Appeals and Charges Committee, a written statement must accompany the appeal which shall provide an allegation that at least one (1) of the following exists:

 

"(a) The decision is not supported by the weight of the evidence presented at the hearing held by a disciplinary body (i.e. not an appellate body).

 

"(b) Procedures inconsistent with the CDR.

 

"(c) Discipline inappropriate.

 

"(d) One (1) or more person(s) on the hearing panel having a biaswhich effected the decisions of the panel, when objection to suchbias was raised at the hearing.

 

A Stay of Discipline Request pending the outcome of the appeal was submitted by Chris Compton on August 21, 2015 and granted by the Committee Chair on August 26, 2015.”

 

Statement online by Mr. McHenry: “The team members were all connected by phone during the appeal hearing. The appeals committee did not solicit any new testimony except about procedural matters”. The year 2015 rule on presence of attorneys was the same as for the EOC Hearing: a representative can be in the Hearing Room, and an attorney cannot be in the Hearing Room but can be available outside per CDR 7.7.2.

 

Below is the result of the A&C Hearing as printed in the Official Board of Directors Minutes:

 

“Heth (C), Mamula (VC)

Fairchild, Janicki, Pinsky, Reid, Smith. Staff: Van Leeuwen

 

“Committee Report by Chairman

 

“Item 153-01: Report on Hearings

 

“In the Automatic Review concerning ************, ACBL #M190***, the Committee upheld the District Disciplinary Committee's finding of guilt and amended the discipline to six month’s suspension beginning January 1, 2016 followed by four and a half year’s probation and removal of 20% of Mr. ******'s total masterpoints.

 

“In the Automatic Review/Appeal concerning Mike Passell, ACBL #J622382, the Committee upheld the Ethical Oversight Committee's finding of guilt and amended the discipline to a two-week suspension beginning December 20, 2015 and removal of the masterpoints won in the event in question from all members of Mr. Passell's team.”

 

Joint Statement of ACBL and Mike Passell:

“Due to the unprecedented publicity regarding the disciplinary charges brought against Mike Passell, the ACBL and Mike Passell have agreed to issue this joint statement. A complaint was filed against Mike Passell resulting from an incident at the Palmetto Regional in February 2015. A hearing of those charges was held in July before the ACBL Ethical Oversight Committee. An automatic review and appeal of the EOC findings was held in Denver on Sunday, Nov.22, before the ACBL Appeals and Charges Committee. The conclusions of the A&C Committee were received by the ACBL Board of Directors. As a result of the appellate hearing and review before the A&C Committee:

“Mike Passell acknowledges fouling a board at the 2015 Palmetto Regional.

“Mike Passell acknowledges failing to call the director after the incident.

“The EOC found Mike Passell guilty of violating sections 3.1, 3.7 and 3.20 of the Code of Disciplinary Regulations.

“In its conviction for section 3.20, the EOC listed only an ethical violation (but not cheating). These findings were affirmed by the Appeals and Charges Committee.“The EOC used section E13 of the sentencing guidelines to determine Mike Passell’s sentence. The Appeals and Charges Committee determined the correct guideline was E18. The A&C Committee modified Mike Passell’s 13-month probation to suspension for 14 days starting Dec. 20, 2015.“The A&C Committee modified Mike Passell’s forfeiture of 25% of his lifetime masterpoints except the 15.40 MPs earned in the Palmetto event during (My Note: Page 4, November 27, 2015 NABC Daily Bulletin ends here, presumably meaning to continue per my interpretation) “the Thursday Bracketed Round Robin Team””.

IX. MY DISCLAIMERS

 

A. My sole interest is the truth of the matter and the good of bridge as a whole. This Article has been extensively vetted prior to publication.

 

B. I generally held my peace while reading “The Whole Story” and its 1,172+ comments on Bridge Winners, because my long administrative experience told me that something was amiss.

 

C. I am all too aware that this Article may be perceived by some as impertinent or hostile, and may lead to attacks against me personally, as has already occurred when I started to ask compelling questions about this matter a few months ago on Bridge Winners. This publication may also have an effect on my friendships of many decades, although they will not change at all from my direction. Sic fiat.

X. WHY DID I DO THIS?

 

When you have eliminated the impossible, whatever remains, however improbable, must be the truth.

SIR ARTHUR CONAN DOYLE, The Sign of Four

(My Note: The “Jumping Diamond”, from West to East, hasn’t been explained and is presumably eliminated as a magical flying card, conveniently landing so that each hand ends up with 13 cards. How, then, did it move, other than by human intervention? You be the Judge).

 

You can be standing right in front of the truth and not necessarily see it, and people only get it when they're ready to get it.

GEORGE HARRISON, The Beatles Anthology

 

Finally, because I was mortified that several very experienced and very highly qualified people, the ACBL Recorder and Disciplinary Staff, and the most elite of the elite Ethical Oversight Committee, were overruled by a group which seems underqualified to render a lawful and impartial decision. Ms. Heth, the attorney Chair of the Appeals & Charges Committee, gave no reason why Mr. Passell might qualify for the stay of discipline which she granted. The record of the EOC Hearing, with Exhibits, established to the EOC that Mr. Passell had violated Section E13, among others. The BOD, in its own approved CDR, seemingly mandated that punishment then be applied pursuant to Section E13. This conviction of E13 was not mentioned in the Joint Statement, and thus was apparently somehow changed or dismissed by omission. IMHO, an unspoken omission of a convicted count would (E13) not meet the minimum standard of reporting for any appellate body. Terry McHenry, Gen Geiger, Marvin Darter and Linda Darter deserved better: Veritas Liberabit Vos (The Truth Shall Set You Free).

XI. FACTS WHICH I TOOK AS SURPRISING, OR INTRIGUING, OR BOTH

 

A. From Passell/Compton Reply Brief: “When you play as many hands as Passell does ~ week after week ~ cards fall out of boards and instead of slowing the match down, you simply put them back in the board”. If true, this must be done in the opponent’s presence per the Laws.

 

B. Mr. Passell was Declarer on this Board 5 out of 6, so he presumably knew and recalled the layout intimately. Several allusions we made in briefs and testimony that this was the only board of the six-board set that might create a real swing.

 

C. On the given hand, if the Passell score of -200 met a score of -620 for game in either major, the swing, and perhaps many VP’s, would have been -820 or 13 IMPS. Had the defense been different at Mr. Passell’s table, and he misguessed the Jack of Spades, he could have been down as much as -1100.

 

D. Consistent, admissible testimony insisted that the boards were constantly adjusted to be propped up against the left table leg and then falling, over and over, resulting in frequent readjusting by Mr. Passell. Propped up, the South slot would surely be next to the floor and thus next to any card which fell? Why, then, did Mr. Passell “replace the card” into the West slot, which apparently wasn’t “nearest the card on the floor”, without looking?

 

E. THE CASE OF THE JUMPING DIAMOND: there has never been an explanation, or even an attempted explanation of any kind, as to how a diamond moved from the West hand to the East hand. An actual jury would surely find this to be a key to the entire matter, irrespective of all other facts claimed by any party. From the ACBL Statement of the Case: “He (Passell) was not able to explain how both East and West, two different hands, got cards other than the one card that would have been moved based on what his statement was”. (EOC Transcript, Jim Miller, Page 6, Paragraph 3). “He (Passell) had no explanation for how the diamonds(sic) got moved as well as the jack of spades”. (EOC Transcript, Jim Miller, Page 6, Paragraph 10). “A spade moved for the diamond is what actually happened”. (EOC Transcript, Mike Passell, Page 15, Paragraph 9)”.

 

F. Jan Martel has said that she believes regulations prohibit revealing the composition of specific EOC Committees, yet she would prefer they be named publically after a Hearing is concluded. I have chosen not to publish any direct information regarding the EOC Hearing, but do say that I found no evidence in the EOC Hearing Transcript where the “committee promised to state and/or make clear that there was no cheating involved”. In fact, it would be legally impossible to make such a promise before private deliberation, and Mr. Passell was gone when the Committee’s decision was later reached.

 

G. The punishment of 13 months’ probation by the EOC, under the conviction and standard for E13, was well below the minimum recommended two (2) years’ suspension. The masterpoint penalty of 25% of lifetime was the minimum mandated under Section E13.

 

CDR 5.2.13 provides as follows:

When Management receives a hearing report in which the committee has imposed a discipline that contravenes or is inconsistent with the CDR, ACBL Management shall notify the committee chairperson in writing. The committee shall then reconvene on the matter of imposition of discipline. This procedural requirement is mandatory in that “Management shall notify the committee chairperson” and that “the committee shall then reconvene.”

 

The EOC did not state why its punishment was below the recommendation, and Management did not notify the Chair to reconvene the Committee.

 

“CDR Appendix B

ACBL DISCIPLINARY SANCTION GUIDELINES”:

“Part B”

“There are three major reasons why the suggested guidelines in Part A might not be appropriate.

First, the single violation might be either so slight or severe as to make the suggested sanction inappropriate.

Second, the defendant might be convicted for several violations (such as a pattern of behavior).

Third, the defendant might have a previous record.

1. When the defendant’s single violation is either extremely slight or severe, the committee should apply its sound, unemotional judgment. For example, either the experience or mental intentions of the defendant might be a consideration.

Please explain on the Hearing Report Form why the violation was considered atypical.

2. When the recommended sanction guidelines would not have the usual impact upon a guilty defendant, a committee may tailor the length of the discipline in order that the discipline will have the desired impact.”

 

H. Mr. Passell almost certainly retained Chris Compton, on Sunday, 8/16/15, shortly receiving the EOC decision E-mail from EOC Chair Jan Martel. This statement is based on Mr. Compton’s E-mail attorney appearance saying “written Sunday night”.

 

I. Inquiring minds, including mine, might ask who actually “wrote” “The Whole Story” published on 8/17/15, since counsel had, by available evidence, been retained the day before its publication.

 

J. Mr. Passell’s partner did not testify or make any statement throughout.

 

K. The Appeals & Charges Committee dropped the EOC’s conviction of Section E13 from its “Joint Statement”, without any comment whatever as to why E13 wasn’t mentioned, and no comment whatever on whether it had made a new finding of fact that such conviction had been wrongfully determined. It only said, regarding the EOC conviction under CDR 3.1, 3.7 and 3.20: “These findings were affirmed by the Appeals and Charges Committee.", without mention of the E13 conviction.

 

L. Some ACBL Probations means you are not in “good standing” and thus that you may not represent the ACBL or USA in International Competition.

 

M. The Palm Springs, CA Regional ended on December 20, 2015, the first day of Mr. Passell’s new suspension at the hands of the A&C Committee. The ACBL web site showed no tournaments of any kind, sectionals or regionals, during Christmas week.

 

N. The NAP Finals for District 16, where Mr. Passell resides, was held on January 3-4, 2016. Mr. Passell’s new suspension ended on January 2, 2016, the day before the start of the NAP Final.

 

- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -

My Correspondence With Georgia Heth, Appeals & Charges Committee Chair:

On May 9, 2016, at 10:46 PM, gsh <********@gmail.com> wrote:

Hello Georgia!

I'm a former BOD Member from District 12, and was also Chairman of the BOG from 1991 to 1995; currently I'm writing a comprehensive Article on the MP matter. I request that you answer the following if you would, and also indicate if your answers may be published or should remain in confidence, thanks!

1. On what basis did you grant MP the Appeal? I can currently find no evidence to suggest that his counsel met any of the four criteria to qualify for an appeal. If you have such evidence, I would appreciate your sending it to me.

2. On what basis did you stay the discipline that the EOC imposed on MP?

3. Who attended the A&C Committee Hearing on MP?

4. Was MP permitted to add new evidence to the record?

5. On what basis was a brief suspension beginning Christmas week and ended the day before the Texas GNP Final considered appropriate?

6. On what legal and practical basis was a "Joint Statement" issued by the A&C Committee and Mr. Passell? I can find no authority for this in any ACBL rules or regulations, nor have I ever seen it done in a competent Court setting, where the Tribunal is charged with being impartial and/or neutral. If you have seen this elsewhere, I would appreciate the reference.

HI Gary,

According to A and C regulations, I do not believe I can answer any of your questions. The committee did follow its rules.

