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THE ETHICAL IMPLICATIONS OF A BRADY VIOLATION

Dec 04 2011
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Disciplinary Action against Rogue Prosecutors Who Intentionally Engage in Wrongful Conduct, Brady Violations Rare
By: Houston Criminal Lawyer John Floyd and Paralegal Billy Sinclair

Among lawyers practicing criminal law, “Brady violation” is probably second only to a “Miranda warning” as the most recognizable legal term in this country’s jurisprudence; and, significantly, both of these U.S. Supreme Court decisions are designed to curb prosecutorial and law enforcement misconduct. It’s an unfortunate commentary on our criminal justice system when these two important must be instructed by the highest court in the nation to obey the law and uphold our most cherished constitutional tenets: right to a fair trial and right to counsel.

As far back as 1908, when the American Bar Association adopted its Canons of Professional Ethics (“Canons”), prosecutors have been instructed that “[t]he primary duty of a lawyer engaged in public prosecution is not to convict, but see that justice is done. The suppression of facts or secreting of witnesses capable of establishing the innocence of the accused is highly reprehensible.”

It is telling that more than a century ago the ABA felt the need to instruct prosecutors to do the obvious: obey the law. It is evident that the overseer of professional conduct of our Country’s legal system had witnessed enough misconduct by prosecutors before 1908 to feel the need to establish Canon 5 as “guidance” for prosecutors.

Twenty-seven years after the Canons were adopted the U.S. Supreme Court, in

Disciplinary Action against Rogue Prosecutors Who Intentionally Engage in Wrongful Conduct, Brady Violations Rare

By: Houston Criminal Lawyer John Floyd and Paralegal Billy Sinclair

Among lawyers practicing criminal law, “Brady violation” is probably second only to a “Miranda warning” as the most recognizable legal term in this country’s jurisprudence; and, significantly, both of these U.S. Supreme Court decisions are designed to curb prosecutorial and law enforcement misconduct. It’s an unfortunate commentary on our criminal justice system when these two important must be instructed by the highest court in the nation to obey the law and uphold our most cherished constitutional tenets: right to a fair trial and right to counsel.

As far back as 1908, when the American Bar Association adopted its Canons of Professional Ethics (“Canons”), prosecutors have been instructed that “[t]he primary duty of a lawyer engaged in public prosecution is not to convict, but see that justice is done. The suppression of facts or secreting of witnesses capable of establishing the innocence of the accused is highly reprehensible.”

It is telling that more than a century ago the ABA felt the need to instruct prosecutors to do the obvious: obey the law. It is evident that the overseer of professional conduct of our Country’s legal system had witnessed enough misconduct by prosecutors before 1908 to feel the need to establish Canon 5 as “guidance” for prosecutors.

Twenty-seven years after the Canons were adopted the U.S. Supreme Court, in Mooney v. Holohan, was forced to inform prosecutors that the “knowing use” of perjured testimony to convict a criminal defendant violated “due process” of law. The Attorney General for the State of California had argued before the Court that the acts or omissions by a prosecutor could never rise to the level of a due process violation. The Court said that such a position would violate “the fundamental conceptions of justice which lie at the base of our civil and political institutions.” Not stopping there, the Court added that the requirement of due process,

“ … cannot be deemed to be satisfied by mere notice and hearing if a state has contrived a conviction through the pretense of a trial which, in truth, is but used as a means of depriving a defendant of liberty through a deliberate deception of the court and jury by the presentation of testimony known to be perjured. Such a contrivance by a state to procure a conviction and imprisonment of a defendant is as inconsistent with the rudimentary demands of justice as is the obtaining of a like result by intimidation. And the action of prosecuting officers on behalf of the state, like that of administrative officers in the execution of its laws, may constitute state action within the purview of the Fourteenth Amendment. That amendment governs any action of a state, ‘whether through its legislature, through its courts, or through its executive or administrative officers.”

What was so hard to understand about that constitutional instruction: prosecutors have a fundamental duty to uphold the law and play fair? This duty was made even clearer by the Supreme Court just three months after Mooney in the case of Berger v. United States. In that federal conspiracy case, the Supreme Court found that a U.S. attorney had engaged in “misconduct” through his trial tactics:

“That the United States Attorney overstepped the bounds of that propriety and fairness which should characterize the conduct of such an officer in the prosecution of a criminal offense is clearly shown by the record. He was guilty of misstating the facts in his cross-examination of witnesses; of putting into the mouths of such witnesses things which they had not said; of suggesting by his questions that statements had been made to him personally out of court in respect of which no proof was offered; of pretending to understand that a witness had said something which he had not said, and persistently cross-examining the witness upon that basis; of assuming prejudicial facts not in evidence; of bullying and arguing with witnesses; and, in general, of conducting himself in a thoroughly indecorous manner. We reproduce from the record illustrating some of the various points of the foregoing summary. It is impossible, however, without reading the testimony at some length, and thereby obtaining a knowledge of the setting in which the objectionable matter occurred, to appreciate fully the extent of the misconduct. The trial judge, it is true, sustained objections to some of the questions, insinuations, and misstatements, and instructed the jury to disregard them. But the situation was one which called for a stern rebuke and repressive measures and, perhaps, if these were not successful, for the granting of a mistrial. It is impossible to say that the evil influence upon the jury of these acts of misconduct was removed by such mild judicial action as was taken.”

