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NEVER EVER TALK TO POLICE WITHOUT A LAWYER
Recent Terrorism Related Arrests Illustrate Need to Consult Lawyer Before Interviewing with Law Enforcement
By: Houston Criminal Lawyer John Floyd and Paralegal Billy Sinclair
This legal maxim is rooted in the very soul of every criminal defense attorney. Even if an individual is innocent, no one should ever talk to the police once the police make it clear they are investigating a crime, or a potential crime, and they feel the individual has either some involvement or knowledge about the crime. This advice is especially true when it comes to the FBI whose agents are skilled in the art of interrogation and proficient at tricking a person into making a false statement.
This FBI strategy was recently highlighted in a suspected al-Qaeda terror plot involving Najibullah Zazi, a lawful permanent resident of the United States who hails from Afghanistan. News media reports, based on official accounts or leaked accounts by the FBI, have linked Zazi and at least three other Denver-area men, along with a number of suspected or unknown individuals in New York and other cities in the United States, with an alleged al-Qaeda plot to use hydrogen peroxide bombs carried in backpacks to attack New York City’s mass transit system or other mass transit systems in this country.
(The following fact pattern is taken from FBI affidavits, which are notoriously one-sided, and news reports and may be incorrect, misleading or wrong. These men are presumed innocent and the use of these facts in this article is for illustrative purposes only.)+
Zazi and his father, Mohammed Zazi (a naturalized U.S. citizen from Afghanistan), and a New York City imam named Ahmad Wais Afzali (also a lawful permanent U.S. resident from Afghanistan) were arrested on September 19, 2009 by the FBI for allegedly making false statements to federal agents in violation of 18 U.S.C. Sec. 1001(a)(2). The “false statement” charges indicated that the FBI, and Homeland Security agents, had not yet compiled enough evidence to bring terror-related conspiracy charges under 18 U.S.C. Sec. 371 or specific acts of “international terrorism” under 18 U.S.C. Sec. 2331(1) against anyone they suspect were involved in the alleged New York City mass transit terror plot. The government has since indicted Najibullah Zazi on terrorism related charges.
The FBI affidavits used to establish probable cause for these arrests state that Najibullah Zazi flew to Pakistan in August 2008 where he reportedly (according to news reports) received bomb making instructions from an al-Qaeda operative. The FBI affidavits also said Zazi returned from Pakistan to the United States in January 2009. The affidavits do not indicate whether he remained in Pakistan from August 2008 to January 2009.
Zazi, and the Denver-based “terror cell”, had been under FBI surveillance for some time. That surveillance picked him up leaving Denver in a rental car on September 9, 2009 and traveling to a residence in Flushing, Queens where he met with a number of unnamed individuals federal authorities believe are involved in the terror plot.
According to the FBI affidavits, on September 10, 2009 New York City police detectives met with Ahmad Wais Afzali. The FBI affidavits indicate that Afzali has worked as an “informant” for the NYPD. The New York City detectives reportedly showed Afzali photographs of Zazi and others, and he informed the detectives that he recognized Zazi and several of the other men in the photographs.
The FBI affidavits state that on September 11, 2009 the agency intercepted a 20-minute telephone call from Mohammed Zazi to Afzali. That same day FBI agents also intercepted a telephone conversation between Mohammed Zazi and his son, Najibullah Zazi. During this latter conversation, Mohammed Zazi told his son that Afzali told him that he (Afzali) had been visited by the NYPD and they had been shown him photographs of Najibullah and others. Mohammed Zazi advised his son to speak with Afzali “before anything else,” according to the affidavits.
While Najibullah Zazi was talking to his father, the FBI affidavits state that the suspected terrorist received a telephone call from Afzali who reportedly stated: “I was exposed to something yesterday from law enforcement. And they came to ask me about your characters.” Afzali then allegedly asked Najibullah Zazi about his last trip to Pakistan and warned, “Listen, our phone call is being monitored.”