Georgia

- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - 

XII. MY UNANSWERED QUESTIONS

 

A. Have any other similar, questionable incidents occurred over the decades?

 

B. Might there be some selective memory in this matter? Mr. Passell recalls most clearly how one card was moved, but has no recollection of where the boards were when he counted hands and moved that card, nor does he have any comment at all on the related matter of the “Jumping Diamond”.

 

C. Why have the expert and bridge professional communities been silent after the publication and voluminous comments in “The Whole Story”?

 

D. Many say that it’s almost impossible to dislodge a card, or insert a card where 13 are already present, with metal boards. How could a single card have fallen out of such as metal board, even if thrown down? (A metal board used at the Palmetto Regional was brought to the EOC Hearing and was demonstrated to hold cards extremely firmly).

 

E. Why didn’t Mr. Passell look at the card, and as declarer who had misguessed that very card, know immediately where it belonged and follow procedure used by every player in the ACBL and required by the Laws of Contract Bridge (handling an opponent’s cards without their permission is forbidden)?

 

F. Was Mr. Passell the dummy, declarer, or defender on the final board of the set, Board 6, when the boards under the table kept needing adjustment to stand up against the table leg?

 

G. After inserting the card in what one was firmly convinced was the correct slot, why would one suddenly decide shortly thereafter to count the cards in each of the hands?

 

H. If one hand had 14 cards and the other 12 cards, then wouldn’t moving the top card from the 14 to the 12 solve the mistake?

 

I. THE “SMOKING GUN” JUMPING DIAMOND: How could two cards change places under Mr. Passell’s scenario, which described in detail the migration of the Spade Jack from East to West, but said nary a word about the Diamond which transposed from West to East?

 

J. Mr. Compton’s initial E-mail, making his appearance as Mr. Passell’s, attorney was apparently sent on Sunday evening, August 16, 2015, based on the following words in the E-mail: “drafted on my handheld this evening Chicago”. This raises into question whether Mr. Passell himself wrote “The Whole Story” or whether he had assistance from his counsel who had been retained the night before publication?

 

K. Aren’t Appeals Courts, such as the A&C Committee has been set up, supposed to consist of Judges with more experience and knowledge than those in the Court of Original Jurisdiction?

 

L. CDR 8.3 requires the existence of a “reasonable likelihood of either reduction or elimination of sentence”. No such argument was ever made that I can discover; no statement of why the discipline was stayed has come forth from Chair Heth during the course of my investigation. I can find no evidence that the criteria for the stay of discipline was ever met or even considered by anyone, including by the Chair of the A&C Committee, Ms. Heth.

 

M. Did the A&C allow Mr. Passell and/or his counsel to speak, other than that the convicted has a right to make a statement per CDR 7.7.3, when they had submitted extensive Briefs and nobody is permitted to present any evidence which was not already on the written record?

 

N. Did the A&C consider seeking the testimony of Mary Chilcote, Mr. Passell’s Partner, who has been acutely invisible throughout?

 

O. Did the A&C consider the new evidence or arguments presented in Mr. Passell’s Briefs during their deliberations?

 

P. How did the “convenient punishment” come about; an impartial tribunal would not normally know the dates of Mr. Passell’s forward going bridge commitments if there was no discussion of a “deal”?

 

The decision of the Appeals & Charges Committee completely omitted the fact that Mr. Passell was convicted, among others, of Section E13. Did they change that crucial part of the EOC decision or conveniently ignore it? There was no explanation as to why they made the determination that punishment was appropriate under the “catchall” Section E18. In particular, because E18 was declared to be the proper Section for punishment, why did the A&C deviate from Section E18’s mandatory 90-day suspension, probation, and implied loss of some amount of lifetime masterpoints from 0% to a full 100%?

 

The “Joint Statement” does not indicate why the punishment was way below that recommended, nor does it appear to be authorized under any rules. In fact, the publication of the Joint Statement strongly suggests that the impartial relationship that should exist between an Appellate Body and the convicted was not, in fact, impartial at all. The feather light punishment certainly seems extraordinarily soft.

 

There is no authority for issuing a “Joint Statement”, nor is there any precedent. In fact, the “Joint Statement” seems EXPRESSLY PROHIBITED UNDER THE CLEAR WORDING OF ETHICS OFFENSE E20 IN REVEALING ANYTHING WHICH HAPPENED WITHIN THE CONFINES OF THE A&C HEARING, even Mr. Passell’s admissions. Appellate Courts are charged with being impartial, and the “Joint Statement” could by itself be interpreted by many as collusion. It is my belief that the non-offending McHenry-Geiger-Darter team was not consulted on this “Joint Statement”, though Mr. Passell as the convicted was clearly actively involved.

 

The minimum recommended punishment for violation of E18 is 90 day’s suspension up to expulsion, and removal of 0-100% of the disciplined player’s total lifetime masterpoint holding. The EOC is required to make a statement when the actual punishment is less than that recommended by the CDR. Why didn’t the unauthorized “Joint Statement” include the opinion of the innocent McHenry Team and declare why the punishment was below that recommended in the CDR? To an independent observer, the choice of punishing under E18 would appear to be hand selected to permit Mr. Passell’s retention of his lifetime masterpoint accumulation.

 

"THE" UNANSWERED QUESTION: What happened to Mr. Passell’s conviction under CDR E13? Was it changed? Was it swept under the proverbial rug? Did the Appeals & Charges Committee find it so inconvenient as to ignore it completely? Serious questions remain without answer.

 

Q.   "Alternatively, If Found Passell Intentionally Fouled Board - Although Passell strongly contends there was no intent to either pre-arrange or foul a board.  Assuming there was any intent at all, it was clearly an intent to foul a board not pre-arrange a board. Passell was charged under E-13 for pre-arranging a board and should have been sentenced under E-18 “other ethical violations” for fouling a board.  Is this statement by Passell/Compton semantic gyration?  Why would it not be "cheating" to "intentionally foul a board"?  Wouldn't this be the same as boxing a card when you've received a horrific result?  The Appeals & Charges Committee seems to have bought this, and then applied as close to zero punishment as possible?  You be the Judge.

 

R. Why aren’t A&C Committee Appeals open and recorded on video? The person involved has already been convicted. ACBL Members should have confidence that their BOD is following the rules.

 

S. This entire proceeding was extremely expensive; should ACBL’s 167,000 members pay the cost, as they have already done?

XIII. MY ESTIMATE OF ODDS/PERCENTAGES VALIDATING INCIDENT

 

These are my estimated odds, and mine alone, of the Jack of Spades actually moving the way Mr. Passell claims; there are of course, some assumptions in the calculation.

 

Assumption 1: A card will fall out of a tossed metal board 1 time in 100, which many say is generous.

 

Assumption 2: There is some argument that the Spade Jack was the only interchange that could have had a great effect on the potential result on the hand at the companion table. Mr. Passell’s inadmissible “evidence”, submitted in Mr. Compton’s Brief Exhibits directly to the A&C Committee, gave a description of how a couple of other pairs of cards could be interchanged and also likely affect the potential result on the board. Therefore, I will generously estimate that an exchange of approximately 5.2 of 52 cards might have affected the outcome, or 1/10 of the cards in the entire deck.

 

1/100 – card fall on floor.

x

1/2 – card comes from East or West hand.

x

1/2 – card falls face down.

x

1/6 – card comes from Board 5 of 6, said to be the only swing hand.

x

1/10 – specific card is important to the potential hand result.

_______________________________________________________

1/24,000 – for the scenario presented by Mr. Passell

 

Given these odds, if one played three sessions a day, every day for a year, this event as described “might have” occurred exactly once in that entire year, according to this calculation.

 

Of interest, there is no percentage for why or how the “Jumping Diamond” inexplicably went from the West hand to the East hand. Such seems physically impossible, and was not included in any explanation or Briefs by Mr. Passell.

XIV. THE DETROIT REGIONAL CIRCA 1982

 

This could have happened anywhere from about 1980 to 1987, and I grappled mightily with reporting this, but Mr. Passell’s account is so replete with “I have a spotless five-decade record (The Whole Story)”, “first time offense”, “100% clean record” and “never happened in 40+ years”, that it seems pertinent to the truth of the matter. Also, it bears a striking resemblance to “The Whole Story” in that a transgression occurred and an explanation was brought forth:

 

During either the Master’s Pair or the Open Pair, which in those days were 400-500 table massive single events, I was asked to Chair a 3-person Committee after the evening session. There were two other prominent Detroiters sitting along with me, and the Chief TD (sorry, I do not recall but perhaps the highly respected John Hamilton) brought Mr. Passell and another readily known long time Pro, whose name would be recognized by everyone, but which is irrelevant here. Nobody else appeared.

 

The TD stated that a report was received that Mr. Passell and the other Pro were seen discussing a board in the restroom during the event. The TD further said that both admitted to this, and both added that the board being discussed was “a board both of us had already played with our respective (presumably client) partners”.

 

The TD assessed a full board penalty based on a statement on the inside of every Convention Card at the time, which I believe was in red and bolded/all capital letters, saying approximately that: “Discussion of hands during the session with anyone other than your partner will result in an automatic penalty of one full board”. (Someone might be able to assist with the actual wording).

 

There was no further presentation or argument, and our deliberation, such as it was, ensued. We noted that the full board penalty provision did not have an exception for “having both previously played the hand”, and also considered that well-known bridge professionals are under a special obligation to avoid the appearance of impropriety. Thus, we did not inquire or make any attempt to determine whether the “previously played” statement was true or not true, because we felt it was legally irrelevant.

 

The vote was 3-0 to uphold the TD’s ruling to assess a full board penalty against both Mr. Passell and the other Pro.

XV. MY PERSONAL THOUGHTS AND OBSERVATIONS

 

A. Having thoroughly considered all sources of information, I have a firmly held belief that both the ACBL Recorder and the Ethical Oversight Committee, neither of which has any apparently axe to grind, both got it right based on direct examination of the facts. This would also have been my expectation before the fact, especially of the EOC, composed of 5 of 15 world class or near world class, very experienced players.

 

B. The Appeals & Charges Committee made no stated change in the findings of the EOC, except that it applied punishment under the much more lenient and catchall Section E18 and well below the guidelines even for that Section E18. It completely omitted the more serious conviction under E13 from the discussion, without stating why. The Appeal & Charges Committee’s final punishment greatly contravened the EOC, which had indeed convicted and applied generously light punishment under Section E13, based on their finding that Mr. Passell “prearranged a deal or part thereof including one card”. The EOC’s punishment was already well below the guidelines, yet the Appeals & Charges Committee changed it to make the final punishment virtually non-existent.

 

C. Of more than passing note, though irrelevant to the specific matter at hand, is the 1 Diamond Opener on 7 HCP when the fouled board was played at the second table.

XVI. “THE WHOLE STORY”

 

August 17, 2015 by Mike Passell

 

http://bridgewinners.com/article/view/the-whole-story/

XVII. AN “OFFBEAT INCIDENT”

 

May 4, 2016 by Marvin Darter

 

http://bridgewinners.com/article/view/an-offbeat-incident/?cj=351777#new_2

XVIII. ACBL STATEMENT OF THE CASE PRESENTED VERBATIM

 

(My Note: The following was prepared by ACBL Management for the Board of Directors Appeals & Charges Committee. Per the CDR, it only utilized established testimony introduced before and during the EOC Hearing.)

 

ACBL’S STATEMENT OF THE CASE

“This is an appeal by ACBL member Mike Passell, from a conviction and penalties rendered by the ACBL Ethical Oversight Committee (hereinafter EOC) on August 14, 2015, after a full evidentiary hearing held at the Chicago NABC. It is also an automatic review, pursuant to Code of Disciplinary Regulations (CDR) 7.2.6.The ACBL Appeals and Charges Committee has jurisdiction to hear this appeal and automatic review.

 

Facts of the underlying EOC case

In response to a written complaint filed by Gen Geiger and a player memo filed by Linda & Marvin Darter, the ACBL Recorder’s office conducted an investigation of the complaint. The investigation included telephonically interviewing all members of Darter team (Linda Darter, Marvin Darter, Terry McHenry, and Gen Geiger) and Mike Passell. The evidence received by the ACBL Recorder’s office suggested that Mike Passell had deliberately moved two cards contained in board five of the Swiss match between the Passell and Darter teams at the Palmetto Regional, in February, 2015. As a result of the investigation, the ACBL Recorder’s Office presented the complaint, player memo, and player interviews to the ACBL Executive Committee and requested that they bring formal charges against Mr. Passell. The ACBL Executive Committee chose to bring the following charges against Mike Passell: Violations of Code of Disciplinary Regulations (CDR) 3.1, 3.2, 3.7, 3.20, and E-13.

