Stung

by Gary Stephen Ross

  The girls from St. Joseph’s filled the air gloriously with “Ave Maria.” Many people in the church were crying, and Brian found tears washing his own cheeks. What were the last words his mother had said to him? He’d not realized they would be her last, of course, and they’d slipped his mind. It seemed vital to remember them. He racked his memory but couldn’t recall. The words that remained were those she’d uttered the morning after her operation. Surgery had devastated her; she was barely able to open her eyes and move her lips in greeting. He took her hand and felt a delicate, urgent pressure. She was saying something; he leaned close. “Brian,” she whispered, “make sure you father gets his supper.” By freezing the final $1.42-million before it left Toronto, the bank had served the first point in a game of legal ping-pong that would last years and occupy a dozen law firms in Canada and the U.S. The bank and the casino both took the position that the money Molony gambled away was rightfully theirs. In its original injunction, the bank argued that Caesars had known Molony was gambling at a frequency, and in amounts, to create suspicion; had an obligation to inquire into his background and the source of his funds; and had the means, through the Caesars office in Toronto, to make such inquiries. The bank argued that the casino either knew Molony was employed by the CIBC, or else chose to remain wilfully blind to his employment and the source of his funds.

  The casino returned serve: nobody at Caesars had any reason to believe Molony was employed by a bank or was acting in fraud, or that the money credited to California Clearing Corporation was anything other than the valid deposit of a casino patron. If the CIBC did indeed sustain a loss, the casino went on, it was brought about by the bank’s own negligent failure to check out Molony properly before putting him in a position of trust, to establish procedures that would have tripped him up, and to institute an audit that would have revealed the fraud.

  Soon after the arrest, the two drafts totalling $1.42-million were returned by Irving Trust in New York to the Bank of Montreal. The drafts were examined by representatives of the CIBC, who determined — surprise! — that the personnel who had signed them had indeed been authorized to do so. Pending settlement of the question of whom the money belonged to, the Bank of Montreal argued that it ought to retain possession. The CIBC agreed to honour the two drafts by issuing B of M a new draft for $1.42-million. Hence, said the casino, any loss suffered by the CIBC was the result not of anything Caesars had done but of its own decision to reimburse the Bank of Montreal.

  Give the first point to the casino.

  The bank retained service, however, and was just getting warmed up. Letters, orders, motions and supplemental motions, writs and amended writs, affidavits, subpoenas, and statements of claim bounced back and forth. Employees of banks and casinos were examined for discovery. Eventually Mr. Justice Archibald Craig of the Supreme Court of Ontario ruled that the CIBC’s voluntary settlement with the Bank of Montreal was not a bar to its claim against Caesars, and that money paid under a mistake of fact may be recovered no matter how careless the payer may have been. Mr. Justice Craig found it “rather incredible” that a twenty-six-year-old could draw markers for more than $11-million without exciting suspicion. He concluded that Caesars “knew Molony was using Colizzi’s name to effect transfers into the Bank of Montreal. In this way, both the source and recipient of funds would be recorded in Toronto as being other than the true parties. This kind of arrangement invites suspicion of fraud.”

  Second point to the bank.

  Meanwhile, more headaches were looming for Caesars in the person of Thomas O’Brien, a red-cheeked, curly-haired lawyer in Morris County, New Jersey. O’Brien had voted against casino gambling in the 1974 referendum and again in 1976. When New Jersey’s attorney general, Irwin Kimmelman, offered him the job as head of the Division of Gaming Enforcement, he was surprised. He had no particular expertise in casino gambling but was stimulated by the challenge of regulating an industry in which subtle social and moral questions had to be weighed against the economic benefits New Jersey was enjoying through its 8 per cent tax on gross gaming profits. At the start of 1983 O’Brien moved into the DGE director’s office at the Hughes Justice Complex in Trenton — perhaps the most unappealing state capital in the United States.