That same day FBI agents intercepted yet another telephone conversation between Najibullah Zazi and Afzali during which Zazi stated his rental car had been stolen and he feared he was being “watched.” The FBI affidavits state that Afzali then asked Zazi if there was any “evidence in the car” to which Zazi said no.
FBI agents quickly secured a search warrant for Zazi’s rental vehicle which was still parked in front of the Queens residence. The FBI affidavits state the agents recovered a laptop computer which contained handwritten notes regarding the handling and manufacture of explosive materials that could be used to make a bomb. News reports would later cite anonymous sources to say the handwritten notes had been written by Najibullah Zazi.
The FBI affidavits state that on September 12, 2009 Najibullah Zazi boarded a flight at the La Guardia Airport in New York and returned to Denver
On September 14, 2009 heavily armed FBI agents raided the Queens apartment and other surrounding apartments. The “terror investigation” exploded in the national news media that same day. The FBI and Justice Department officials quickly met with key members of Congress to explain the nature and the direction of the “terror investigation.”
On September 16, 2009 FBI agents interviewed Najibullah Zazi. News reports indicate he was represented by an attorney named Arthur Folsom who immediately dismissed as “rumor” reports that his client had played a major role in any terror plot. Associated Press writers Solomon Banda and Steven K. Paulson reported (September 20, 2009) that court documents filed in a Denver federal court disclosed that Zazi agreed to speak with the FBI “under an agreement where he might avoid prosecution.”
The FBI affidavits stated that during the September 16 interview Najibullah Zazi reportedly made false statements that he never seen the handwritten notes discovered on his computer and had not written them. In subsequent interviews conducted on September 17 and 18, Zazi reportedly admitted to federal agents that he had received training at an al-Qaida camp in Pakistan about weapons and explosives.
The FBI also interviewed Mohammed Zazi in Denver on September 16, 2009, according to their affidavits. This interview focused on whether anyone had called him about his son’s activities and possible difficulties with law enforcement officials. The affidavits state Mohammed Zazi falsely responded to these questions by saying he had never received or made any telephone call to anyone in New York other than with his son. He also denied knowing anyone named Afzali.
The FBI affidavits and news reports do not indicate whether Mohammed Zazi was represented by counsel when he agreed to the FBI interview on September 16.
The FBI affidavits state that on September 17, 2009 federal agents in New York interviewed Afzali. The affidavits state Afzali provided agents with a written statement in which he denied telling either Najibullah Zazi or Mohammed Zazi that he had been approached by the NYPD seeking information about Najibullah Zazi. The Afzali statement also reportedly stated the imam denied ever telling Najibullah Zazi their telephone conversation was being monitored or asking Zazi if there was any evidence in his rental car.
The FBI affidavits and news reports likewise do not indicate whether Afzali was represented by counsel when he agreed to the FBI interview on September 17.
There are a number of things about this high-profile case that immediately call into question the “right to counsel” issue. First, Najibullah Zazi agreed to speak with the FBI on September 16. It is not clear whether this “agreement” was reached between him and the FBI or whether it was an agreement negotiated by his attorney, Arthur Folsom. Second, either Zazi did not receive or did not heed the standard legal advice to “tell the truth” once the agreement to be interviewed had been reached with the FBI.
Finally, neither Mohammed Zazi nor Admad Wais Afzali should have agreed to speak with the FBI without first consulting with an attorney.
It is evident from the information in the public record and the FBI affidavits that the alleged false statements made by Najibullah Zazi can be used against him. He was represented by counsel and had reached a formal agreement to cooperate with the FBI in an effort to avoid any criminal prosecution against him. The fact that Zazi allegedly chose to lie to the FBI [and it will be presumed for the sake of argument that his statements were in fact false within the meaning of Sec. 1001(a)(2)] breached whatever “agreement” he may have had with the government.