 

“On August 14, 2015, in Chicago, after conducting a full evidentiary hearing and having taken the testimony of witnesses and the accused, the EOC found Mike Passell guilty of the following sections of the CDR: 3.1 - Violation of the Laws of Duplicate Bridge, 3.7 - Actions unbecoming a Member participating in an ACBL event,3.20 - Cheating and similar ethical violations, and E13 Prearranging a deal or part thereof (including one card).The EOC imposed a penalty of 13 months’ probation and removal of 25% of Mr. Passell’s masterpoints.The CDR recommend, upon a finding of guilt (with respect to section E13), a penalty of 2 years suspension up to expulsion. The finding of guilt with respect to E13 also includes a mandatory penalty of 25-100% of the charged party’s masterpoints. Appendix B of the CDR provides in part, “However, a disciplinary committee, which imposes a sanction which is outside the range recommended by these guidelines, must explain why it chose the sanction imposed.” In this case, the EOC did not provide an explanation for a downward (reduced) deviation from the CDR recommended guidelines of a minimum two year suspension, therefore the Appeals &Charges Committee should, if it sustains the conviction of guilt, impose, at a minimum, a penalty of at least a two year suspension for a violation of E13, (but could impose any more lengthy penalty up to or including expulsion, in its discretion.) The record and transcript are unclear if the EOC rendered a decision as to alleged violation 3.2 of the CDR.”

 

SUMMARY OF EOC EVIDENCE PRESENTED

The EOC reported the following evidence was presented at the hearing on August 11, 2015:Mr. Passell testified as follows: During the two-session Bracketed Swiss event at the Palmetto Regional, after playing Board 5, he threw the board on the ground and subsequently noticed that a card was lying on the ground face down. The board was a metal board. Out of view of his partner and the opponents, he placed the face down card in the slot he believed it had fallen out of. He then wondered whether he had replaced the card correctly, so he counted the cards (again out of the view of his opponents and partner) and found 14 in one slot and 12 in another. He removed what he thought was the misplaced card and placed it in the slot with only 12 cards. All of Passell’s actions (with this board) were done under the table and out-of-view of everyone else at the table. The end result was that Passell moved the Jack of Spades from the East hand to the West hand and a small diamond from the West hand to the East hand after the board was played. Passell neither notified his partner, the opponents nor called the Tournament Director to advise anyone of the irregularity.The resulting fouled board was then passed to his teammates’ table. The fouled board was played at Mr. Passell’s teammates’ table, where a different result was obtained. When comparing scores the opposing team realized that the board had been fouled and brought it to Mr. Passell’s attention. Mr. Passell stated that he did not look at the face-down card before putting it back into the board.He admitted that nobody saw the ejected card besides himself nor did he alert the opponents or a director that a card was on the floor. He claimed he later “counted the cards while everyone wasat the table, but without anyone’s knowledge that he was counting the cards.”

 

EOC FINDINGS OF FACT

The EOC made the following Findings of Fact based upon all the testimony received at the hearing:“The Charged Party (Mike Passell) changed the cards in Board 5 after the board was played. This action occurred out of view of his opponents. Mr. Passell stated that he did not look at the cards he moved, but he had an obligation to look at the cards that he was moving and to inform the opponents of the ejected card before touching his opponent’s cards. The fouled board was passed to his teammates’ table and played in the fouled condition. These actions occurred during a Swiss match in the Bracketed Swiss 2-session event at the 2015 Palmetto Regional.”

 

UNDISPUTED FACTS

PASSELL THREW THE BOARD ON THE FLOOR. – UNDISPUTED

Mike Passell played Board 5. Contract was 5H doubled, Declarer, Passell was North. During play, Passell finessed for the Jack of Spades and claimed down one, when it lost to the doubleton Jack. After going down on Board 5, he admitted that he was angry and threw the board on the floor. “I did throw the board down on the floor.” (Transcript, Mike Passell, Page 8, Paragraph 3). “I wasn’t happy with the result.” (Transcript, Mike Passell, Page 7, Paragraph 2, Sentence 28).

 

METAL BOARDS – UNDISPUTED

“They were metal boards.” (A sample board was presented) (Transcript, Linda Darter, Page 3, Paragraph 9). “At my table this is the type of board they had (lifts the board and shakes it) and no cards were ever falling out”. (She slid the board to the committee members for them to try).(Transcript, Gen Geiger, Page 5, Paragraph 6). “The cards are tight and they do not fall out.”(Transcript, Gen Geiger, Page 5, Paragraph 2). Mike (Passell) told Jim Miller when he looked down at the boards and noticed there was a card on the floor as opposed to in the board.(Transcript, Jim Miller, Page 6, Paragraph 3). “There was one card on the floor”. (Transcript, (EOC Committee Member), Page 8, Paragraph 2&3).

 

DID NOT LOOK AT THE CARD - UNDISPUTED

Mr. Passell had the opportunity to look at the ejected card and resolve any ambiguity about which pocket the card belonged. It would be natural to look at the card because it came from a board that had already been played. It is very reckless to just stick it into a pocket when the issue could have been resolved so easily by looking at the card. “Mr. Passell didn’t look at the card, obviously if he would have, we wouldn’t be here”.(Transcript, Christina van Leeuwen, Page 15, Paragraph 1). “You could have, you had already played it”. (Transcript, (EOC Committee Member), Page 10, Paragraph 2). “The card was face down and Mike said he put it in the nearest slot”. (Transcript, Jim Miller, Page 6, Paragraph 8). “He would have put it in the correct hand”. (Transcript, Christina van Leeuwen, Page 15, Paragraph 1). “He admitted to violating the Laws of Duplicate Bridge but there is still a question of why you would not look at the card”. (Transcript, Christina van Leeuwen, Page 15, Paragraph 7, Sentence 7).

 

NO ONE SAW PASSELL COUNTING CARDS – UNDISPUTED

After allegedly putting the loose card into the closest pocket, Passell claims he had second thoughts so he decided to count the cards. According to Passell’s testimony, he counted the cards under the table and out of sight of all three of the other players. “Then he got to thinking about it so he reached down and pulled the hands out, essentially one at a time to count”. (Transcript, Jim Miller, Page 6, Paragraph 3). “He (Mike) discovered he had a fourteen-twelve situation”. (Transcript, Jim Miller, Page 6, Paragraph 3). “No, we did not see Mr. Passell counting cards from any of the boards”. (Transcript, (EOC Committee Member) & Linda Darter, Page 11, Paragraph 12 & 13). “I did not see any of that”. (Transcript, Linda Darter, Page 11, Paragraph 13). “It was right there next to me and the boards were leaning against the leg”. (Transcript, Linda Darter, Page 11, Paragraph 13). “There is absolutely no way he could have counted those cards because we were sitting at the table and the board never came on the table”. (Transcript, Marvin Darter, Page 17, Paragraph 18).“I don’t know how you can count the cards without taking them out of the slot while it’s on the ground”. (Transcript, Marvin Darter, Page 17, Paragraph 18).

 

THE CARD SWITCHES POCKETS – UNDISPUTED

Mike Passell claimed that he put the loose card into the nearest slot. Then after counting the cards, he realized that he had a 14-12 situation. He attempted to fix this by moving another card from the West hand to the East hand. As a result of moving the cards, the Jack of Spades was moved from the East hand to the West hand, and a diamond was moved from the West hand to the East hand.

 

“Two cards that switched places changing drastically the composition of a hand between when it was played at the first table and when it was played at the second table”. (Transcript, Christinavan Leeuwen, Page 2, Paragraph 3). “He (Mike) was not able to explain how both East and West, two different hands, got cards other than the one card that would have been moved based on what his statement was”. (Transcript, Jim Miller, Page 6, Paragraph 3). “He (Mike) had no explanation for how the diamonds got moved as well as the jack of spades”. (Transcript, Jim Miller, Page 6, Paragraph 10). “A spade moved for the diamond is what actually happened”. (Transcript, Mike Passell, Page 15, Paragraph 9). “You are all very familiar with the metal boards, it is very hard to get those cards into the middle of a hand, even if it’s just one”. (Transcript, Christina van Leeuwen, Page 15, Paragraph 1).

 

THE ALLEGED CORRECTION OF THE 14-12 DID NOT TAKE PLACE IN THE PRESENCE OF EITHER OF THE OPPONENTS - UNDISPUTED

The testimony of Linda and Marvin Darter is clear and definitive that Passell did not count the cards on top of the table. Mike Passell could not remember where he counted the cards. “I asked him (Mike) if he put it in his lap and he said, ‘I don’t recall doing that.’ But he didn’t deny doing it”. (Transcript, Jim Miller, Page 13, Paragraph 1). “The cards were never brought back up to the table”. (Transcript, Linda Darter, Page 11, Paragraph 13). “As soon as the match was over, he picked the boards up from the floor, he gave them to me and said, ‘Take those to your partners.’.” (Transcript, Linda Darter, Page 11, Paragraph 13). “I did [took the board to her partners], and never was any board brought up on the table or anything mentioned about a card falling out”. (Transcript, Linda Darter, Page 11, Paragraph 13). “There is absolutely no way he could have counted those cards because we were sitting at the table and the board never came on the table”. (Transcript, Marvin Darter, Page 17, Paragraph 18). “I don’t know how you can count the cards without taking them out of the slot while it’s on the ground”. (Transcript, Marvin Darter, Page 17, Paragraph 18).

 

THE AUCTION AT THE OTHER TABLE- UNDISPUTED

“Eric Rodwell, who was sitting in the West Chair, doubled showing control of one or both of our suits, the major suits”. (Transcript, Terry McHenry, Page 5, Paragraph 10). “We stopped and let them play it in three diamonds making four instead of going on to four hearts”. (Transcript, Terry McHenry, Page 5, Paragraph 10). “Four hearts would have failed given the way the cards were at our table”. (Transcript, Terry McHenry, Page 5, Paragraph 10).

 

FOULED BOARD AND ADMISSION BY PASSELL TO MOVING CARDS

“I went up to Mike Passell and my husband with me and I said, ‘That board was fouled’.” (Transcript, Linda Darter, Page 2, Paragraph 6, Sentence 9). “Mr. Passell said ‘Well a couple of cards fell out of the boards and I put them back the best I could.’ So at that point I just walked away”. (Transcript, Linda Darter, Page 2, Paragraph 6, Sentence 11 & 12). “I said, ‘But it was fouled’.” (Transcript, Linda Darter, Page 2, Paragraph 6, Sentence 10). “No, that’s not the hand we played.” (Transcript, Marvin Darter, Page 4, Paragraph 10). “They (Marvin Darter and teammates) pulled the cards out of the board and that’s when they discovered the problem.” (Transcript, Marvin Darter, Page 4, Paragraph 12). “When Marvin and Linda Darter pursued Mike Passell, he said, ‘That’s not the point. Some cards fell out of the board and I put them back as best I could.’ Those were pretty much his exact words according to Marvin”. (Transcript, Marvin Darter, Page 4, Paragraph 14). “I saw Mr. Passell handing the boards but did not say anything. I didn’t think anything about it but it was apparent that Mr. Passell’s arm was down there fairly regularly and he (Marvin Darter) thought Mr. Passell was straightening the boards out.” (Transcript, Marvin Darter, Page 4, Paragraph 8).

 

THE ACCUSED DID NOT REPORT THE IRREGULARITIES - UNDISPUTED

“I did not report that to anybody”. (Transcript, (EOC Committee Member) & Mike Passell, Page 13, Paragraph 5 & 6).

 

IMPROPER HANDLING OF THE BOARD BY PASSELL-UNDISPUTED

“Handling the boards in this manner would not be consistent with the Laws of Duplicate Bridge”. (Transcript, Jim Miller, Page 6, Paragraph 11&12). “Anytime a situation like that would arise you would either call the director or bring the hand up on the table and make sure everybody had the same hand that they had started with”. (Transcript, Jim Miller, Page 6, Paragraph 12.) “Linda testified that she and Marvin did go back to the table and asked what had happened with the board”. (Transcript, Terry McHenry, Page 11, Paragraph 5). “When they got an unsatisfactory answer, they went to the director”. (Transcript, Terry McHenry, Page 11,Paragraph 7). “Right away”. (Transcript, Gen Geiger, Page 11, Paragraph 8). “The director said to file a player memo, so that’s what we did”. (Transcript, Terry McHenry, Page 11, Paragraph 9).