  A few weeks into the job, O’Brien got a call from a young reporter on The Philadelphia Inquirer. H. G. Bissinger, whose coverage of the Molony case helped him win a Nieman Fellowship at Harvard, asked about the status of the DGE investigation. O’Brien recalled reading about Molony and feeling that the case exposed many of the pitfalls of casino gambling. But the file, he told Bissinger, was inactive. Having followed the Canadian proceedings with care, Bissinger couldn’t understand this lack of interest. Didn’t the DGE find it strange that Caesars would fly people to Toronto to get a bookmaker to sign over stolen money? That it would help Molony funnel money through a dummy company? That it would claim to know nothing about him when casinos routinely check out high rollers?

  O’Brien happened to be intrigued by compulsive gambling; his law firm had represented a number of bonding companies, and he had seen other instances in which highly regarded employees had embezzled funds to feed a gambling addiction. His own curiosity and Bissinger’s tenacity prompted a full-fledged investigation. O’Brien discovered that, in the wake of the arrest, the DGE had merely reviewed Caesars’ cash and credit procedures in dealing with Molony. The question at the time was not whether the casino had been at fault but whether the DGE ought to move against Molony. Clearly the case merited renewed scrutiny. O’Brien assigned the file to a deputy attorney general, Stephen Schrier, and the DGE’s top investigator, Richard Handzo, telling them he wanted a thorough investigation. Talk to everybody, use whatever legal muscle you need, work with the Canadian authorities, fly up and see Molony.

  Caesars, already embroiled in the Ontario Supreme Court litigation, thus found itself doubly under siege. And the Division of Gaming Enforcement was a more dangerous opponent than the CIBC. The bank merely wanted the frozen $1.42-million. The DGE made recommendations to the Casino Control Commission, and the commission had the power to levy fines, strip employee licences, even revoke the casino’s operating permit. Brian Molony, who had seemed such a splendid gift horse, had turned into a pain in the neck.

  Molony pleaded guilty to a charge of fraud over $200 the same day police found the body of Paul Volpe in the trunk of a car parked at Pearson International. To Dr. Molony’s relief, the murder pushed his son’s plea off the front page. Molony was eager to be sentenced — anything would be better than not knowing — but the next open date was three months off. The wait was agonizing. Then, as the day approached, Molony learned that Robert Custer would be unavailable. He urged Greenspan to go ahead without Custer, but Greenspan considered the testimony of the Washington psychiatrist indispensable. Dr. Molony had cancelled all his operations. Brian had to inform him, and a dozen other people who’d reorganized their schedules, that the date had been put back.

  The software company had begun marketing its program abroad, and Molony had been put in charge of international sales — an ironic job for someone whose bail conditions prohibited him from travelling more than twenty-five miles from Toronto. Commissions had doubled his income, but Brenda remained anxious about finances. Just before the sentencing Dr. Molony had told Greenspan he’d look after legal fees. Greenspan turned him down: “Brian told me he’s good for it.” Brenda was also anxious about Brian’s fate, of course, but was prepared for the worst. The night before he was to appear in court they talked about their future.

  “I may not be dating in the next while, but that doesn’t mean I expect you to sit home every night.”

  “I think you may get ten years and serve all of it, because of the power of the bank,” she replied. “I’m prepared to wait.”

  Greenspan arranged things at York County Court so that Brian would appear before Judge William Rogers, whom he considered tough on violent criminals but sympathetic toward white-collar offenders. Roger
s was a little man with a neat moustache and glasses who presided with a stern, slightly skeptical air, like a school principal who takes the strap out of his desk before asking how the fight began. I’m willing to listen, but this had better be good.

