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Missing the Point

You can imagine my surprise yesterday when this ten-day-old post suddenly lit up with new comments. They read like typical troll comments, but they were from lawyers. Local lawyers, in fact, and ones who seem to have quite a bit of experience. I believe I have multiple mutual friends with at least one of them, though I doubt he realizes that. I have no clue what possessed all of them to comment at once.

Like typical troll comments, they made ad hominem attacks. One writer accused me of presuming my clients guilty, another accused me of going off “half-cocked” without knowing my facts, and yet another seems to think I merely hold myself out as someone who practices criminal defense and accused me of throwing gossip into the potential jury pool. They asked condescending (and obvious) questions, like whether I’d read the DR (police report) and if I was joking by “speculating based on facts presented by the news media.” One commenter even seemed to suggest the criminal defense bar wasn’t talking about this. That’s bizarre, as I haven’t made it from a metal detector to a courtroom in Maricopa County Superior Court for the past few weeks without overhearing some attorney mention it.

The comments missed the point of the post entirely. They read it as commentary about David DeCosta’s guilt rather than commentary about a hypothetical situation I find fascinating. They must have missed it when I said that he “apparently” tried to sneak in drugs, that “my guess” is that the client just happened to get two lawyers who gave in to pressure, that “my hypothetical is far-fetched, to say the least,” and that “I’m sure I’ll never know” how much of a role the client played in what happened with those lawyers.

The second comment from Pamela Nicholson, a Phoenix lawyer with ton of experience and a good reputation, is the most interesting. She insisted that “this is not a ‘fascinating’ exchange among defense lawyers . . . this is a very serious discussion about what a criminal defense lawyer does, and does not, do.” It may be that kind of discussion now, but that has nothing to do with the original post.

If David DeCosta gets acquitted or the case gets dismissed, I’ll probably write about it. It’ll have no bearing on what I discussed in that previous post though. I hypothesized about what I thought was a fascinating situation. If the situation turns out to be different, my thoughts on a hypothetical relating to that situation as it appeared at the time will not have changed. Some commentators seemed to get the point and contributed something productive to the discussion.

I don’t just re-post news stories. I also don’t break news stories. I blog about things that interest me and that I think will interest my readers. My goal is always value added blogging. The blogs I read, the ones that made me start blogging, are not ones that merely recite the facts of news stories. They discuss ideas, the implications of the current events or personal and professional experiences.

I’m grateful for those troll-like comments because they made me think. As a defense lawyer and a blogger, am I really obligated to refrain from discussing the implications of the alleged facts of any criminal news story until the defendant is convicted? Would I have been wrong blogging about Bernie Madoff before he was convicted? Can I ethically blog about Allen Stanford? Will my credibility as a defense lawyer be destroyed if I put up a post on Rod Blagojevich tomorrow? The answer is obvious.

It certainly wasn’t my best post. I could have worded it better, and the same is true of my comments. However, I doubt there’s any way I could have expressed my ideas without angering those commentators. I could have filled the post with “allegedly,” “supposedly,” and “according to the news,” which I basically did, and they still would have been upset. It hit too close to home, and the tone of the comments reveals that. I imagine a police officer blogger in Chicago or Atlanta would get a similar response posting commentary related to this or this, respectively.

I am amused by the sudden, massive response I got. I hope this post gets the same response, and not just because the previous response appears to have resulted in a massive increase in my website traffic and search engine relevance. It’s interesting to see how fellow members of the criminal defense bar reacted to commentary related to one of their own. I wish they’d have discussed it in a friendlier manner, and I’ve probably succeeded in pissing off three of my colleagues, but I guess that’s the risk of publishing my thoughts: people will miss the point.

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19 Responses to "Missing the Point"

  1. Phoenix criminal attorney says:

    In your case, we lawyers must always stand for the truth we believe. Gossips and accusations are really been our enemy traveling to the truth that we must fight for. Opinions are opinions, if it is not true, don’t take them seriously, they will pull you down. In the world of Law, everything may possible but it will always find for the truth nothing but the real thing.

  2. […] he did what any good blogger does. He wrote another post about the personal attacks. To which Phoenix criminal defense lawyer John Thomas Banta, Esq. wrote […]

  3. Gideon says:

    Sorry, but I have to say that half the comments to this post are rubbish. And you know which half I mean.

    No wonder we’re such a maligned lot. Just read the self-righteous bullshit in the first few comments.

  4. Stephen says:

    I think it also raises an issue of if you really shouldn’t talk about things you read in the press. Is it totally off limits to discussion? Yes, the whole story is never contained in the few inches of newsprint but do lawyers (as opposed to the rest of the world) need to have every detail about any particular case before they can say anything at all? Lawyers should have all the facts they can scrape together when they stand before a jury but we’re not before a jury here. What we’re talking about here is reading a newspaper and discussing what’s in it.

    A lot of the dissenting comments talk about how the person should have more information before talking, why? Why can’t you just discuss the information you have? More information is good but what will add to a post that just asks “what is it about this particular client?”

  5. Jdog says:

    I dunno. I saw the posting over at SJ, and came on over.

