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A GOOD LOOK AT POTENTIAL JUROR BIAS
In re Commitment of Seth Hill: The Importance of Uncovering Bias Against Sexual Orientation in Jury Selection
By: Houston Criminal Lawyer John Floyd and Paralegal Billy Sinclair
Every criminal defendant enjoys a right protected by the Sixth Amendment of the United State Constitution to a trial by an impartial jury chosen from a jury panel that represents a fair cross-section of the community. A voir dire examination of a jury venire exists primarily to allow the parties the opportunity to reveal a potential bias among prospective jurors. While a trial court’s discretion at both the state and federal level is virtually unfettered when it comes to controlling voir dire questioning, there are occasions when the appellate courts find an abuse of that discretion when the trial court arbitrarily restricts a specific line of questioning designed to elicit bias among potential jurors. For example, the Second Circuit Court of Appeals held that a trial court was required to conduct an in-depth inquiry, or permit such an inquiry by the parties, into racial bias when a reasonable potential for bias existed because feelings among prospective jurors toward African-American defendant were unknown and he was being tried by a white jury in a predominantly white area.
The Texas Supreme Court recently handed down a comparable decision in a case involving the civil commitment of a designated “repeat sexually violent offender” named Seth Hill. Under § 841.003 of the Texas Health and Safety Code, the State had the burden of proving to a jury that (1) Hill was a “repeat sexually violent offender” and (2) he suffered from a “behavioral abnormality that made him likely to engage in a predatory act of sexual violence.”
Hill’s attorney knew from the outset that his client’s “sexual history” would be the primary focus in the civil commitment proceeding. The State would call an “expert” witness who would present the opinion that Hill suffered from a “behavioral abnormality”—an opinion premised on the expert’s highly suspect conclusion that if an individual begins life with a heterosexual preference but later opts to engage in homosexual behavior, an inference can be drawn that the individual has “instability within their personality” and this is a legitimate basis for concluding that he suffers from a sexual “behavioral abnormality.” And the State buttressed this questionable expert opinion testimony by securing pretrial testimony from Hill himself about his sexual activity with other inmates at an all-male penal facility—behavior that Hill readily admitted to.
Forearmed with this much information about the State’s case, Hill’s attorney quite naturally wanted to explore prospective jurors’ feelings about homosexuality—and because, as the Texas Supreme Court observed, “a party selecting jurors for trial must be given latitude to intelligently use its peremptory challenges to seat a jury that, to the greatest extent possible, is free from bias.” The defense attorney quite naturally, and without any objection from the State, initiated questioning of potential jurors about any bias they may have had toward a homosexual person. Several of the jurors were frank enough to respond that they could not give such a person “a fair trial,” a sacred constitutional right to which he and all accused persons are entitled. However, once the trial court saw the possibility of serious sexual bias being revealed among the jury venire, the court instructed defense counsel not to ask any further direct questions “about Hill’s homosexuality.” The Texas Supreme Court then told
“Hill’s attorney then attempted to ask the panel whether, if the State proved that Hill had committed two or more violent sexual offenses, the potential jurors would convict Hill based on that evidence alone or would [they] also require the State to prove the statute’s second element that Hill had a behavioral abnormality predisposing to commit such acts. The State objected to this line of questioning, calling Hill’ questions improper commitment questions, and the court sustained the question. When Hill’s attorney attempted to rephrase his question, he was again told that the question was prohibited.”
The subsequently chosen jury found the State had proven Hill satisfied the statutory requirement for “civil commitment” and the trial court signed the judgment of commitment. The Ninth Court of Appeals, sitting in Beaumont, upheld the trial court’s decision. Fortunately, the Texas Supreme Court reversed the trial court judgment and the appeals court decision, and in the process offered valuable instruction to both prosecutors and judges about the purpose and extent of a voir dire examination. The state’s high court instructed:
- Litigants have the right to question potential jurors to discover biases and to properly use peremptory challenges.
- This right is constrained by “reasonable trial court control.”
- The decisions by the trial court to restrict voir dire questioning, therefore, are reviewed under the abuse of discretion standard.
- A trial court abuses it discretion when denies a party the right to ask proper questions which prevents a determination of whether grounds exist to challenge a prospective juror for cause or otherwise prevents the intelligent use of peremptory challenges.
- The fact that the trial court prevented Hill from “discovering the potential biases” about his alleged “behavioral abnormality,” which was rooted in his prison homosexual activity, and denied him the opportunity to strike any biased juror for cause and to “intelligently use [his] peremptory challenges.”