 

DID THE EOC HAVE SUFFICIENT COMPETENT EVIDENCE TO FIND PASSELL GUILTY OF THE ALLEGATIONS?

Yes, the EOC based its ruling on the evidence in the record, and that evidence clearly supports a finding of guilt on each of the counts that the EOC convicted Mr. Passell. Mr. Passell claims that he threw the board on the floor because he was upset about going down in 5H doubled. He then claims that a card fell out of the board on the floor. Did a card really fall out of the board? There is sufficient evidence to conclude that a card never fell out the board. The testimony before the EOC was that the teams were playing with old metal-style boards with old cards. The cards don’t fall out of metal boards like they do with new-style plastic boards. Especially when combined with old cards, the cards become thicker and are difficult to get back into the board. In fact, they become so difficult to get out of the board that it is often quite frustrating. These cards simply don’t easily fall out of the boards. Only Passell claims a card fell out. No one else observed a card missing from Board 5. By failing to notify anyone of the irregularity, and fouling the board, Passell created the entire situation, and only after getting caught, tried to explain it away with his implausible story. Given the style of boards, and the cards themselves, it is much more likely that Mr. Passell removed the Jack of Spades intentionally in order to change the hand. If the card did fall out, was it face down? The statement by the accused that the card was face down is a self-serving statement, and therefore should be carefully scrutinized. If it were face up, Passell would certainly know which pocket it fell out of. Assuming it had fallen out, and face down, there was no reason for Passell not to look at it, he had just played the hand (any reasonable person would have looked at the card). Someone of Passell’s experience (he is the ACBL’s #2 masterpoint holder of all time) and expert ability would have no problem recalling the original position of the Jack of Spades, since he had just misguessed its location in his play of the doubled contract. Assuming a card fell out, why would anyone “guess” which hand it fell out of? Certainly not a player of Mr. Passell’s ability and experience, who could easily remember the location of all 52 cards of a hand he had just played. Passell’s contention that he put this one card back in any one of four pockets, without looking at card is not believable or reasonable. The card Passell claims fell out face down could have come from any pocket (or any other Board on the floor. Why wouldn’t he look at the card? It would have erased all doubt about the correct location of the card. The only logical conclusion is that Passell already knew which card it was. Passell’s suggested version of the facts are neither supported by his behavior at the table, after the results were compared, nor the testimony of his opponents. Had Passell either advised his opponents of a card on the floor or called a director, any fouled board could have been corrected before it was passed to the other table to be played. But Mr. Passell chose to touch his opponents’ cards without their permission, knowledge or consent and hide and conceal his actions from his opponents. Passell admitted that he counted the cards under the table while simultaneously hiding this fact from his opponents. Passell claims he counted the cards while the match had moved to another board. He certainly didn’t ask his opponents to wait while he secretly counted the cards. Therefore, if one believes he did this, the only logical conclusion is that he counted the cards on the subject hand while playing another hand. One hand was occupied with the current hand while the other hand was busy counting the board. Thus, he would have to remove the cards from the board with only one hand. This sounds simple enough, but a simple experiment reveals the difficulty. The cards cannot be removed from a tight, metal board unless the board is anchored. No matter which is the dominant hand, a player, he will usually anchor the board with one hand, while removing the cards with the other hand. But, in this case, one hand was occupied with his hand from the new board. So, therefore, how did he anchor his hand? At the EOC hearing, Passell could not remember how he accomplished this feat. This is very convenient, because it is almost impossible. He might have used his foot or his legs. Neither choice grants credibility to his story. It is insulting that he really expected the EOC to believe that he held the board down with his foot while removing cards from the board and holding his new hand in his other hand, all of this accomplished while playing his new hand and his opponents not noticing what he was doing. When Mr. Passell compares results, at the end of the match, with his teammates, he knows something is amiss when his East-West teammates manage to buy the hand for 3 diamonds. Does he ask them about the board? Even though, a player of his caliber would have been very surprised about the result, he chooses not to say anything to his teammates. When the Darter team returns to his table, his initial reaction to the Mr. Passell’s revelation is quite strange, “So I went up to Mike Passell and my husband with me and I said, ‘That board was fouled.’ And he said, ‘What do you care? You won two IMPs on the board.’” (Transcript, Linda Darter, Page 2, Paragraph 7) Only then does he admit that he may have fouled the board, but does he offer to call the Director? No, he does not call the director because he does not want to draw any attention to the fouled board. Instead, his attitude is haughty and arrogant. Hardly, the behavior of someone, who had committed an innocent mistake. The EOC received testimony from the accused, the complainants, and members of ACBL staff who conducted telephonic interviews of each of the witnesses. The EOC had the responsibility for determining which evidence to accept, what weight to give the evidence presented by each party and the bias and prejudices of each witness, if any. It is clear that they could believe or disbelieve any portion of any witnesses’ testimony, or disbelieve all of any witnesses’ testimony. After rejecting Passell’s creative but implausible story, the EOC must have come to the logical conclusion that he intended to change the board. That is contained in their findings of facts. Passell admits that he was angry after going down in 5H doubled. He also testified that he threw the board down on the floor. He knew that the Jack of Spades was on the top of the East hand, because he claimed after losing his finesse to the Jack during the play. He pulled the Jack of Spades out of the East hand and swapped it with a random card from the West hand. This is consistent with the testimony of his opponents, who testified that they noticed him playing with the boards during their match. Passell may have changed the board because he was concerned about his result on the board. He was probably concerned that he would lose a vulnerable game swing, if his opponents bid and made the Heart game at the other table. It was a simple matter for Passell to swap the Jack of Spades from the East hand to the West hand and doom any potential game swing.

 

CONCLUSION

The EOC correctly determined the guilt of the accused. The obligation of the Appeals and Charges Committee is not to retry the case, but to determine if there is sufficient evidence in the record that the accused committed the offenses. The Appeals and Charges Committee should not substitute its judgment of the witnesses’ testimony and the evidence for that of the trier of fact (the EOC). The ACBL requests that the Appeals & Charges Committee affirm the findings of guilt by the EOC of all charges and to correct the penalty imposed incorrectly by the EOC by increasing the punishment to two years Suspension and remove 25% of his masterpoints. This punishment is in accordance with the Recommended Guidelines listed in Appendix B of the CDR. As previously stated, the EOC was required to indicate a reason for any deviation from the Recommended Guidelines. In this case, they failed to provide any explanation for any decrease of the Recommended Guidelines.

XIX. PASSELL/COMPTON BRIEF PRESENTED VERBATIM

 

(My Note: Statement of fact in any brief, when not already on the record, does not constitute admissible evidence.  Per CDR Section 7.4, the end of the EOC Hearing terminated the entry of evidence.  This document was extensively formatted, and is reproduced here in the format permitted by the Bridge Winners site; I was unable to spend a dozen hours on italics, bolds, underlinings, indentations, etc.).

 

Automatic Review and Appeal Brief of Mike Passell

Comes now Charged Party, Mike Passell, ACBL # J622382 (“Passell”) and files this his Brief in Support of Elimination of Charges and/or Reduction of Charges/Penalties.

 

Summary of Facts

During the first round robin swiss match of a Flight A Bracketed Swiss (second tournament session of the day) at the Palmetto Regional held in February 2015, Passell dropped Board #5 on the floor and later noticed a single card had fallen face down on the floor. In the presence of his partner and the opponents, Passell reached down and placed the single card in the hand slot nearest to the fallen card. Thinking that he might have misplaced the fallen card, Passell (still in the presence of the opponents at the end of the match) later counted the cards and found 14 cards in the East hand and 12 cards in the West hand. Accordingly, Passell took the top card from the 14-card slot and placed it in the 12-card slot. (Tr. p. 8) At the table, one of Passell’s opponents complained about his handling of the boards. (Tr. p. 5) Board #5, now fouled, was then moved to Passell’s teammates’ table and played. The ♠J had been moved from the East hand to the West hand and a small diamond had been moved from the West hand to the East hand. In the comparison, it was discovered that Board #5 had been fouled at his table and a discussion ensued between Passell and the opponents as he was “picking up the slip.” Passell noted to himself that his team lost 2 imps on the board as scored and a fouled board penalty would have been 3 imps. The difference of one additional imp loss was not a victory point. (Tr. p. 7) Unaware of the potential for an average-imp penalty adjustment, but aware the opponents knew of the problem, Passell did not report the fouled board to a director. The Bracketed Round Robin Swiss required all teams to play each other in the same order. In other words, the draw is not dependent on the result of any previous match. The final result of the event is below:Unbeknownst to Passell, one of the opponents Linda Darter (“L. Darter”) and her teammate Gen Geiger (“Geiger”) consulted with Tournament Director Karl Miller away from the table and later filed a Recorder Form. Despite occurring on Thursday, neither the fouled board situation nor the Recorder Form was ever discussed with Passell at the Palmetto Regional Bridge Tournament.Apparently, Geiger and L. Darter believe Board #5 was intentionally fouled by Passell at the table directly in front of L. Darter and her partner and contemporaneously with L. Darter commenting to Passell about how Passell was handling the boards. (Tr. p. 2).On April 22, 2015, based on an oral presentation from Management attorney Sam Whitten inExecutive Session with no documents presented and without Passell present, the ACBL Executive Committee decided to make charges and submit the complaint against Passell to the ACBL Ethical Oversight Committee for hearing at the Summer 2015 Chicago, NABC. (Exhibit #1 Minutes of Executive Committee of the Board of Directors) After the hearing, in email correspondence dated August 16th EOC Chair Jan Martel advised Passell of the outcome of the committee’s deliberations:The committee imposed probation for 13 months and also the mandatory penalty of loss of 25% of your masterpoints (that is the minimum mandatory penalty for “prearranging” a board), and the majority of the committee thought that moving the cards, even without knowledge of what cards they were, constituted prearranging the hand. [emphasis added] (Exhibit #6 Jan Martel Email)On Sunday, August 16, 2015, ACBL Management and League Counsel were informed by email that Passell had obtained Chris Compton (“Counsel”) as Counsel who requested nothing be published until the matter could be reviewed. (Exhibit #2 Chris Compton Email) Despite this request for delay, on Monday August 17, 2015, the following published report appeared in the final Daily Bulletin of the Chicago NABC.Mike Passell, #J622382, was found guilty of violating CDR 3.1 (Laws of Duplicate Bridge), 3.7 (Actions unbecoming a Member participating in an ACBL event), 3.20 (Ethical Violations) and E13 (Prearrange a deal or part thereof). He was placed on probation for 13 months and penalized 25% of his total masterpoints. – Aug. 12, 2015In accordance with ACBL Conduct and Disciplinary Regulation (CDR) 7.26, an automatic review was scheduled before the Appeals and Charges Committee (A&C) of the ACBL. Subsequently, in accordance with CDR 7.2.3 Passell filed his written Notice of Appeal. On August 21, 2015, Counsel filed a Request for Stay of Discipline in accordance with CDR 8.2. Finding a reasonable likelihood of either reduction or elimination of sentencing existed (see CDR 8.3), the request was granted on August 26, 2015.