But the issue with Mohammed Zazi and Afzali is not so clear. Neither man had a “right” to counsel prior to the FBI interviews because they had not been placed in custody. 1/ This does not mean, however, that the two men had to take part in the interviews with the FBI. The Fifth Amendment “right to silence” trumps any law enforcement objective, although this constitutional protection extends only to acts that are communicative or testimonial. 2/ Nonetheless, it is significant to point out that law enforcement officials cannot compel a person to give statements or testimony against himself in any kind of “interview” setting. 3
Thus, Zazi and Afazali could have refused the FBI’s request for an interview until they had retained the advice and services of an attorney, even though the Supreme Court has held that “right to counsel” does not attach in these kinds of law enforcement interview settings. 4/ This is why the courts have uniformly held that incriminating statements made in pre-custodial interrogation settings are admissible as evidence and may be used as a basis for probable cause to arrest because the “right to counsel” attaches only after the initiation of the adversary judicial proceedings. 5/ These decisions notwithstanding, an individual, suspect or not, is not compelled to participate in these types of law enforcement interviews.
Based on the false statements Najibullah Zazi allegedly have given to the FBI, it can reasonably be assumed that federal agents believed Mohammed Zazi and Afzali would also make false statements during their interviews with the agents. And since the federal agents apparently did not have any real, or immediately available, evidence of either a conspiracy or actual “international terrorism” activities associated with either man, the agents moved quickly to interview them so the agents could nail them under Sec. 1001(a)(2) if they made a false statement.
The right to silence/counsel issue, therefore, turns on the approach the FBI used to get the two men to acquiesce to an interview without the presence of an attorney. For example, did the federal agents lead Afzali to believe that they were talking to him as a cooperating informant and not as a “target” of a terror investigation; or did the federal agents lead Mohammed Zazi to believe he could “help” his son avoid a terror-related prosecution by cooperating with them through the interview. While “deception” alone is not a basis for having incriminating statements declared inadmissible as evidence, 6/ this issue must be decided by the extent of the deception and motives for it. 7/
The federal and state law enforcement agencies involved in this and other “terror investigations” are to be commended for their investigative diligence and proactive investigations used to prevent possible terror attacks. However, investigations such as this take many twists and turns, and often involve a law enforcement focus on a wide net of people including many who are innocent. The FBI affidavits, standing alone, indicate that Mohammed Zazi and Admad Wais Afzali were not involved in any kind of “terror plot.” While it may ultimately be established that both men lied to the FBI, those lies appear not intended to aid any terror plot Najibullah Zazi may have been linked to or any desire to thwart the investigation into the alleged plot.
The situation faced by Mohammed Zazi and Afzali when confronted by the FBI’s request for an “interview” illustrates the time-honored legal maxim: never, ever talk to the police without an attorney present. Law enforcement officials do not have an individual’s “best interests” at heart, not even those they utilize as informants. Law enforcement officials have one fundamental interest: identify a crime, locate a suspect, and persuade (or compel) that suspect to incriminate himself (or others) in the crime. This fundamental interest does not lend respect for individual constitutional safeguards. That’s why, when faced with any law enforcement request for an “interview,” an individual must firmly and consistently assert, first, his right to silence, and, second, his right to procure the assistance of counsel.
Even if you have done nothing wrong and have nothing to hide, politely tell law enforcement investigators that you would like to cooperate but will do so only after consulting with, and in the presence of, your lawyer.
