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ADAM WALSH ACT UNDER CONSTITUTIONAL SCRUTINY
Growing Practice of “No Bond” and Unreasonably Harsh Sentences for Some Child Sex Crimes Sparks Judicial Concern
By: Houston Criminal Attorney John Floyd and Paralegal Billy Sinclair
In July 2006 former President George W. Bush signed into law the Adam Walsh Child Protection and Safety Act (“Walsh Act”). Title I of the Walsh Act, the Sex Offender Registration and Notification Act (“SORNA”), received the most media attention because it expanded the National Sex Offender Registry and established sanctions up to a maximum of twenty years for sex offenders who do not comply with the law’s registration requirements.
One of the lesser publicized impacts of the Walsh Act has been the restrictions on bail and the increased sentencing disparity for defendants charged with simple possession of computerized child pornography. The latter problem was succinctly described by Judge Merritt’s dissent in a January 9, 2009 decision by the Sixth Circuit Court of Appeals, United States v. Paull, in which he said: “As a recent October 23, 2008, Wall Street Journal article by Amir Efrati points out, our federal legal system has lost its bearings on the subject of computer-based child pornography. Our ‘social revulsion’ against these ‘misfits’ downloading these images is perhaps somewhat more rational than the thousands of witchcraft trials and burnings conducted in Europe and here from the Thirteenth to the Eighteenth Centuries, but it borders on the same thing. In 2008 alone the Department of Justice has brought 2,200 cases… in the federal courts. Some trial and federal judges are sending these mentally ill defendants like Paull to federal prison on very long sentences. But the 17-1/2 year sentence for Paull may be the longest yet. He is a 65-year-old, psychologically disabled, former minister with Type I diabetes with many complications. How could this sentence be ‘not greater than necessary’ to punish this crime?”
Some federal prosecutors in the Southern District of Texas (“Southern District”) have expanded the “witchcraft” mindset from harsh sentencing practices to the unilateral practice of requesting detention pending trial, no bail, for all defendants charged with possession of child pornography. This creates a situation where child porn defendants in some federal districts are granted bail, albeit with strict conditions, while defendants in the Southern District are denied bail. This harsh policy of pretrial detention for child pornography defendants in the Southern District raises serious constitutional concerns; primarily, that the Eighth Amendment prohibition that “excessive bail shall not be required” is violated. The Supreme Court nearly 60 years ago in Stack v. Boyle held that criminal defendants charged in non-capital cases “shall” be released on bail if they give adequate assurances that they will appear at trial and submit to sentence if convicted.
With the Bail Reform Act of 1984, Congress codified the presumption in favor of pretrial release but also firmly established that bail is not a matter of constitutional right in all cases. Three years later the Supreme Court in United States v. Salerno upheld this congressional mandate by saying that “when Congress has mandated detention on the basis of a compelling interest other than prevention of flight … the Eighth Amendment does not require release on bail.”
With the Walsh Act, Congress eliminated a federal district judge’s discretion in setting bail in child pornography cases by imposing mandatory conditions on those child porn defendants released on bail. While the district court still maintains the preliminary discretion in deciding whether to grant bail or impose pretrial detention in these cases, Congress mandated that federal judges impose certain mandatory conditions as terms for bail.
But just as many federal judges across the country have rebelled against recommended sentencing determinations by the U.S. Sentencing Guidelines, federal judges have also placed the mandatory bail conditions of the Walsh Act squarely in their sights. For example, most recently the Senior Judge for the United States District Court in the Eastern District of New York, Jack B. Weinstein, in United States v. Polouizzi followed the lead of a number of other federal courts in holding that the mandatory bail provisions of the Watch Act are unconstitutional for the following reasons:
- Violates the Eighth Amendment Prohibition Against Excessive Bail: The court made the preliminary observation that “the weight of nisi prius authority is that the Adam Walsh Act is unconstitutional in cases such as the present one, since it requires imposition of electronic monitoring without discretion in all cases falling within the statute’s ambit.” Judge Weinstein found these mandatory “bail conditions … unconstitutionally excessive [because] they impose restraints that are more than necessary to achieve the government’s interest—in this case, preventing risk of flight and of danger to society or children.”