 

Argument

“Sometimes the whiff of scandal can be worse than any actual scandal,” said Husain Haqqani, a former Pakistan ambassador to Washington who has known Ms. Raphel for years. “More people hear that you were investigated than care to know you were cleared …”NYT OCT 12, 2015

 

7.2.3 (a) Findings Not Supported by the Facts

The bidding and play is wrong on the recorder form. The hand analysis is wrong in the testimony. (Exhibit #3 Bidding, Play & Analysis) The EOC transcript makes it clear that that Passell unintentionally fouled Board #5 because there was no intent in his actions. Passell never looked at the cards. This should have resulted in a procedural penalty only. EOC Chair Jan Martel notified Passell of the Committees’ findings acknowledging that Passell did not see the cards (Email of August 16th). Jim Miller’s testimony recounting his phone interview with Passell is that Passell told Jim:“He [Passell] never saw the card itself.” (Tr. p. 6)Passell’s testimony is that he did not see the card he moved.“I did not look. I should have. I should have called the director.” (Tr. p. 8)“I did never turn the card face up and looked at the card, that I can promise you. (Tr. p. 10)“I didn’t. If I had we wouldn’t be here. […] I mean I’m capable of remembering what the cards three hands earlier are.” (Tr. p. 10)Also, Management Presenter Christina van Leeuwen stated:“… Mr. Passell didn’t look at the card obviously if he had we wouldn’t be here, he would have put it in the correct hand.” (Tr. p. 15)Prearranging a hand by definition requires one to move or organize into a particular order in advance ~ i.e. a conscious perpetration (the element of proving an ethical violation as required by the CDR definition of Ethical Violation) of knowledge of what the cards were before or after moving them. [emphasis added]Pre means 1 a (1): earlier than; prior to; before(2): preparatory or prerequisite tob: in advance; beforehand2 in front of; anterior toArrange means 1 to move and organize (things) into a particular order or position2 to give a particular order or position to the parts of (something)3. to organize the details of something before it happens; to plan (something)(Miriam Webster Online Dictionary)Common sense tells us that to pre-arrange a hand, there must be order in the action taken. Otherwise, blindly shuffling can be argued to organize a hand. This is directly contrary to Passell’s action of placing and replacing the fallen card in the incorrect hand without looking at the cards.Interestingly, EOC chose to find Passell guilty of prearranging the board even without knowledge of the cards. Yet the committee obviously wanted to impose the lightest sanction for pre-arranging a hand. Additionally, the committee did not include a statement as to why the sanction was outside the range recommended by these guidelines which is required by CDR Appendix B.CDR 5.2.13 provides as follows,When Management receives a hearing report in which the committee has imposed a discipline that contravenes or is inconsistent with the CDR, ACBL Management shall notify the committee chairperson in writing. The committee shall then reconvene on the matter of imposition of discipline. This procedural requirement is mandatory in that “Management shall notify the committee chairperson” and that “the committee shall then reconvene.”It is assumed that the purpose of such notification is to allow the committee to reconsider the penalty imposed so that a fair, just and appropriate result could be obtained. If no notice was given by Management to Jan Martel as required and the EOC committee never reconvened, then ACBL Management did not comply with the procedures for a proper disciplinary hearing. This inconsistent finding by the EOC of guilt without intent should send up a red flag to anyone reviewing this case. Passell is of sound character and reputation as represented in the testimonials. (Exhibit #4 Testimonials) As the #2 ACBL Masterpoint holder of all time with more than 78,000 Masterpoints, multiple time world and national champion, member of the ACBL Hall of Fame, past member of the Ethical Oversight Committee, past member of the USBF Board, past member of the Hall of Fame Committee, present long-time member of the Nationals Appeals Committee, and one of the world’s most successful bridge professionals with more than forty-years of experience – common sense tells us that Passell would not move a card after a hand was played – before the hand was played at the other table – while the opponents were commenting on his handling of the boards. Passell would not decide to cheat at a Florida Regional in an inconsequential event; and then next openly admit to both the opponents and the EOC what he had done. Passell is way too experienced a player to believe that he could move a card from East’s hand to West’s hand after he played a hand, before it was played by his teammates, and hope no one in the Flight A event uncovered his actions.

 

Why Not Let Others in on the Fouled Board?

Passell did not call the TD (although Passell readily admitted to the EOC he should have called the TD); (Tr. p. 8) but, because the confrontation with the opponents while “picking up the slip” was mildly hostile, he acted consistently with his own non-confrontational personality, and withdrew from the confrontation. Because Passell never looked at the face of any card he knew he could not have done more than unintentionally foul Board #5. Passell was confused by his teammate’s 150 in 3♦, thinking nothing serious had happened. Either Passell had lost two imps or he had fouled the board and would lose three imps if the board was tossed (which imp was not a victory point difference). (Tr. p. 7)When you play as many hands as Passell does ~ week after week ~ cards fall out of boards and instead of slowing the match down, you simply put them back in the board. Passell simply replaced the card which had fallen on the floor with Board #5 in plain sight according to both of his opponents. He was not trying to hide anything, just replacing the card in the board. According to L. Darter and M. Darter, there was no feeling of anything being wrong at the table while they were playing. CV: “I would like to just have Linda and Marvin reiterate what they saw at the table. Did you see Mr. Passell counting the cards from any of the boards?” (Tr. p. 11)LD: “No […] I did not see any of that. It was right there next to me and the boards were leaning against the leg […] I had no reason to believe that anything was going on with him and the board. I guess I had no reason to believe that.” (Tr. p. 11)MD: “There was never any feeling of anything being wrong at the table while we were playing. […] And I’ve always had a lot of respect for Mr. Passell and his ability, and I always thought of his honesty. There was absolutely no feeling that anything was going on at the table other than it was annoying that he kept kind of – it looked like he was straightening up the cards […] the boards and cards.”(Tr. p. 17)Passell is confused about L. Darter’s testimony (sitting West) “It was right there next to me and the boards were leaning against the leg.” (Tr. p. 11). Passell, who plays bridge left handed, holds his cards with his right hand and keeps the boards flat on the floor to his left. In this position, it is M. Darter, Passell’s LHO who would have been right next to the boards. Additionally, L. Darter and M. Darter both testified that when they approached Passell to discuss the foul board, Passell responded, “What do you care? You won two imps on the board.” (Tr. p. 2 & 4) On the contrary, Passell testifies that this was not his response to either L. Darter or M. Darter. Passell testified as follows: **: “Did you think that was – If that were the response that you have them, was that an appropriate response?”MP: “I didn’t – that wasn’t my response.” (Tr. p. 13)  Passell did not look at the cards and had no intent to change the cards between the East and West hands. Therefore, it did not occur to him to call the director or take any further action after discussing the issue with the opponents. Passell acted entirely consistent with his personality, he withdrew from the confrontation with his opponents figuring the opponents would call the TD. When he heard nothing further from the opponents or the TD, he thought everyone was satisfied because he believed there was no victory point difference. (Tr. p. 7) TD Miller was consulted by L. Darter and did not attempt to investigate the fouled board. He did not think anything of Board #5 and no one asked him for a score adjustment. Counsel obtained the following information from TD Miller via a phone conversation on approximately September 20, 2015. TD Miller remembers being approached by L. Darter after the score was turned in, the result posted and no one asking for a score adjustment. TD Miller did not consider a foul-board remedy or any other remedy for that matter. Miller gave L. Darter a recorder form to write up the incident. Had the tournament director approached Passell about Board #5, the facts would have been gathered and a procedural penalty would have been accessed at the tournament. The only thing Passell is guilty of is unintentionally fouling a board and he should have been given a procedural penalty and not the overly severe penalty actually imposed.

 

7.2.3 (b) Procedures Inconsistent with CDR

Ethical Oversight Committee Did Not Have Jurisdiction to Hear Charges. Passell contends that the EOC did not have jurisdiction to hear the charges. The only body which may bring charges in front of the EOC is the ACBL Management. Accordingly, the only legal charging party to the EOC is either the ACBL CEO or his designee. According to the Minutes of the Executive Committee of the Board of Directors (“BOD”) dated April 22, 2015:After discussion, the Executive Committee decided to make charges and submit the complaint against Passell to the ACBL Ethical Oversight Committee for hearing at the Summer Chicago NABC.CDR 1.5 statesThe Ethical Oversight Committee shall, upon charges being brought by ACBL Management whether based upon a complaint submitted by ACBL or another entity or individual, hear original cases of alleged cheating by use of signals, other unauthorized information, other forms of cheating, or serious breaches of ethics.Furthermore, in the Notice of Hearing by the ACBL Ethical Oversight Committee Written Statement of Charges and Complainant (“Notice of Hearing”) states:In response to a player memo and accompanying letters from Linda Darter (ACBL #P117515) and Gen Geiger (ACBL #P473621), charges have been made (in accordance with Section 1.5 of the ACBL Code of Disciplinary, quoted below) by the ACBL Executive Committee acting for the ACBL Board of Directors to the ACBL Ethical Oversight Committee. [bold emphasis]The CDR clearly states that charges heard by the EOC must be brought by ACBL Management. In reviewing previous actions by ACBL Management, the ACBL Bylaws (ART V and VII), the CDR, and all other regulations approved by the ACBL BOD, there is no apparent authority for the Executive Committee to be a part of ACBL Management. And, in fact, the introductory paragraph in the Notice of Hearing above clearly states that the Executive Committee is acting for the ACBL Board of Directors and NOT ACBL Management. Additionally, principles of business association clearly state that the Executive Committee is a sub-committee of the Board of Directors capable of acting between meetings to bind the organization. Policy formulation verses implementation requires strict adherence to this separation of roles between the BOD and ACBL Management. CDR 1.5 clearly states that charges against Passell were illegally brought by the ACBL Executive Committee as the Charging Party.Furthermore, there is precedent for following proper procedure. In the matter of Ken Gee, you will see the Letter of Complaint was sent directly to ACBL CEO Jay Baum and the Charge Letter was sent directly from ACBL CEO Jay Baum to the EOC. The Executive Committee was not involved in the Gee case at any level. Based on CDR 1.5, principles of business association and past ACBL cases of ethical violations, the EOC does not have jurisdiction because charges were filed by the wrong party in contravention of the CDR. Accordingly, Passell requests that the EOC’s findings and penalties be dismissed.

 

Management Overzealous

Tournament Directors deal with fouled boards all the time, none have ever ended up before the EOC. By taking the case to the Executive Committee without the support of the TD or the DIC, Sam Whitten acted despite the complete lack of evidence that Passell intentionally prearranged a board. Further evidence of management overreach is this email response from National Recorder Sam Whitten when Counsel requested the following information. (Exhibit # 7 Sam Whitten Email) 1) As you maintain that the Exec Com is part of management, (objection reserved), please tell me the date the Executive Committee received the Complaint? Was a written complaint presented to the Exec Com? (Should Peter answer this question?) If so, please provide a copy of same.   1) Relevance: This information is related to a solely internal process of the ACBL that is not required by the CDR. The CDR does not require that we use a Charging Party. The fact that we did or did not present this case to the Executive Committee was entirely our choice. Therefore, the manner in which we chose to present it to the Executive Committee is also our choice and therefore wholly not relevant to these proceedings. CDR 1.5.1 states, “ACBL Management may be both the complainant and the charging party.”

 

Charge was Untimely Filed

CDR 5.2 reads: “Disciplinary Procedure for the Ethical Oversight Committee and Unit, District and ACBL Disciplinary Committees.”1 In cases involving disciplines brought by other organizations, CDR 2.2.3(f) allows the Executive Committee to make charges under 3.17 and refer the matter to the Ethical Oversight Committee.5.2.1 states “A complaint requesting a disciplinary hearing must be made in writing to the appropriate entity having jurisdiction, i.e. Unit, District, or ACBL within the period of limitations described in CDR 5.2.1 (a)”5.2.1 (a) states “A Direct Complaint involving a single incident of conduct must be brought within thirty (30) days of discovery of the incident.” Passell maintains that this is a single incident of conduct which was presented to the Ethical Oversight Committee in Chicago and requires a written Direct Complaint within thirty days of discovery of the incident. Fouled Board #5 occurred on February 18, 2015 and the Ethical Oversight Committee convened on this issue on April 22, 2015. No complaint was brought with the 30 day period as required. Passell does not disagree that ACBL Management may be both the complainant and the charging party. However, according to the Notice of Hearing and an email dated October 9, 2015 from Chairman Heth, “Linda Darter and Gen Geiger are the complainants and are invited [t]o the appeal/review.” The Charging Party is the Executive Committee according to the Executive Committee Minutes dated April 22, 2015. None of these parties are ACBL Management. Again, Counsel wrote to Management:2) Please cite the specific references which gives a player memo the status of a complaint. I have been looking at Recorder Regulations appendix C definition F which says “A player memo is a written document informing the Recorder about an incident. This is not a complaint, but may be used as the basis for a complaint.” Definition D says “Complaint: A written accusation by an ACBL member, [……. ], ACBL Management or a Unit or a District alleging conduct in violation of CDR 3 that requests that charges be made to the appropriate disciplinary body.”  2) Waiver: Any arguments about the manner in which this case was presented to the Executive Committee were waived when Mr. Passell failed to present them at the Ethical Oversight hearing. Passell points out that the procedural manner in which this case was brought by the ACBL Management clearly requires review by the A&C Committee in light of the multiple errors committed. Sadly, it appears perhaps ACBL Management has forgotten that the Board of Directors are elected to govern this organization and the CDR were put in place to make sure the ACBL Management did not abuse their power. This is a clear case of ACBL Management stepping outside the CDR. Passell’s case should be dismissed as a clear signal to ACBL Management that they, too, must follow the CDR. In Response to the following request from Counsel,3) Please cite the specific references which give the reporter the status of complainant. Under Guidelines for Execution of Duties F.a. “If a Recorder will be filing a complaint, the subject and reporter should be so informed as the reporter will likely be a witness at the hearing. The complaint if filed with the appropriate organization’s Charging Party [.]” This seems to clearly state that the Recorder will be the Complainant and the reporter will be the witness, not a complainant.Management replied:3) Confidentiality: The meetings of the ACBL Executive Committee are confidential and may not be disclosed to third parties. Passell is not requesting a transcript of the ACBL Executive Committee’s meeting. Passell is requesting an explanation as to why Geiger and L. Darter, who were the reporters (witnesses), are listed as the Complainants in the Notice of Hearing.