SOURCES:
1/ Miranda v. Arizona, 384 U.S. 436 (1966)
2/ Schmerber v. California, 384 U.S. 757 (1966)
3/ Moran v. Burbine, 475 U.S. 412 (1986)
4/ McNeil v. Wisconsin, 501 U.S. 171 (1991)
5/ Nelson v. Fulcomer, 911 F.2d 928 (3d Cir. 1990)
6/ Frazier v. Cupp, 394 U.S. 731 (1969)
7/ Rogers v. Richmond, 365 U.S. 534 (1961); Lynumn v. Illinois, 372 U.S. 528 (1963)
http://news.yahoo.com/s/ap/20090920/ap_on_re_us/us_nyc_terror
http://codes.lp.findlaw.com/uscode/18/I/47/1001
By: Houston Criminal Defense Attorney John Floyd and Paralegal Billy Sinclair
Take the first step toward protecting your freedom by contacting us now
Testimonials
John T. Floyd Law Firm
3730 Kirby Drive # 750, Houston
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I’ve never been one to write reviews but this time I couldn’t pass up the opportunity to say something. I had some serious legal questions I needed answers to concerning Texas laws. … More Being I’m from another state, I found and reached out to Attorney John Floyd for the answers. Mr Floyd listened to to my requests and told me what he need from me and went out of his way to get me the answers. Very polite, straightforward and professional, I can’t thank him enough for all he’s done. Whatever your legal case may be, I wouldn’t hesitate to recommend Mr Floyd.
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Mr. John was very helpful and truly was the reason why my case was dismissed. Thank you so much Mr. John I truly recommend everyone in need to work with him.
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What I liked the most was that he actually returned my phone after leaving a message unlike pretty much everyone else I called prior. He listened and answered my question with the best … More advice that would benefit me the most. I was actually lost from moving to Texas from a different state we’re laws vary and he pointed me toward the right direction to get a understanding of if I need to do business with him now or after I contact a lawyer in my home state.
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John is honestly the best! The whole team is. He answered me in a timely manner and helped me when my friend was going through a situation in Houston, Texas as an inmate. He was so … More thorough, honest, and without charging me sent me so much information because I was out of the loop. He never once tried to take you for your money, he did all that he could to. help me and I can't thank him enough.
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I have used John on two occasions and found him to have full knowledge of Texas law, diligent, creative in plan, and aggressive in defense. He is the best criminal defense attorney … More in the State of Texas. No reason to look elsewhere.
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Attorney Floyd replied very timely to my inquiry and he provided practical advice. I will not hesitate to contact him in the future if I need additional legal counsel.
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Highly recommend, down to earth lawyer. Talked to me about my legal issues without being super money hungry and genuinely wanted to help me with my legal problems. 5 stars ⭐️.
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Very knowledgeable and professional. I called and left a message Friday morning and before end of business that day I received a call back.Positive
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Excellent service and a lawyer that doesn't lie. He does what he says. JW recommends him.
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One of the best services Ive used in awhile. Thank you for all the help and answers. You got my life back. Thank youPositive
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Im impressed. This guy was polite and professional and most important...he listened.
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Good experience and very good lawyer
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It was a pleasure speaking with John. He is knowledgeable and has a true desire to help the people of society. I turned to him for some guidance of a long-standing issue. He never … More rushed our conversation and went out of his way to look into the details to provide the right answer as well as assist me anyway he could. Thank you for our conversations and I wish your and your firm the best. If you need a lawyer, John Floyd is your guy!
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John represented me in court for roughly 2 years. I won't (and shouldn't) get into any serious details, but let me tell you that I couldn't have chosen anyone better. … More Seriously.Every appearance in court I felt very comfortable. The judge and DA's had a high regard for his reputation. There is a time I recall where simply his presence greatly impacted the court's interpretation of my case and persons. We were in front of the stand and the judge could not stop talking about John's prestige and past accomplishments and how that took in relation to my case. I kept silent in front of the judge, but I observed then that John's popularity and reputation within the court had already given me a better looking rapport with the judge. Let me tell you, I never had more confidence then, knowing that the judge held him in such high regard.This is not to mention how personable John is. I'll be honest that during the stress of court, sharing a laugh with your lawyer helps a lot. This may sound a lot, but I really appreciated the relationship we had then. This is also not to mention that he was able to deal very well with any DA that rotated over the years. Seriously, John was great, prompt with information and very hands on with my case. I had great peace those 2 years until everything wrapped up.If you're looking for a lawyer, I highly, HIGHLY recommend the John T. Floyd Law Firm. He IS nationally renowned, you know. He'll get the job done to the utmost confidence. He's very experienced and has a great record to boot. I am glad to have had him represent me in court and trust me that I never thought I'd ever say that (and whoever does?). We explored every avenue of victory together and I personally enjoyed the experience, despite the seriousness of the accusation.If you have a case that needs to be represented at the highest levels, choose John T. Floyd. He's a good man and very good at what he does. Him and his team has the experience you need to make the best decisions and options to get the best outcome for your case. We got the best result I could possibly ask for, thank God.Seriously. Hire John. He knows what he's doing.Seriously.
