THE sports page the judge was reading on the streetcar to court carried a feature detailing the writer's triumphs and failures in the delicate art of betting on football games. This topic particularly interested the judge, not because of any temptation to risk a dollar or two, but because state law prohibited wagering on any contest of skill or endurance.
Accepting any such bet - indeed, possessing any of the implements associated with the enterprise - could lead to serious criminal consequences. The judge's docket for that very day included a man who had pleaded guilty to bookmaking, the crime of betting for a living.
The sentencing decision, always difficult in any case, was giving the judge particular trouble. According to the pre-sentence report and the district attorney's sentencing memorandum, the defendant had a long record of convictions, all for gambling offenses. None had put him behind bars; invariably, a money fine had been the sentence.
Believing that monetary punishment exerted no deterrent effect on the offender, the government this time was asking for ``committed time,'' three months in the house of correction. In vigorous language, the district attorney urged sending a message to the people that organized gambling would not be tolerated.
As he read more of the newspaper article, the judge realized that the author was going beyond analyzing the victory chances of the various teams. After discussing the ``spread'' - the number of points which a bettor would have to concede or receive, depending on whether he backed the favorite or the underdog - the article took the analysis into actual dollars and cents.
It not only indicated which teams to choose, but how much to risk on each game. No stockmarket adviser analyzing the relative merits of new securities issues could have given any more precise buy-sell suggestions.
Finally, as if to demonstrate the accuracy and reliability of his advice, the writer summarized his season-long betting experience, ending with a bottom-line figure indicating the profit that would have accrued to anyone wise enough to have put his money on the writer's selections.
As the judge walked from the trolley stop to the courthouse, he wondered just what the public wanted. Speaking through the legislature, the people had clearly indicated an antipathy to the kind of organized gambling that bookmakers, odds, and point spreads represent. The elected district attorney, the judge assumed, was also reflecting the vox populi when he called for incarceration.
If the people wished to proscribe certain conduct, a judge can express an official opinion only in the rare instance when the conduct can properly claim constitutional protection. Otherwise, he must apply the law as written.
Even when sentencing, where a judge can properly use discretion, he must give the prosecutor's recommendation some weight, at least to the extent of considering the need for jail.
In gaming cases, however, the difficulty springs from uncertainty as to who really speaks for the people. Against the official condemnation of gambling, here is the state's leading news organ, the so-called newspaper of record, not only making available to the public the data essential to gambling, but actually advising its readers how to bet.
If, as seems reasonable, the newspaper (and the television stations that furnish similar information) is responding to what it thinks the public wants, then is not the bookmaker merely meeting another facet of that demand?
Is it logical, or fair, for the state to encourage its own version of gambling - the state lottery - while seeking to stamp out, presumably on moral grounds, another, somewhat more rationally based, wagering activity?
As he reached for his robe, the judge was still undecided. He remembered a colleague's thought: ``Sentencing fairly is hard enough; the real challenge is sentencing so that the public, even if it disagrees with you, sees you've been fair.''
The judge hoped he could make this sentence both fair and perceived as fair. ``But,'' he thought, ``I wouldn't bet on it.''