 

Recorder Form Is Not A Complaint.

Passell argues that Geiger and L. Darter are witnesses and not complainants based on the Recorder Regulations and Procedures (Exhibit #5 RRP). In the Notice of Hearing by the ACBL Ethical Oversight Committee Written Statement of Charges and Complainant, Geiger and L. Darter are copied as Complainants.Appendix C – Recorder Regulations and Procedures Definitions D. Complaint: A written accusation by an ACBL member, […], ACBL management […] alleging conduct in violation of CDR 3 that requests that charges be made to the appropriate disciplinary body.F. Player Memo: A written document informing the Recorder about an incident.This is not a complaint but may be used as the basis for a complaint.Geiger and L. Darter filed a player memo (recorder form) on February 19th. Subsequently, Geiger wrote an inquiry to Howard Weinstein asking his advice on the matter. There is no document presented by either Geiger or L. Darter that would stand as a complaint. Accordingly, Passell asks that Geiger and L. Darter be removed as complainants in this matter, In the alternative, if Geiger and L. Darter are found to be complainants, then the EOC does not have jurisdiction over this matter because EOC can only hear charges brought by ACBL Management (See CDR 1); and, therefore, the charges should be dismissed.

 

Reporters Are Witnesses, Not Complainants.

Passell maintains that Geiger and L. Darter are witnesses, not complainants based on the Recorder Regulations and Procedures Guidelines of Execution of Duties.Appendix C – Recorder Regulations and Procedures Guidelines of Execution of Duties F. After a complete investigation, the recorder makes an evaluation.a. If a recorder will be filing a complaint, the subject and reporter should be so informed, as the reporter will likely be a witness at the hearing. The complaint is filed with the appropriate organizations’ charging party.Geiger and L. Darter filled out the initial recorder form. Geiger wrote the inquiry to Howard Weinstein. At the hearing in Chicago, Geiger and L. Darter both testified. Clearly, both Geiger and Darter are witnesses. Based on section F.a. above, Geiger and L. Darter cannot be both a complainant and a witness. Accordingly, Passell requests that Geiger and L. Darter be removed as Complainants in this matter.

Geiger and L. Darter are Named ComplainantsIn the Notice of Hearing by the ACBL Ethical Oversight Committee Written Statement of Charges and Complainant, Geiger and L. Darter are copied as Complainants. In a clarification email dated October 9, 2015 from Appeals & Charges Committee (“ACC”) Chair Georgia Heth, “Linda Darter and Gen Geiger are the complainants and are invited to the appeal/review.” (Exhibit #8 Georgia Heth Email) According to CDR 1.5, the charges may only be brought by the ACBL Management and not by individual players.CDR 1.5 states The Ethical Oversight Committee shall, upon charges being brought by ACBL Management whether based upon a complaint submitted by ACBL or another entity or individual, hear original cases of alleged cheating by use of signals, other unauthorized information, other forms of cheating, or serious breaches of ethics.Geiger and L. Darter are individual ACBL Members and are clearly not a part of ACBL Management. Accordingly, the EOC does not have jurisdiction over this matter because EOC can only hear charges brought by ACBL Management; and, therefore, Passell requests that the charges and penalties be dismissed.

 

Passell Was Unaware of His Right to Question Witnesses Through the Chair.

During the hearing, Passell was not made aware that he was entitled to “question persons testifying through the Chair, and at the Chair’s discretion” based on CDR 5.3.6(f). On the bottom of page 1 and top of page 2 of the hearing transcript, Chair (EOC Member) (“Chair”) states the following:Our procedure today will be to allow the ACBL Representative up to 30 minutes to present evidence and discussion in support of its case followed by questions of the committee, if any. Then Mr. Passell will be given up to 30 minutes to present evidence and discussion in his defense followed by questions of the committee if any. […] After the presentation of evidence, discussion and committee questions the committee will adjourn to its deliberations. It appears, based on the above statement that even the Chair was unaware that Passell was entitled to ask questions of the witnesses. Rather, based on the above, Passell believed that only the Committee could question the witnesses. Accordingly, Passell was not provided an opportunity for a fair hearing as is the purpose of the Code of Disciplinary Regulations.

 

Presenter Did Not Make an Impartial or Neutral Presentation of Evidence

Passell argues that procedures were inconsistent with the CDR in that by CDR definition the Presenter is required to be an impartial and neutral presenter.Presenter: A person selected by the Chairman of the Disciplinary Committee or the organization with jurisdiction, to make or assist with an impartial and neutral presentation of evidence to a disciplinary body. CDR Definitions. [emphasis added]In an EOC hearing, the charged party (Passell) is not allowed to have an attorney present during the hearing (CDR 5.3.6(c)). For equity purposes to balance this attorney prohibition and the low evidentiary standard of “preponderance of the evidence,” a Presenter is required to be impartial and neutral. Christina van Leeuwen is listed as a Presenter at the beginning of the hearing transcript and she states in her opening remarks that she is going to present […]. Presenter van Leeuwen is clearly an ACBL advocate because her entire presentation was partial and biased towards Management. CV: “Changing drastically the composition of a hand…” (Tr. p.2)CV: “Did you see Mr. Passell fiddling with the boards?” (Tr. p. 3)CV: “So what we have here is a series of ugly coincidences and what we’re asking the committee to determine is whether or not there’s anything to these than just a very ugly series of coincidences. We don’t typically these sort of cases on one hand, but when you have a series of a card is face down on the floor, Mr. Passel didn’t look at the card obviously if he had we wouldn’t be here, he would have put it in the correct hand. There wouldn’t be any question. Not only that but he apparently didn’t put it in the top of the board. I know you’re all very familiar with the metal boards it’s very hard to get those cards into the middle of hand, even if it’s just one, and the reason I say that is because then –MP: “I actually think I did but when I – when I counted the cards I – I don’t know.”CV: “Okay, but then it got switched, the card that he thought he put into the board got switched over to the opposite side of the board.CV: And this just happened to occur in a fairly close match, the one hand there was a potential for a very large swing. The fact that he never brought these – these cards up onto the table, it – there – there’s sort of an – you know – an implied intent there. Why is all of this rearranging happening out of the site of the opponents. He says now he doesn’t remember whether they could have seen it or not, but we have two witnesses who’ve clearly stated that they saw this – they didn’t – they saw him playing with the boards, but they did not see him taking the cards in and out. The other fact is his reaction when he was confronted with this, we have two witnesses stating that his reaction was that you know, “Well, why do you care? You – you won two imps on the board.” Now he has an explanation for why his reaction was this, but at the time that’s a very strange reaction to being told a board was fouled during our Swiss match. He has admitted to violating the Laws of Duplicate and we appreciate, but there is still this question of why would you not look at the card? Why would you then decide to count all of the cards and then move a card and still not look at it to make sure you’re putting a correct card into the other hand?I don’t think any of the bridge players in this room, and we’re all bridge players, would have handled the board in this particular manner, it’s-it’s-it’s very strange. And the fact that it has such a huge outcome on this particular hand making four hearts an impossibility to make at the other table, is again perhaps just a very ugly coincidence.” (Tr. p. 15)Passell requests that the EOC determination of prearranging the hand be vacated due to procedures inconsistent with the CDR.

 

7.2.3 (c) Discipline InappropriateWith no evidence of bad intent and with a conclusion by a majority of the EOC, as reported by (The EOC Chair), that supports the argument there was no finding of bad intent, what laws or regulations might Passell be found guilty of violating? And the answer is, if anything, Passell is guilty of not calling the director to fix a fouled board. If there was a violation at all, it was procedural and not disciplinary. Therefore, a procedural penalty, not a disciplinary penalty, should have been imposed. Passell assumed that the opponents would return to him or call the director if they were dissatisfied with the result. Passell thought a three imp fouled board penalty instead of a two imp loss, was not a victory point. (Tr. p. 7) Passell never denied that he unintentionally replaced the cards in the board and failed to summon a director. To the contrary, he clearly admitted such to the EOC. (Tr. p. 8) Laws of Duplicate Bridge 9, entitled “Procedure Following an Irregularity” provides in B.1.(a) that, “The Director should be summoned at once when attention is drawn to an irregularity.” Note that 9.B.1.(a) uses the term “should.” In the Introduction to the Laws, it says, “Established usage has been retained in regard […] “should” do (failure to do it is an infraction jeopardizing the infractor’s […] rights but not often penalized),” Passell should have called the TD. By not doing so, he committed an action jeopardizing his rights - - but which action is not often penalized. Law 87, entitled, “Fouled Board provides that, “A board is considered to be “fouled” if the Director determines that a card (or more than one) was displaced in the board or if he determines that the dealer or vulnerability differed between copies of the same board, and the contestants who should have had a score comparison did not play the board in identical form for such reason.”Law 90, entitled “Procedural Penalties” provides in relevant part in B. that, “Offenses Subject to Procedural Penalty. The following are examples of offenses subject to procedural penalty:5. touching or handling of cards belonging to another player (see Law 7).6. placing one or more cards in an incorrect pocket of the board. ”If anything, Passell was guilty of violating Law 90B.5 and B.6. Those violations would warrant a procedural penalty. There is no statement in the laws that prescribes what that procedural penalty should now be. But the “Scope of the Laws” states, “The Laws are primarily designed not as punishment for irregularities, but rather as redress for damage.” The penalty imposed by the EOC on Passell far exceeds that which would constitute a redress for any damage caused by the inadvertently fouled board. 10 years of masterpoints and 13 months on probation is too harsh a penalty.The A&C has discretion to lessen any penalty, with particular reference to first-time offenders, and are not bound by the E-13 guidelines. Part B of the Ethics Guidelines states: “There are three major reasons why the suggested guidelines in Part A might not be appropriate. First, the single violation might be either so slight or severe as to make the suggested sanction inappropriate. Second, the defendant might be convicted for several violations (such as a pattern of behavior). Third, the defendant might have a previous record. When the defendant’s single violation is either extremely slight or severe, the committee should apply its sound, unemotional judgment. For example, either the experience or mental intentions of the defendant might be a consideration.” [emphasis added]The A&C must consider the appropriate penalty, if any, to be imposed on Passell, a player without any prior record of ethical or conduct violations in a bridge career that spans 45 years, for a procedural violation, and not a disciplinary penalty resulting from an ethical impropriety. Any action taken by the A&C must, in fairness to Passell and to accurately reflect its conclusions, make clear that such penalty is procedural, not disciplinary, and NOT the result of a finding of “cheating” or “prearranging a hand.”

 

Alternatively, If Found Passell Intentionally Fouled Board

Although Passell strongly contends there was no intent to either pre-arrange or foul a board.Assuming there was any intent at all, it was clearly an intent to foul a board not pre-arrange a board. Passell was charged under E-13 for pre-arranging a board and should have been sentenced under E-18 “other ethical violations” for fouling a board.