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One of the few honest lawyers I have ever talked to. His complimentary consultation was knowledgeable and thorough. He knew exactly what the issue was and how to handle it. His candid … More appraisal of the situation and how to proceed saved me thousands of dollars in legal fees. If you have a case requiring expertise in John's area of practice, look no further. Hire this man!
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He gave me one of the most honest answers I have received in a very long time about any issue I was having with anything. Legal or not legal. I highly recommend giving him a call and … More will be referring him to friends and family if they have any issues in the future.Positive
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He took time out of his day to answer my legal questions and didn’t even charge me. I would definitely recommend him to you.
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Gave free consultation on getting gun rights back. He truly cares about gun rights and getting you the help you deserve. 100% worth a callPositive
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Very professional, great quality work, and very friendly and helpful. Overall, their service is phenomenal. I recommend Mr. Floyd to anyone.
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Mr. Floyd took the time to explain his experience with the law to me in layman's terms. Definitely give him a call.Positive
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He was honest , knowledgeable , and professional about what we talked about. Most lawyers are just about the money , but not john.Positive
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He was very truthful and honest with us very great man I would recommend him and we would use him again
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Very professional honest and works hard currently working my husband’s appeal I pray he does his best workPositive
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I contacted John T. Floyd Law firm and I was very satisfied with service extremely helpful and friendly thank you Mr. FloydPositive
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This law frim was informative,great response time ,and the attorney called back not some secretary or legal assistant thank u guys for all your help wish it was more like youPositive … More
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I would highly recommend Mr Floyd. He was very helpful and knowledge with a legal question I had.Positive
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He explained my case better then any other lawyerPositive
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Very informative
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Had the pleasure speaking with John Floyd on a personal matter, he was very responsive, nothing but exceptional, and he really cares about you with sincerity and most importantly knows … More what is he talking about! No games or bs, his approach to my situation even though I knew it was probably way smaller then what he normally takes on, he was extremely helpful and didn't care about the size of the matter like other attorneys do. He really looked out for my best interests. You can tell he has decades of experience doing what he does just by chatting with him. I would highly recommend him.
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Words can’t describe how grateful I am for working with John, he went above and beyond my expectation. I was wrongly accused and hired many lawyers before hiring John Floyd but they … More all disappointed me, I had lost hope until a friend of mine referred me to John. From the start he had my best interest in mind and gave helpful advice, he explained the process and guided me. He put more work and time than all my previous lawyers that cost me thousands of dollars. He was constantly communicating with court and defended me more than all lawyer i had hired before him. Don’t waste your time and money like I did, believe me when I say I hired countless lawyers before him and no one came close to John. I’m forever thankful for him for fighting for my innocence and getting my case dismissed. Thank you so much🙏🏼🙏🏼
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I called Mr Floyd and left a message, with in the hour I received a call back with much more information then I could have ever expected. Mr Floyd was very informative on every question … More I had for him. He seemed like he cared, instead of like most attorneys that you talk to that are just out for a quick buck. If you want someone that is going to shoot strait with you, and has your best interest in hand, this is you guy. This was the best experience that I have ever had with an lawyer.
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I can state with confidence that Mr. Floyd and his team are the most competent and professional lawyers one can hope for. My case was quite complex and I admit that as a law student … More I was not the most patient client. Mr. Floyd did a phenomenal job of managing the bench, prosecution and myself! The result was above expectation, and I will never hesitate to recommend this firm regardless of the caliber of the case at issue.