- Violates the Fifth Amendment Prohibition Against a Person Being Denied Liberty Without Due Process of Law: Judge Weinstein noted that while the concept of “due process” is flexible, it nonetheless requires “procedural protections” when an individual’s liberty interest is at stake. Judge Weinstein found that an individual’s “valid liberty interest in freedom of movement … is arbitrarily and substantially reduced by the Adam Walsh Act. The right to travel from one place to another free of hindrances is a well established aspect of constitutionally protected private freedom.” The judge added that “a curfew, by its definition, restricts the ability of the defendant to move about in a public area during periods of time. The condition of a mandatory curfew with an associated electronic monitoring bracelet imposed pursuant to the Adam Walsh Act substantially constrains freedom-of-movement liberty … Electronic monitoring devices that inhibit straying beyond spatial home property limits, like those used to restrain pet dogs, are intrusive.”
Judge Weinstein, like most other judges, stopped short of concluding that the Walsh Act violates the constitutional doctrine of “separation of powers” as Judge Leslie G. Foschio did in December 2006 in the case of United States v. Crowell—a decision emanating from the Western District of New York and decided just six months after the Walsh Act was signed into law by President Bush. Judge Weinstein rejected Judge Foschio’s position by saying that the “violation of separation of powers theory does not provide a sufficient basis for declaring the Adam Walsh Act unconstitutional. Congress has a major role in regulating bail. The Bail Reform Act of 1984, for example, was protective of a defendant’s rights against imposition of excessive bail.”
But clearly the constitutional friction between the federal courts and Congress over the issue of child pornography, whether it relates to degree of sentencing or the amount of bail, is escalating. And for good reason, the courts are intended to be independent guardians of constitutional liberties while Congress is a political machine whose primary goal is to enact legislation that (1) will ensure their reelection and (2) promote political partisanship. As we pointed out in a blog earlier this year:
“Congress has repeatedly created new offenses, increased penalties, and issued directives to the Commission concerning child pornography offenses. The following is a list of many of the laws enacted by Congress over the
last three decades regarding child pornography-related offenses:
- Protection of Children Against Exploitation Act of 1978;
- Child Protection Act of 1984;
- Child Sexual Abuse and Pornography Act of 1986;
- Child Abuse Victims’ Rights Act of 1986;
- Child Protection Restoration and Penalties Enhancement Act of 1990;
- Sex Crimes Against Children Prevention Act of 1995;
- Protection of Children from Sexual Predators Act of 1998;
- Prosecutorial Remedies and Other Tools to end the Exploitation of Children Today Act of 2003;
- PROTECT Our Children Act of 2008;
- Providing Resources, Officers, and Technology to Eradicate Cyber Threats to Our Children Act of 2008;
- Keep the Internet Devoid of Sexual Predators Act of 2008; and
- Effective Child Pornography Prosecution Act of 2008.
“This endless stream of legislation has contributed to an increasing, and more open, judicial chaos in the specific area of child pornography sentencing.”
The sentencing chaos has now spilled over into the area of bail. This is evidenced by the practice of judges in
the Southern District of Texas, which encompasses Harris County, denying bail in virtually every child pornography case brought in this district. But with other federal courts across the country expressing their constitutional dissatisfaction with the mandatory bail conditions of the Walsh Act, the “no-bail” practice in the Southern District will inevitably come under increasing attack by criminal defense attorneys.
We believe that possession of child pornography under any circumstances is offensive and society has every right to criminalize this conduct, which is ultimately derived from extreme child abuse. Yes, the images are disgusting and violate some of our most cherish moral values, but are those who view these terrible images in the privacy of their homes violent monsters, incapable of redemption. Wouldn’t theses individuals, who simply possess child pornography without acting-out or abusing children, be better punished by court ordered counseling and other therapies intended to mend their obviously damaged psyches that obviously fuel this demented obsession? Or, is it better to do what comes easiest to most of us, lock them away forever and forget they exist.