    In summary: huh? From my distant perspective, you’re not making any conclusions about Da Costa at all, other than the pretty safe one, that having been officially accused of a serious naughtiness, he’s in some difficulties. That’s not inconsistent with him being guilty as hell, innocent as Gandhi (being dead, Gandhi, I can safely say, didn’t smuggle any drugs in).

    Is it so outlandish to suggest that lawyers have, from time to time, smuggled in drugs and other contraband to clients, and to wonder under what circumstances Da Costa might have been so tempted?

  6. Jameson Johnson says:

    Perhaps Mr. Brown is better suited to working for Maricopa County Attorney. I’ve come to expect his jaundiced point of view from MCAO. It is clear that he could use some additional time matriculating under more experienced counsel.

    Pam Nicholson once took me to task over an important issue, and I frequently credit her with changing my views on the death penalty. When a person with that much experience draws attention to your critical errors in thinking, it is wise to at least consider the criticism. I have no doubt that Nicholson would be the first to reel off a list of mentors that helped shape her into the advocate she is today.

  7. Andrew (the other one) says:

    One would think that people who went to law school and constantly discussed hypothetical situations wouldn’t act outraged when presented with a hypothetical. It appears that one would be wrong.

  8. BFrederick says:


    No need to apologize for what you have written. If you discover you were wrong in what you wrote then certainly you should correct it – but the tenor of the comments posted by some of these guys, including insults and personal attacks, does not demand a response.

    “I was not condescending: I was chastising a colleague. . . .” Really?

  9. Chris says:

    That has got to be fake.

  10. I usually don’t enter into these kinds of trollish encounters but I must come to Mr. Brown’s defense.
    I know any of the attorneys who have disparaged Mr. Brown and can say with confidence that they are only concerned with ensuring that their clients avoid responsibility for their crimes. It is refreshing to see a criminal defense attorney who understands that this is a profession that requires more than just getting favorable results for your client, or making excuses for the obviously guilty, but requires defense lawyers to take the greater good into consideration when representing criminals. Keep up the good work, Matt. There are many of us out there who appreciate your perspective and point of view.

  11. Alisha Rosato says:

    Not the brightest barristers out there, eh? No need replying, they are not listening.

  12. Chris says:

    These morons don’t get it. You aren’t held to higher standard because of you’re chosen profession.

    If that were the case jokes like “99% of lawyers give the rest a bad name.” wouldn’t get chuckles.

    You posted the latest scuttlebutt and drew conclusions in an effort to get people to think. Obviously the other commenters didn’t get the point of the exercise.

  13. Matt Brown says:

    Just to let everyone know, I now have the police reports and other materials. I have a crazy day (clients come first) and am out of town for the weekend, but I should get something new up very soon.

  14. Pamela Nicholson says:

    Young man, you have a lot to learn. Please re-read what you wrote – Mr. DeCosta “decided to sacrifice his career and reputation doing something monumentally idiotic.” This is not a hypothetical.

    It’s unfortunate that you seem to relish the attention that you got in response to your post measured by increased internet hits. All attention is not good attention.

    So you think that only those who bought into the “hypothetical” in your previous post actually got your point and contributed something productive to the discussion – a bit arrogant, don’t you think?

    I’m not angered by your comments, I’m very concerned that you have totally missed the point.

  15. Charles says:

    Quit ironic not getting a post about not getting it.

  16. Ron Tully says:

    I guess they’re still missing the point.

  17. Steve Lansing says:

    Your website calls yourself the “attorneys that ride”, perhaps it is time to put back on the training wheels.

  18. There was nothing troll-ish about our comments. If I knew you personally, I would have taken you to lunch and explained in person to you the problem with your blog post. Clearly, you still do not get it.

    If you that you can justify the posting of misinfomration by calling it a “hypothetical” you are just being silly. How about next time you post a “hypothetical” you don’t use real people’s names.

    John Banta is right. As an attorney you are held to a higher standard than the typical blogger because people presume you know what you are talking about. People will read your blog and assume you know something, and even have some inside information, because you are an attorney. Just as you have a responsibility to think before you let the words come out of your mouth in court, you need to think before you sit down at the keyboard and start typing.

    Don’t worry, though. Even if it was you accused of this wrong-doing, instead of Dave De Costa, we would be just as diligent in finding out the facts and coming to your aid. In the future, if you are ever wrongfully accused of a crime, we will be there.

    If you want to contact me personally (email is on my web site) I will provide you with the report numbers so that you can do a public records request for the police reports yourself.

  19. John Thomas Banta, Esq. says:

    If there is someone who missed a point it was you. I was not condescending: I was chastising a colleague, likewise my colleagues. A lawyer’s blog carries weight with the public because it is assumed the lawyer knows of what he speaks; you did not and your mistake was appropriately pointed out. Blatantly false statements harm you, harm the Bar in general, and, most importantly, misinform the general public, i.e., the jury pool. When you speak about a fellow lawyer speak only the truth that you know to be true. The truth is a wonderful thing – you never have to remember to whom you lied. It is obvious you did not take your schooling to heart. For that, I am saddened.

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