 

Conclusion

Passell is of sound character and reputation as represented in the testimonials. Passell’s play in 5♥x of finessing the jack of spades backwards through the preemptor saved a trick at his table and with a usual line of play, 4♥ was going down at the other table. (See Exhibit #3) Common sense tells us there is no reason any card, much less the jack of spades would be intentionally exchanged on Board #5. Passell simply unintentionally fouled Board #5. The finding that Passell prearranged the board is wrong in fact and law. Passell, without looking at the cards, mistakenly exchanged cards between hands. Passell’s action was a procedural violation of fouling a board, not an ethical one. A necessary element of an ethical violation is bad intent. There was no bad intent found by the EOC. Rather, the EOC Chairman stated Passell acted without knowledge of what card he moved. Management did not follow its own rules and the whole procedure has been a series of consecutive errors: The Tournament directors should have investigated the recorder form filed by witnesses.The Charges were not brought timely. The complainant was inappropriate according to the CDR.The initial hearing was heard by the wrong committee. The combination of no attorney allowed, the presenter not being neutral and the low evidentiary standard of preponderance rendered the ACBL process flawed.The punishment is inappropriate, unfair and grossly disproportionate for a single fouled board.The loss of 18,000 masterpoint is too severe a punishment for unintentionally, inadvertently fouling a board.Accordingly, Passell respectfully requests this Committee dismiss all charges and publically retract the charges.

XX. ACBL REBUTTAL PRESENTED VERBATIM

 

ACBL’s Rebuttal to the Charged Party’s Written Statement

 

This appeal/automatic review is to determine if the record contains sufficient evidence to support the findings and conclusions reached by the Ethical Oversight Committee (EOC). This appeal is also to determine if the EOC applied the correct regulations, and imposed the correct penalties. It is not a new trial or a re-evaluation of the evidence.

 

The ACBL respectfully submits that the EOC correctly performed its duties in all respects, except that it failed to impose the correct penalty for the offenses for which they found Passell guilty.

 

The EOC had (and this committee has) sufficient grounds to disbelieve all or partof Passell’s testimony. There have been at least three versions of Passell’s story. The first version was given when Jim Miller of the National Recorder’s office contacted Passell regarding the complaint letters and player memo received from Gen Geiger and Linda Darter.

 

The second version was presented before the EOC at the Summer NABC in Chicago. This version was even less credible. Passell still admitted to changing the cards, but also claimed to have forgotten the details of just how this was accomplished.

 

The third version (My Note: “The Whole Story”) appeared online after the outcome of the EOC hearing was published. Passell’s partially lost memory was now restored enough to provide yet another version. In this version, Passell failed to mention that he had moved a second card, counted the cards, and rearranged the hand to a more favorable position for his team. Passell’s written statement even has the audacity to submit new evidence in Exhibit #4 of statements made by players after reading his intentionally inaccurate online version.

 

The “Summary of Facts” as recently offered within the Passell brief must be arguably based on Passell’s most recently restored memory/ version of events and relies on only minimal references to the hearing transcript.

 

Therein lies the First problem, of course. Passell’s recently recovered memories are not relevant, nor admissible, to this review and appeal by the Appeals and Charges Committee as they were not made part of the record at the time of the full evidentiary hearing in Chicago. CDR 7.4 states, in part, “Appeals will be considered on the record made in prior hearings. No new evidence shall be allowed.” Passell’s Exhibits #2, #3, #4 and #6 are all new evidence and as such have no relevance in this hearing and are not admissible for this committee’s consideration.

 

Passell’s brief includes heavy reliance within the ‘Argument’ section on Exhibit #3 “Bidding, Play & Analysis”. None of these arguments were submitted in the original EOC hearing nor was there any suggestion that the information contained on the Player Memo was incorrect. At this time, any new, outside analysis of the play or bidding not introduced during the EOC hearing cannot be considered, for the same reasons cited above.

 

The remainder of Passell’s arguments, that the underlying charges should be dismissed, are all technical arguments without merit.

 

Passell suggests that because the EOC did not impose the correct penalty, that the issue cannot be reviewed by this committee. That position is mistaken. The CDR charges A&C specifically with the responsibility of considering the severity and duration of the discipline previously applied, going so far as to grant them the ability to increase the penalty imposed (CDR 7.2.6).

 

Any argument, by Passell or his representative that Gen Geiger and Linda Darter (who brought the fouled board to the attention of both Mike Passell and the TD Karl Miller) did not somehow fulfill their obligation to report the incident (because the next time Passell heard about the complaint was from the National Recorder) is preposterous. Further, for the same reasons as given above (CDR 7.4) any conversation Passell or his representative had with Karl Miller after the hearing is notrelevant (and not admissible) because it was not presented to the EOC at the time of the evidentiary hearing (and not relevant to guilt or innocence or the penalty imposed).

 

. . . . . . .

 

This case is not about whether Passell’s opponents were so disturbed by this incident that they took the added steps of writing letters, filling out a player memo and seeking outside help as to what to do. Nor is it about if they are complainants as well as witnesses. These arguments are all “red herrings” to divert this Committee from the basic facts of the case. The facts properly presented to the EOC clearly demonstrate the guilt of Passell as to all charges.

 

Passell was clearly aware of his right to question the witnesses, as the Chair of the EOC asked the parties if they had any questions of a witness, as demonstrated within the hearing transcript. (EOC Transcript p.7) In addition, Passell was informed of his rights to question witnesses in the original Notice of Hearing, pursuant to CDR 5.2.3. All of the technical arguments aside, the core of this case boils down to a very simple fact: Had Passell behaved in an appropriate and ethical manner in this situation, no charges would have been brought.

 

While boards get fouled all the time, they can be handled efficiently and appropriately by a Tournament Director or by consulting with the opponents at the table. However, Passell did not act in an appropriate manner. Based upon the EOC ruling, the members of the EOC clearly did not believe Passell’s explanations that he adjusted the board under these circumstances without looking at the card found lying on the floor. The EOC was acting within their charged duties when they found that Passell’s actions coupled with his attempted explanations were simply not credible.

 

The EOC did not believe Passell’s self-serving statements that he was attempting to correct the board. The EOC did believe that he looked at the card on the floor and knew its correct location. The EOC did believe that Passell took multiple hands out of the board and rearranged the cards for that board. The EOC did believe that the board was fouled entirely through Passell’s actions. The EOC did believe that the board was changed, by Passell, to a position more favorable to his team. The EOC did believe that Passell accepted the result on the board even though he knew it had been fouled. The EOC did believe that he did not admit to changing the board until confronted by his opponents. The EOC did believe the most important fact of all: Passell took all of these actions with the boards under the table, so that his opponents would not know that he rearranged the board. The EOC believed that all of these facts constituted substantial proof that he acted intentionally to rearrange the board.

 

The ACBL submits that the EOC correctly determined the issue of guilt of Mr. Passell and this committee should affirm the committee’s finding that Passell’s actions were in violation of CDR 3.1, 3.7, 3.20, and E-13.

 

On the issue of penalty, the ACBL submits that the EOC incorrectly applied a penalty outside of the recommended guidelines, without giving a written reason therefor. Appendix B of the CDR states, “However, a disciplinary committee, which imposes a sanction which is outside the range recommended by these guidelines, must explain why it chose the sanction imposed.” Therefore, this Committee should apply the guidelines and impose a penalty of a minimum two-year suspension and 25% of his masterpoints (but may increase the penalty up to expulsion pursuant to CDR 7.2.6).

XXI. PASSELL/COMPTON REPLY PRESENTED VERBATIM

 

Reply Brief of Passell

Comes now Charged Party, Mike Passell, (“Passell”) ACBL # J622382 and files this Reply Brief asking for elimination or reduction of all charges.

 

Argument

Management’s Brief (“Brief”) imputes intent to Passell without evidence. The Brief states, “The evidence received by the ACBL Recorder’s Office suggested that Passell had deliberately moved two cards contained in board five of a Swiss match…” (Brief, p.1) This assertion is not supported either by eyewitness testimony, facts in the Recorder Form, or the Hearing Transcript (“Transcript” or “Tr.”). Under the CDR, there can be no ethical violation without conscious perpetration. (CDR definition of Ethical Violation requiring “conscious perpetration”) Passell accidentally moved two cards but he never looked at the cards he moved; therefore, there is no conscious perpetration and no ethical violation. (Tr. p. 6)Errors in Management BriefIn the Summary of EOC Evidence Presented section of its Brief, Management states three times that Passell moved the cards “out of view” of his partner and opponents. (Brief, p. 3) Management is intentionally placing Passell in a false light. Later, in the Brief’s Undisputed Facts Section, Management makes an incorrect statement claiming, “According to Passell’s testimony, he counted the cards under the table and out of sight of all three of the other players.” (Brief, p. 6, without citation to record or Transcript).Further, Management incorrectly states, “He claimed he later ‘counted the cards while everyone was at the table, but without anyone’s knowledge that he was counting the cards.’” These two quotes by Management are blatant unsupported statements. On four occasions, Passell discussed counting the cards, never stating anywhere that he counted the cards “out of view.” In fact, Passell clearly states that he doesn’t remember whether he counted the cards in his lap or on the table. (pgs. 8, 9, 9, 15)

 

Additional Errors in the Undisputed Facts Section of Management’s Brief

In its Undisputed Facts Section, Management states, “Passell finessed the Jack of Spades and claimed down one, when it lost to the doubleton Jack.” (Brief p. 4) There is no supporting evidence that Passell claimed and Passell actually guessed the ♠J to go down only one. Not only is this a misstatement of the record, not supported by the transcript or the record, but the opposite is in fact true. Passell finessed the jack of spades successfully for down one. If he had lost to the ♠J, the opponents could beat him four doubled vulnerable undertricks for minus 1100. (Appeal Brief of Passell, Exhibit #3) Additionally, Management’s Brief asserts the play is undisputed quoting Witness Terry McHenry as saying, “Four hearts would have failed given the way the cards were at our table.” (Brief p. 8) Implying that 4♥ was cold on the original cards. But 4♥ would have failed on the original lay of the cards as well. (Appeal Brief of Passell, Exhibit #3).Management also states that metal boards were used. (Brief p. 7) A random sample board was presented at the EOC Hearing, however, Witness Gen Geiger admits “It’s not the exact board…” (Brief, p. 5)Management cites Presenter Christina Van Leeuwen (“Van Leeuwen”) discussing the metal board as testimony:“Two cards that switched places changing drastically the composition of a hand between when it was played at the first table and when it was played at the second table.” (Brief p. 7)“You are all very familiar with the metal boards, it is very hard to get those cards into the middle of the hand, even if it’s just one.” (Brief p. 7)Van Leeuwen is required by the CDR definition of Presenter to make or assist in the impartial and neutral presentation of evidence. This is an important counterweight to the CDR prohibition against Passell being represented by an attorney in the Hearing. Van Leeuwen instead acted as a biased, partial advocate and Management then shamefully attempts to use her Presenter statements as evidence.Management also claims as undisputed that the correction of the 14-12 error did not take place in front of opponents. (Brief p. 7) Once again, this statement is unsupported by the evidence as Passell honestly states (five months after the incident) that he does not remember whether he put Board #5 on his lap or on the table. Because it was a round robin swiss match, the opponent’s moved the boards to their home table, so Passell was never left alone with the boards. Additionally, Witness L. Darter & Witness M. Darter both testified that they saw Passell handling the boards, but did not say anything. (Tr. pgs. 3, 4). The Witnesses also claim they saw nothing yet simultaneously claim Passell intentionally switched the ♠J for a small diamond from East to West’s hands. To expound, Witness Marvin Darter (“M. Darter”) claims there is no way Passell counted the cards because M. Darter did not see Passell count the cards. Then, M. Darter next claims that Passell moved the Jack of Spades even though he did not see Passell move the card.Management states that the auction at the other table is undisputed. (Brief p. 8) However, the auction at the other table was not affected by the fouled board. Witness Terry McHenry (“T. McHenry”), who defended 3♦ at the other table, claims that he would have jumped to 4♥ if the ♠J was not in Rodwell’s hand because Rodwell would not have doubled 2♦. Even without the ♠J, holding ♠Axx ♥xx ♦QJ10x ♣Axxx, Rodwell would still double the 2♦ Michaels cue-bid and the auction would have remained the same at T. McHenry’s table. Further, T. McHenry’s testimony is undermined by his actual table decision to not even bid 3♥, but meekly defend 3♦. In reality, the 1♦ precision opener with 7HCP chosen at the other table (instead of a 3♦ preempt) – not the relocation of the ♠J – is what caused the bidding to differ dramatically at the two tables.