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It was a pleasure working with Mr. Floyd. I contacted him regarding a legal matter and he was extremely knowledgeable about the law, and responded in a timely manner. I appreciated … More the fact I did not feel rushed, and he made sure he thoroughly answered all questions I had. I would highly recommend him!Positive
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Spoke with John Floyd about a 45 year old criminal case I was involved in. I had very little information about the case and John helped me search what records were available and gave … More me guidance to find more information. He was very professional and took his time helping me. I may need to hire a lawyer on this case and Mr. Floyd will be the man.Thanks John.
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Very professional and straight forward. He's not going to waste your time or money. Very knowledgeable in a large range of possible matters one could face living in these days … More and times. If ever you need legal assistance, this is who I would suggest. Awesome!Positive
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I called about some legal questions I needed to get clarified and John was able to give me clarification and sound advice. I will definitely contact John for all future legal questions … More and issues.Thank you John!Positive
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Knows his stuff and well respected with DA and judges. I have referred him a couple times and every client has been satisfied
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John is beyond knowledgeable! If I decide to pursue my case any further I would only have him represent me.
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What a great attorney, this guy really took time out of his day to answer my questions and explain my case to me. Very grateful, thank you so muchPositive
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Absolutely a very professional lawyer. Very well read in the current law and more than willing to help if needed.
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Mr. John he’s a professional he knows what he’s doing and he’s patient they recommend Him stronglyPositive
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Great service, very knowledgable and happy to help with any questions I had
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Quick to action and helpful and knowledgeable with entertainment industry based issues!
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Responded on a holiday week. Very knowledgeable and reassuring.
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Very professional
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I want to thank John T. Floyd and all of his team. He is the best lawyer who cares aboutHis clients and fights really hard to get the best outcome. He is a fighter and he is awesome!!!I … More recommend if any one needs criminal defense , he is the BEST. We had a really serious caseAnd we are very thankful for the outcome. Thank you John!!!!! God bless you!!!!!!
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The attorneys at John T. Floyd Law Firm work diligently to achieve the best possible results for their clients. They are caring and knowledgeable professionals. Their expertise in the … More law and their experience as trial attorneys makes them the right choice as a defense attorney. I recommend this law firm highly.
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From beginning to end this firm handled my case like the top tier professionals they are. I would not trust ANYONE else with my legal needs after having less than stellar experiences … More with other teams. Thank you Floyd!!!
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I really felt like the team cared about my case and am super satisfied with the outcome. Would not recommend anyone else!
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These guys do amazing work and have phenomenal service! Hands down best in the Houston area!!
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John and Chris are true professionals! Love those guys like family!
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Mr. Floyd and his team are very knowledgeable, informative, and helpful.
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A team you can depend on to stand up and fight for you to prove the truth the whole truth!
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Mr. John T. Floyd represented me.I couldn't be happier with the outcome he managed to achieve on an VERY Important case that was dismissed the day of Trial. He is patient & … More very knowledgeable of the legal system. I HIGHLY recommend him to anyone in need of a lawyer!John, I am forever grateful & satisfied with the effort you put forth & all you did for me. Thank you isn't enough!God bless you & your family!
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The John T. Floyd Law Firm assisted me, and I can tell you that the attorney took the time to answer my questions, and I didn't feel rushed or dismissed as I have experienced in … More the past with attorneys. The attorney was very nice and extremely knowledgeable. Initial impressions and continued excellent customer service are big factors for me and as such I would highly recommend this firm.
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I thank you for your efforts to help Felons regain their Civil rights, and for the information on possession , I am A convicted Felon, no violent history. I am an expert shot, I am … More 76 yoa, and very concerned about the present lake of Security in our State and Country. God Bless and Prosper you in your efforts, Your friend, Sonny Bivens
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I really appreciated both Chris and John helping with my legal questions and concerns. Both are good guys and I would not hesitate to recommend them.
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Extremely helpful!!! Helping me understand the law.
John T. Floyd is Board Certified in Criminal Law By the Texas Board of Legal Specialization
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