“There’s light at the end of the tunnel, and it may not be a train.”

That was the optimistic observation from one of Jay Cohen’s legal team after getting the news that the Supreme Court has asked the government to file a response to his petition for Cert. For those not familiar with this issue, Cert refers to Cohen’s petition to the high court for it to hear the case.

This is the first ray of light that has shined in Jay’s direction since his fight with the government commenced. The obvious interpretation is that there is a distinct possibility that his conviction by a New York Federal court on a count of conspiracy, and seven counts of violating the Interstate Wire Act of 1961, will be heard and ideally overturned by the Supreme Court.

Currently, Jay is free on bond pending Certiorari. Four S.C. justices are needed to vote in favor of Cert for the case to be put before the court.

When word of an impending decision on his petition was leaked to Jay, he understood it would be either deny or respond, “And I was packing my bags,” he said.

Given the “progress” of this case, it is easy to understand Jay’s pessimism regarding judicial decisions. However, when the news was released on several posting forums, the reaction of bettors had to be gratifying to Cohen.

Based on the posts we saw, Jay is the country’s most beloved felon. However, that might be small solace for someone facing 21 months in a federal prison and two years of supervised release.

Meanwhile, the ball is in the government’s court. It is now forced to address the issues raised by Cohen’s legal team in its petition for Cert.

In the past, the government has had the luxury of dancing around the crucial issues raised by the defense. But now with the Supreme Court involved, the intellectual and professional bar has been raised. Cohen’s two legal firms – Brafman & Ross, PC, New York and Jenner & Block, LLC, Washington – have fired their best shots at the government’s position.

One source close to the case told us, “This forces the government to answer the issues that have been raised and never addressed. They have been able to b.s. their way around them, and I wouldn’t be surprised if they have the gall to try the same ploy again.”

Now Cohen’s counsel gets a chance to file even more material, since the defense gets the last word. If the government’s response is as lame as it has been previously, our sources tell us the Supreme Court is not likely to be impressed or sympathetic.

The government deadline to file their response is April 15, unless it asks for an extension. Then the defense has 10 days to file its reply.

In the first brief, Cohen’s counsel held back some ammunition to be fired later. That is a standard strategy and necessitated by the limit of 30 pages in filing a brief.

Up to now, the government has been cut a lot of slack by the lower courts, and that is about to end, our sources tell us. “This is where merit starts kicking in regarding the issues, as you go up the legal ladder.”

More good news for Jay is the amicus brief which is being filed in support of his position by the Government of Antigua. It is most beneficial to have an amicus brief from a sovereign nation advancing his cause, said our source.

Here’s how Jay defined one of the key issues in his case:

The trial court and the appellate court declares that it was not legal to place a bet in NY despite the lack of anything in the NY criminal code or Federal criminal code prohibiting it. Both courts also went so far as to say that they believe it was a "bet" itself that was transmitted and not "information assisting." The prosecutors lied during my trial and stated that the pari-mutuel industry enjoyed an exemption from 1084 as part of the IHA. The trial judge noted my lawyer's objection but chose to just continue the trial rather instead of forcing the prosecutors to prove it to them. This is simply a lie that they came clean about during the appeal.

If you accept the 2nd circuit opinion in my case then OTB is clearly in violation of 1084. They should file an amicus brief in my case if only in support of the position that it is "information assisting in the placement of a bet" that is transmitted but they will most likely just close their eyes and hope it goes away.

So, basically the appellate and trial court short circuited the 1084 (b) defense by declaring it is illegal to place a bet in NY. They did this by allowing the term legal to be defined by more than just the criminal code and applying the NY Constitution. What is really sickening is that in the 1930's the NY Constitution was tested up to the highest court in NY and a case was thrown out because the court said that the gambling provision in the NY Constitution did not apply to betting but to bookmaking. Both the trial court and the second circuit ignored that case like it didn't exist.

It is also interesting to note that the jury was not allowed to even see 1084 (b) even after they asked for a full copy of the law. They were handed a piece of paper with 1084 (a) on it but all it said was 1084.

BuzzDaly.com