 

Error’s in Management’s Sufficient Evidence Section

Management claims that there is sufficient evidence to conclude that a card never fell out of the board.(Brief p. 10) Management cites testimony of the opposing team, but no testimony by the District Recorder, the DIC, the director, Passell, or Passell’s teammates. Management states, “Given the style of the boards, and the cards themselves, it is much more likely that Mr. Passell removed the Jack of Spades intentionallyin order to change the hand.” (Brief p. 10) Management is speculating about thick cards and metal boards. There was no eyewitness or video to contradict Passell’s testimony that a card fell out of the board and the metal board presented at the EOC Hearing was not the actual board played with at the table. The same witness from the other table who mistakenly claims Passell misguessed the ♠J now shows up with a different metal board claiming that cards do not fall out of metal boards. Furthermore, Management speculates wildly in its Brief stating:Especially when combined with old cards, the cards become thicker and difficult to get back into the board. In fact, they become so difficult to get out of the board that it is often quite frustrating. (Brief p. 10)Not all metal boards are tight, and not all cards are old and thick. In particular, the Management mentions old cards. No mention of the type of cards is made in the record. Plastic cards, as well as paper cards, fall out of all types of boards. Furthermore, a player often returns his hand to the board while the top one or two cards remain with their edge sticking out. Without a video or the actual board, there is no supporting evidence for the Management to conclude “that a card never fell out of the board.” (Brief p. 10).Management states “Passell’s contention that he put this one card back in any one of four pockets, without looking at the card is not believable or reasonable.” (Brief. p. 11) There is no evidence to support this statement. There was no expert witness, no video nor an eyewitness to contradict Jim Miller’s testimony recounting Passell’s statement that Passell put the card in the slot nearest to where it fell (Tr. p. 6).Management continues, “The only logical conclusion is that Passell already knew which card it was.”(Brief p. 11) Again, there is no evidence or logical sequence of events which would lead to Management’s conclusion. A more logical conclusion is that Passell just replaced the card in the slot nearest to where it fell. (Tr. p 6)Management states:“Passell admitted that he counted the cards under the table while simultaneously hiding this fact from this opponents. Passell claims he counted the cards while the match had moved to another board. He certainly didn’t ask his opponents to wait while he secretly counted the cards. Therefore, if one believes he did this, the only logical conclusion is that he counted the cards on the subject hand while playing another hand. One hand was occupied with the current hand while the other hand was busy counting the board. Thus, he would have to remove the cards from the board with only one hand. This sounds simple enough, but a simple experiment reveals the difficulty. The cards cannot be removed from a tight, metal board unless the board is anchored. No matter which is the dominant hand, a player, he will usually anchor the board with one hand, while removing the cards with the other hand. But in this case, one hand was occupied with his hand from the new board.” (Brief p. 11)Again, there is no evidence in the Transcript to support the above statement. The board #5 presented at the EOC hearing was not the actual board. (Tr. p. 5) Passell did not admit he counted the cards under the table. (Tr, pgs. 8, 9, 9, 15) Rather, Passell counted the cards at the end of the match – before the round robin boards were moved by his opponents – when there were no boards left to play. (Tr. p. 8, 9) There is no evidence in the Transcript or record of this apparent “experiment” conducted by Management. Only with the true Board #5 and both parties present could there be a relevant experiment. Management attempts to present Passell’s state of mind, claiming that “Passell’s suggested version of the facts are neither supported by his behavior at the table, [or] after the results were compared…” (Brief p. 11) Specially, the Management asks, “Does he ask them [teammates] about the board?” And further, “Instead, his attitude is haughty and arrogant.” (Brief p. 12) Passell testified, “I did not say, “So what you won two IMPs anyway? I said, There was a card missing and it really didn’t affect the IMP result.” (Tr. p. 7) Passell’s behavior was consistent with a player who knew the fouled board did not cause a Victory Point difference and therefore no harm, no foul. Passell testified:I even checked the Victory Point scale, it wouldn’t have made one Victory Point difference.…… I certainly would’ve gone to the Director if it had affected the match in that way and I was more than willing to go with them. (Tr. p. 7) Management states, “After rejecting Passell’s creative but implausible story, the EOC must have come to the logical conclusion that he intended to change the board. That is contained in their “Finding of facts.” (Brief p. 13) Again, there is no evidence that the EOC concluded that he intended to change the board.There is no such statement of Passell’s intention in the Findings of Fact (Disciplinary Hearing Report p. 2) In fact, in an email from the EOC Chairman (EOC Member), s/he states, “the committee thought the moving of the cards, even without knowledge of what cards they were…” (Appeal Brief of Passell, Ex. #6) Passell did not consciously perpetrate the movement of cards, therefore there is no evidence of an Ethical Violation.Finally, Management states,“He [Passell] knew that the Jack of Spades was on the top of the East hand, because he claimed after losing his finesse to the Jack during the play. He pulled the Jack of Spades out of the East hand and swapped it with a random card from the West hand. This is consistent with the testimony of his opponents, who testified that they noticed him playing with the boards during their match.”(Brief p. 13)First, Passell did not misguess the ♠J (Appeal Brief of Passell, Exhibit #3). Second, there is no testimony that Passell claimed. Third, there is no testimony that East failed to shuffle the cards before returning them to Board #5. Fourth, even if Passell did claim, who knows where East placed their remaining cards in relation to the ♠J. The fact that Passell’s opponents noticed him playing with the boards neither justifies nor supports the imaginary facts set out above by Management.

 

Technical Issues

Passell did not Pre-arrange a Deal as Charged: He Inadvertently Fouled a BoardA player cannot pre-arrange a deal he has already played. Fouling a board is not pre-arranging a deal. An unethical action unique or unspecified under the CDR is why CDR 3.20 “Cheating and other similar ethical violations” was approved and is why the first sentence of the second paragraph of the introduction to Appendix B ACBL Disciplinary Sanction Guidelines reads:A committee may find that there has been a violation of the CDR for which there is no sanction guideline cited in this Appendix. In such cases, the committee is free to impose on a guilty defendant whatever punishment it deems is appropriate from options described in CDR Section 4.If there had been evidence that Passell knew that he was intentionally fouling a board, which there was not, then EOC could have found that Passell intentionally fouled the board and punished him in accordance with E18. Failing to find a guideline for inadvertently fouling a board, EOC could then have constructed its own sanction from those in CDR Section 4 since there was not a specific guideline.EOC could perhaps be excused as Management was insistent about Passell's offense being pre-arranging a deal and because no one informed the committee of its option to "fashion its own" sanction. The EOC’s Finding of Facts supports that Passell fouled a board but did not see the cards he moved. (EOC Disciplinary Hearing Report)  Appendix B – ACBL Disciplinary Sanction Guidelines Provides in the second paragraph: Part A of these guidelines is intended to apply to the typical case involving a single incident and a defendant who has no previous disciplinary record. If this is not the case, the committee must consider Part B or these of these guidelines before deciding on an appropriate discipline. [bold in original]Accordingly, as a single incident defendant with no previous disciplinary record, even if Passell had been found guilty of the conscious perpetration of fouling a board, Passell should have been sentenced under other guidelines with lesser consequences than 13 months probation and forfeiture of 18,000 Masterpoints. However, no conviction for consciously perpetrating the fouling of a board is possible given the undisputed evidence in the record showing that Passell did not know what card he moved. (Brief, p 5.)Combined with the statement of EOC Chairman (EOC Member) by August 16 email that ……. the majority of the committee thought that moving the cards, even without knowledge of what cards they were, constituted pre-arranging the hand. (Appeal Brief of Passell, Exhibit #6) Passell should not have been found guilty of pre-arranging a hand when he accidentally fouled a board – without looking at a card – due to the lack of conscious perpetration. Evidently, the EOC was not informed that there is no specific guideline for fouling a board. Management has given the Executive Committee, the charged person and the EOC misinformation regarding “pre-arranging” a hand that has caused damage to Passell.

 

Management Did Not Follow the CDR

Management argues that EOC was required to indicate a reason for any deviation from the Recommended Guidelines citing Appendix B of the CDR (Brief p. 2) Therefore, Management argues for a more severe penalty. In this argument, Management misstates the CDR and tries to blame EOC’s failure to give a reason for deviation on EOC. However, as stated clearly by CDR 5.2.13, it is Management’s mandatory responsibility to notify the EOC Chair of the deviation so that the Chair reconvenes the EOC on the matter of discipline. CDR 5.2.13 provides as follows:When Management receives a hearing report in which the committee has imposed a discipline that contravenes or is inconsistent with the CDR, ACBL Management shall notify the committee chairperson in writing. The committee shall then reconvene on the matter of imposition of discipline.Management’s argument for an enhanced sentence when Management itself failed to request that the EOC Chairman reconvene the committee as Management is mandated to so do by CDR is the “Jiggery-Pokery” so hated by U.S. Supreme Court Justice Antonin Scalia. As already argued in Passell’s original Brief, Management has failed to follow CDR 1.5 and has erred by having the Executive Committee charge Passell before the EOC. Realizing this error, there is now the following motion for amendment of CDR 1.5 on the Denver Agenda:Motion 153-03 CDR 1.5.2 ACBL Management may present a summary of their disciplinary case to the executive committee of the ACBL Board prior to bringing any charges. In such cases, if charges are filed, the charging party will be the ACBL Board Directors.

 

A Recorder Form is Not a Complaint as Defined Under the CDR

Management bases its complaint upon a Recorder Form and a letter written by Witness Gen Geiger to Howard Weinstein. A recorder form is not a complaint. A complaint is defined in the CDR and the Recorder Regulations as follows:A written accusation by an ACBL member, a non-member playing in an ACBL sanctioned event, ACBL management or a Unit or District alleging conduct in violation of CDR 3 that requests that charges be made to the appropriate disciplinary body.A player memo is defined as follows:A written document informing the Recorder about an incident. This is not a complaint but may be used as the basis for a complaint.The recorder process is used so that someone may report troubling issues for evaluation to the recorder, who has no disciplinary authority – i.e. report an issue without having to make a Complaint which requests charges to a disciplinary body. Thus, a complaint must request charge to a disciplinary body.

 

Conclusion

Management imputes intent to Passell without any evidence he had such intent. There is no evidence to support many of the “undisputed facts” stated by Management in its Brief. In fact, the Management’s Brief – from the Summary of Evidence, to the Undisputed Facts to the Sufficient Evidence section – is supposition of what might have happened without eyewitness or supporting testimony from the EOC Hearing. Passell did not pre-arrange a deal, but rather inadvertently, accidentally, fouled a board. No ethical violation is possible without “Conscious Perpetration” (see CDR definition of Ethical Violation).Perpetration means intent to break the rule or law, not merely the act of moving cards. A&C has the opportunity to stop the bleeding by finding that there is no evidence that Passell committed an ethical violation without evidence of what cards were moved. In this case, the TD committed an error by never investigating the fouled board. In fact, the DIC did not think enough of this matter to investigate the Recorder Form during the remaining three and a half days of the tournament (as required by League Recorder Regulations, in the absence of an onsite District Recorder). Management waited more than a week and still did not consult with the TD, the DIC, or the District Recorder. As a direct result of this conduct by Management, the Executive Committee was misinformed by attorney Sam Whitten as to what occurred at the table, as to the necessity of bringing charges, and as to the Executive Committee’s authority to bring charges to what disciplinary body.Subsequently, the Executive Committee incorrectly sent charges to the EOC instead of the ACBL Disciplinary Committee. (CDR 1.5 and 1.9) Management next compounded the wrong body hearing the charge by charging the wrong violation which caused EOC to get lost and sentence Passell as if he were convicted of a more serious charge of pre-arranging a hand (E-13) while EOC stated in its Disciplinary Hearing Report that Passell fouled a board. EOC acted inconsistently imposing 13 months of probation, but stripping Passell of 25% of his Masterpoints.The CDR is a contract between Management and each member. When Management fails to follow its own rules and procedures; Management is not only breaching its contract with Passell, Management is breaching its contract with every Member of the League. Each Member should be assured that the CDR are adhered to carefully. In the days to come, the CDR and all ACBL Rules and Procedures are going to be truly tested. It is imperative at this crucial time that each Member be confident that justice and fairness is being achieved. A Member’s confidence in the ACBL leadership is paramount to the ACBL’s continued success.We respectfully request the A&C review the evidence and determine there is no evidence that Passell fouled a board with conscious perpetration at the table in front of the opponents. Secondarily, the CDR’s have been irreparably breached by Management.Date: November 10, 2015

 

639 Comments
Getting Comments... loading...
.

Bottom Home Top