  Greenspan’s argument was a novel one in Canada, and he knew it would succeed only if he managed to educate the court about compulsive gambling. He rarely referred to his client without using such words as “pathological,” “uncontrollable,” “insatiable,” “sickness,” “disorder,” “illness,” and “compulsion.” If it seemed melodramatic at the outset, it seemed less so after the testimony of each witness. Greenspan first called Dr. Robert Custer. Since 1980, Custer testified, pathological gambling had been included in the Diagnostic and Statistical Manual of the American Psychiatric Association. It was also classified in the International Classification of Diseases published by the World Health Organization. He said that four states — Maryland, Connecticut, New Jersey, and New York — had funded programs for the treatment of pathological gambling. He outlined the diagnostic criteria for pathological gambling and said it was his belief that Molony, during the time he committed the frauds, had suffered from a serious disease of the mind. Molony’s compulsion, he said, was the flip side of a phobia. Just as a person with claustrophobia will do anything to avoid stepping into an elevator, the compulsive gambler will do anything to continue gambling. He testified that Molony, like other compulsive gamblers, was not after material benefit. He was seeking to alleviate psychological pain.

  Julian Taber, the psychologist from Ohio, testified that he devoted his practice to the treatment of compulsive gamblers and had dealt with some 350 of them. He agreed with the substance of Custer’s testimony and added there was no indication Molony suffered from an antisocial personality disorder. Molony experienced genuine remorse at the effects of his behaviour on others and posed no danger to society. Taber considered compulsive gambling not merely a serious mental illness but a sometimes lethal one. A number of gamblers he had seen since 1978 had committed suicide.

  Joanna Franklin outlined the origins and nature of the treatment facility at Johns Hopkins. Dr. Kilian Walsh, the Toronto psychiatrist, suggested Molony’s illness was best understood by comparing it to alcoholism. “Obviously, intelligence plays no part where the addictive process is concerned. The ability to reason in the area of the addiction is defective. In the same way that an alcoholic, against all reason, is prepared to ruin his life and the lives of those close to him to satisfy his illness, so also is the pathological gambler.” Walsh testified that Molony’s awareness of his disease had grown. “In his therapy sessions with me, he has made progress in terms of his ability to be aware of his feelings, to express and deal appropriately with them, particularly feelings that might be perceived as being unacceptable to others.”

  Greenspan called Dr. Molony, who recounted the shock of learning Brian had been arrested. “We were just stunned. We felt if anybody was to be a gambler or to embezzle, he would be the last member of the family to think of.” Dr. Molony recalled gambling episodes from Brian’s teenaged years — the theft of money while babysitting, Mrs. Molony’s discovery of the gambling at the variety store — but said that if they’d had any inkling of his problem they would have acted. They were proud of his success in the bank, and considered him the one in the family who always took control.

  Greenspan was bothered by a heavy cold and often had to interrupt himself to blow his nose. Even this seemed part of his performance. He was masterful at manipulating the mood of the court, eliciting laughter on the heels of earnest pleading, slowing the tempo during testimony he considered crucial. Even Judge Rogers seemed to succumb. “On that exhibit,” Greenspan said at one point, “I think definitely the last paragraph of page four should not be before Your Honour, at least should not be considered.”

  “I’ll fold it over,” said Peter DeJulio, the crown attorney, “as long as Your Honour promises not to peek.”

  “I might have a compulsion to do so,” said Judge Rogers.

  “I won’t take bets on it,” replied DeJulio.

  “It’s very healthy that you recognize that,” said Greenspan.

  Chuckles in the courtroom. Taken one way, Rogers’ remark indicated skepticism for the whole basis of the defence. But he seemed to be loosening up, and Greenspan could ask only that the court be open to the force of his own deeply felt conviction. There was no evidence to suggest Molony had ever enjoyed a penny from his misdeeds. Look at him — a badly dressed man who drove a jalopy, tipped meagrely, and never even tried on the $10,850 Rolex the casino had given him. His crime had been nonviolent. He had aided with the fraud investigation, saving time, and waived a preliminary hearing and pleaded guilty, saving money. Like a lawyer in a movie, Greenspan opened two manila envelopes and spilled the contents on the table. Enclosed was $2,096 U.S., $185 Canadian, and two casino chips. Molony had found the money in soiled clothes.