It has become patently obvious that Congress uses these types of crimes as easy targets upon which to legislate to create political advantage, much like the Witch Hunts of former times. That’s why we support the growing movement in the federal courts to bring some sanity to the sentencing and bail practices flowing from the Walsh Act.
By: Houston Criminal Lawyer John Floyd and Paralegal Billy Sinclair
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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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John is an amazing person and lawyer who is actually very understanding of how anxious I got and although it was hard to reach him sometimes because of his schedule, but never worry … More he is on top of things. He is very organized, very smart. I had the experience to go through a trial with him, and he always plans ahead well and is actually open and receptive to any ideas and comments I had and he was quick to decide which is right to use at the moment. I really appreciated working with him and Chris. Great lawyers and great people. As I was reminded by John, I am adding that the Jury reached a not guilty decision on the original charge and on a lesser charge in just 25 minutes. It took more time to write the charge and instructions for the jury than it took them to reach a decision.
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Highly recommend John T Floyd law firm, great response time and demeanor.I was researching an on-going criminal case, when I found an informative article written by John Floyd (about … More the perils of expert testimony). I called his office, and was very pleased to receive a timely call back. Not only was Mr. Floyd candid and helpful, but he had the kindest demeanor of any attorney that I've dealt with. I am so glad to have found this firm.
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Although I am not a client, John Floyd contacted me the same day I sent an email requesting advice, answered my questions and even when further to assist with my issue and communicated … More with me the next day. A true credit to his profession and I can only imagine how well he provides services to his actual clients!
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I give Mr. Floyd 10 Stars if they were available so I'm giving him five that's all that's available. The first time I left a message for him it was on a Friday after … More 5 p.m. and within 15 minutes he called me back I told him I needed to buy a lotto ticket because that has never happened. I knew from our chat and him calling me back that he was different from any attorney I've tried to talk to left messages never got called back they didn't even know what I needed and neither did Mr. Floyd but he did call me back. I was very interested in meeting with mr. Floyd about my case because I felt he was very transparent honest and genuine. If you've ever dealt with attorneys they don't have those traits but Mr. Floyd does. He was very honest with me told me what I could and could not do with my case. He is not egotistical he's very compassionate and he actually reads the documents you sent him unbelievable that's never happened. He will be the only lawyer I refer to anyone that needs his expertise. If you're in need of a criminal defense attorney please give John T Floyd a call you will not be disappointed.
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Mr John is a great human being and a very knowledgeable attorney. He has always called me back promptly,advised me very clearly and never rushed our conversation. i was wrongfully accused … More and Mr John had my case DISMISSED!! on the day of trial after fighting for me for two years. I am very thankful to the John T. Floyd Law Firm. You will not go wrong with John. Mr John you deserve way more then 5 stars.Thank youShaikh.
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John Floyd Law Firm is highly recommended for your legal needs. He and his staff are highly professional in every aspect. Easy and comfortable feeling talking with him, and he understands … More your needs and explains your legal advice in a way you can understand. Enough just cant be said. Thank You Sir.Positive
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John was kind enough to assist me with legal advise on my firearm gun rights restoration. I highly recommend him and his firm. Very professional and knowledgeable. If I need assistance … More in the future I will definitely go back to 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 T Floyd handled my sons case & got a dismissal for us! He is great to work with, gets back to you promptly & knows what he’s doing. Definitely one of the best we have had … More to deal with!Positive
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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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Great lawyer! Needed some advice and gave me a Consultation, and advice for steps to take, without any hassle l, Was a honest guy and actually wanted to help me and not just take my … More money! Highly recommend!!Positive
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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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Very helpful highly recommended for any Question / case will definitely keep he's name and number for any other legal advice
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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 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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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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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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