The Supreme Court pointed out that the court of appeals did not reach the “abuse of discretion” issue because it ruled Hill had not preserved the error for appeal. The Supreme Court dismissed this procedural concern by pointing out: “ … the questions Hill asked were proper, and there was no need for him to rephrase because there were no defects for him to cure. Moreover, he made clear why he was entitled to ask the requested questions. The court instead ordered him to ask a question that did not address the issue of juror bias and then directed him to move on without asking any further questions on the topic. But the candid admissions of bias by the potential jurors, before the trial court suspended that line of questioning, establish both the propriety of the question and the trial court’s abuse in denying Hill the right to ask it.”
The Supreme Court next turned its attention to whether Hill’s attorney’s “second line of inquiry” (whether jurors would require the State to prove the second element of the commitment statute, “behavioral abnormality”) constituted “improper commitment questions.” The state’s high court said the trial court abused its discretion here as well because “the commitment that the potential jurors were asked to make was legislatively mandated: they were asked whether would require the state to prove both elements of a conjunctive statute … Jurors swear an oath to render a true verdict … according to the law … and to the evidence. Implicit in that oath is a commitment to follow the law the Legislature enacted, and a party participating in jury selection may solicit from potential jurors that promise, essential to the empanelling of a fair jury.”
While the Seth Hill decision in a per curiam ruling is a civil case, it certainly reinforces voir dire principles of law applicable to criminal cases. We recently tried a child sexual assault case during which on voir dire we tried to discover potential biases among jurors in such a volatile case. Several jurors readily admitted they had a “bias” against our client simply because he had been “indicted” for the offense which, according to them, meant “he must have done something wrong.” One prospective juror even commented that he was “uncomfortable” just being in the “same room” with our client because he had been indicted for such an offense. These people could not be fair and impartial jurors in this particular case, so we thanked them for their honestly and struck them for cause.
Juror biases are real. They exist because a jury venire is chosen from the real world. A very prominent former Louisiana politician was convicted recently in federal court after his third trial for income tax evasion. The first two trials ended with “mistrials” being declared after the jurors could not reach a verdict. On voir dire examination during the first two trials, attorneys for the accused African-American politician were permitted to ask jurors to raise their hands if they had a “bias” against politicians accused of corruption or other crimes. A significant number of jurors, mostly white, raised their hands indicating they had a strong bias against such politicians. They were all excused by the court, leaving a larger array of African-Americans in the jury pool. The subsequent juries selected at the first two trials, therefore, were racially balanced, reflecting a fair cross section of the North Louisiana community in which the politician was being tried.
However, things were dramatically different at the third trial. The Government objected to defense counsel being allowed to ask any questions about potential bias among the jury venire concerning corrupt politicians. The trial judge agreed, precluding the defense attorneys from exploring this area of potential bias. The end result: the Government got an overwhelming white jury (10 whites, two blacks) and this jury convicted the politician of income tax evasion and the judge sentenced him to 27 months in prison. The trial court’s refusal to allow a bias exploration by the defense produced a jury prone to convict for the government.
An ugly scenario? Yes. But that’s the real world in the jury selection process in most criminal cases. It’s dirty pool, but that’s the nature of the beast defense attorneys must confront and wrestle at the start of every criminal trial.
When jurors walk out of their everyday lives into courtrooms to sit in judgment of people against whom they have a predisposed bias, homosexuality in the Seth Hill case, defense attorneys must have some leeway to explore and discover these often concealed biases. And when trial judges arbitrarily foreclose these lines of questioning, a reasonable assumption can be made that the judge favors the prosecution and is tilted against the defense. So, the defense lawyer must be vigilant at this important point in the trial. This is a tricky, sensitive area of the trial to navigate: the defense attorney must convince the judge that the law allows the line of questioning, that the questions are necessary to reveal a relevant juror bias, and that’s where the most recent ruling by the Texas Supreme Court can be so persuasive.
The law always works better when the parties keep their emotions and personal beliefs out of the procedural wrangling that inevitably occurs in every criminal trial. The Seth Hill case stands as a reminder to us all that we must stay on point to ensure the justice system is fairly administered and hopefully produce the best result possible.
By: Houston Criminal Attorney John Floyd and Paralegal Billy Sinclair
John Floyd is Board Certified in Criminal Law by the Texas Board of Legal Specialization
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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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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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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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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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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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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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