  Greenspan argued that the casino bore some responsibility. Its agents had whisked Molony to and from Toronto; they’d offered him all manner of enticements; they’d helped facilitate the transfer of funds across the border. Molony, meanwhile, was rehabilitating himself. For nearly two years he’d been active in a support group. He had fulltime work and strong family backing. His incarceration would not deter other compulsive gamblers, Greenspan argued, because they, too, fail to recognize their illness. It began to seem that the greatest injustice would be to deprive Brian Molony of the opportunity to alert others to the perils of compulsive gambling. Here was the chance to blend the punitive, deterrent, and social possibilities of the law. Greenspan suggested one year in prison, three years’ probation, and 3,000 hours of community service.

  Peter DeJulio was brief in his summation. He had told Greenspan he would ask for a prison term of four to six years — under the Criminal Code, the maximum penalty for theft over $200 was ten — provided Greenspan did indeed call evidence establishing Molony’s gross addiction to gambling. If Molony got less than four years, said DeJulio, he would consider recommending an appeal. Greenspan had for several years edited the sentencing section of Criminal Law Quarterly. He considered himself an expert on sentencing and had told Molony he thought there was a chance they’d get a year or two. Nothing had happened during the presentence arguments to diminish his optimism.

  After the carefully orchestrated, almost leisurely pace of the previous day and a half, Judge Rogers’ pronouncement was sudden and swift. “The court recognizes the validity of a disease of impulse control,” he told Molony, who stood uneasily before the bench. The magnitude of the crime, however, and the position of trust could not be discounted. Loss of personal freedom remained a very real deterrent. “The sentence of this court is six years in the penitentiary.”

  Spectators were stunned. Molony wobbled as he was handcuffed and hustled off. In the holding area a student from Greenspan’s office was able to speak to him before he was shipped to the Don Jail. She told him she was terribly disappointed and asked if there was anything he wanted passed along to Greenspan. It seemed to Molony somehow important to his own well-being that he cheer up this sad-faced woman.

  “Just ask him one thing. Can we get the Rolex back?”

  Upstairs, Greenspan stood in the glare of television lights and answered reporters’ questions. He blew his nose and rubbed his eyes and lit cigarettes in such a way that his tears went largely unnoticed. They did not go unnoticed by Walt Devlin.

  Dr. Molony, surrounded by family and media representatives, was asked his reaction. He didn’t catch the reporter’s question and had to cup his ear as it was repeated. “I don’t agree with the interpretation,” he said with a ravaged smile, “but surely you must abide by the law of the land. I believe in the law.”

  In the twenty-three months between the arrest and the sentencing, Molony had been viewed as many things. A cynical thief, manipulating colleagues to execute his schemes. A naive idealist, believing in the imminence of the impossible. A cla
ssic addict, as hooked on gambling as any junkie on heroin. A fascinating personality, in which intellect countermanded the imperatives of emotion. A shortsighted fool, for not having squirrelled money away.

  The Don Jail is an ancient fortress of mournful sounds and foul odours, a gruesome place. The three-foot-thick stone walls in the old section of the jail exude despair. Each steel bunk is covered with a thin, soiled mattress. Two bunks per cell, plus a third mattress on the floor, fourteen cells per range, which means more than three dozen men spend twenty-four hours a day in uncomfortable proximity. Most of the inmates Molony was among were very young. Some had spent a year waiting on appeal, waiting for processing, waiting, waiting in an air of frustrated, simmering violence. Many of the guards were themselves intimidated and looked the other way during any dispute.

  Waiting to be processed out, Molony had to adapt to a new perception. Fellow prisoners considered him a hero. Not only had he put up numbers that gave him a place in criminal history, he had done it at the expense of that most symbolic repository of establishment values. Guards called him “Big Shooter.” Inmates wanted to talk to him. How had he pulled it off? He was questioned about the inside workings of the bank — security systems, cash procedures, the handling of negotiable securities. He gave humorous answers or else said he didn’t know much about it, having worked on the credit side. Because of his high profile he had reason to fear; he also had to contend with people who believed he’d put money away. He used his wit deftly and gave every impression of not having grasped the enormity of what he’d done. Ten million dollars. To the others it was the ultimate score, drugs and trips and cars and women; to Molony it seemed no more than a number.