In the present case, a man was accused of exploiting gambling in a publicly accessible place. At the defendant's house, civil police found 28 people playing poker, as well as machines for receiving cards, cards, betting chips and three card tables.
The defendant's defense upheld the unusual conduct. Criminal lawyer Eduardo Samoel Fonseca, a partner at Fonseca & Melo Advogados, argued that "the mere seizure of poker tables and equipment, by itself, is not capable of attesting to the promotion of games with the aim of obtaining profit."
To reinforce the thesis, the defense made use of a mathematical opinion stressing that "the gain or loss does not depend exclusively on the luck or misfortune of each player. The game revolves around the clash of psychological skills and logical reasoning between players, common in most sports."
Judge Tânia Magalhães Moreira da Silveira rejected the complaint as she understood that, for the configuration of the criminal misdemeanor, it would be necessary to establish that it is a game in which winning and losing depend exclusively on luck.
According to her, however, several researches show that poker involves not only luck, but above all skill and the exercise of intellectual activity by the player, leaving the possibility of a participant with worse cards, therefore with less luck, to win.
In the words of the magistrate, in the current legislation, the random factor of luck is preponderant in the definition and configuration of the criminal misdemeanor; therefore, since the card game does not depend fundamentally on luck, the illegality in promoting that game will not be present.
Thus, the judge rejected the complaint for lack of just cause to the criminal prosecution, as the conduct does not have a formal typicality, and the accused did not exploit, in a publicly accessible place, gambling (article 50, paragraph 3, "a", of the Criminal Misdemeanor Law).