Two cases, two prosecutors—one state, the other federal—engaging in deliberate misconduct in order to obtain a criminal conviction. These two examples of prosecutorial misconduct cited in 1935 by a very conservative Supreme Court shamefully demonstrated just how pervasive such conduct has always been in our legal system. More to the point, it reflects just how casually some prosecutors have historically disregarded the Canons of professional conduct. As further evidence of this harsh criticism of prosecutors, we point to yet another Supreme Court decision in 1959, Napue v. Illinois, which reiterated the principal established by Mooney: “the failure of the prosecutor to correct the testimony of the witness which he knew to be false denied petitioner due process of law in violation of the Fourteenth Amendment.”

Nearly a quarter of a century after Mooney the Supreme Court was once again forced to tell prosecutors that they cannot “lie, cheat or steal” to secure a criminal conviction; that they must play by clearly established rules of due process of law enshrined in the Fifth and Fourteenth Amendments of the United States Constitution. The Mooney decision notwithstanding, prosecutors in the State of Maryland, just months before Napue was decided, secured convictions against John L. Brady and Charles Donald Boblit for a first degree murder that occurred during a robbery. Both men were sentenced to death. At his trial Brady took the stand and admitted taking part in the robbery but said Boblit was the one who actually killed the victim, William Brooks. Brady’s defense counsel argued in summation that while his client should be convicted of first degree murder, he should not be sentenced to death because he did not kill the victim. Brady’s attorney had requested prior to trial that prosecutors provide him with “extrajudicial statements” made by Boblit. Several of those statements were shown to the defense attorney but one statement in which Boblit admitted he was the one who strangled the victim was withheld by prosecutors. Defense counsel learned of this statement after Brady had been tried, convicted, sentenced to death, and after his conviction and sentence were upheld on direct appeal. The Supreme Court in 1963, in the renowned Brady v. Maryland decision, once again held:

“The principle of Mooney v. Holohan is not punishment of society for misdeeds of a prosecutor but avoidance of an unfair trial to the accused. Society wins not only when the guilty are convicted but when criminal trials are fair; our system of the administration of justice suffers when any accused is treated unfairly. An inscription on the walls of the Department of Justice states the proposition candidly for the federal domain, ‘The United States wins its point whenever justice is done its citizens in the courts.’ A prosecution that withholds evidence on demand of an accused which, if made available, would tend to exculpate him or reduce the penalty helps shape a trial that bears heavily on the defendant. That casts the prosecutor in a role of an architect of a proceeding that does not comport with standards of justice, even though, as in the present case, his action is not ‘the result of guile’ …”

Perhaps in response to decisions like Mooney, Berger, Napue and Brady, the ABA in 1969 changed its Canons to the Model Code of Professional Responsibility which, as Lisa M. Kurcias said in the Fordham Law Review article, was “essentially a redraft of the Canons.” However, beyond stating a number of Disciplinary Rules as being mandatory, the Model Code offered discretionary “Ethical Considerations” designed to guide attorneys in the administration of justice. The preliminary statement of the Model Code specifically stated that its Ethical Considerations “are aspirational in character and represent the objectives toward which every member of the profession should strive.”

Led by Hofstra Law School Professor Monroe H. Freedman, some critics criticized the Model Code as both incoherent and possibly unconstitutional. The criticisms, as pointed out by Ms. Kurcias, prompted the ABA in 1983 to adopt its Model Rules of Professional Conduct. As we pointed out in a previous post, these Rules have since been adopted, in some form or another, by 49 of the nation’s fifty states, as well as by the District of Columbia, Virgin Islands, and Guam.

Rule 3.8(d) of the Model Rules imposes the following “special” responsibility on prosecutors to “make timely disclosure to the defense of all evidence or information known to the prosecutor that tends to negate the guilt of the accused or mitigates the offense, and, in connection with sentencing, disclose to the defense and to the tribunal all unprivileged mitigating information known to the prosecutor, except when the prosecutor is relieved of this responsibility by a protective order of the tribunal.”

During the years between 1969, when the ABA adopted the Model Code, and 1983, which saw the release of the Model Rules, the Supreme Court issued three significant decisions to “guide” prosecutors toward their duty to obey the law. The first, Giglio v. United States, came in 1972 which extended the Brady disclosure rule to impeachment evidence. The Government in Giglio had withheld information that a U.S. attorney had made a promise to a key witness that if the witness testified before a grand jury, he would not be prosecuted. The witness later testified at trial that no one had made any “promises” to him about not being prosecuted if he implicated others in the crime. The Court held that had the Government provided information about the non-prosecution promise to the defense, it could have used the information to impeach the witness’s credibility.

The second decision, Moore v. Illinois, came just four months after Giglio. While standing by its Brady and Napue decisions, the Moore Court held there is “no constitutional requirement that the prosecution make complete and detailed accounting to the defense of all investigatory work on a case.” The Court reasoned that while some evidence may help the defense or even affect the verdict of the trial, it does not automatically follow that the evidence is “material” in a constitutional sense.

Finally, the third decision, Agurs v. United States, came in 1976. Agurs expanded the Brady duty to disclose upon request requirement to cases in which no request is made. The Court reasoned that since defense counsel may not be aware of any exculpatory evidence in the possession of the prosecution, the burden to disclose therefore shifts to the prosecution, regardless of the absence of a specific request.

Agurs, however, introduced the “harmless error” equation into the Brady rule—a derivative of Chapman v. California, which held that if an error in a criminal proceeding does not affect the outcome of that proceeding, then the error is deemed “harmless.” The Agurs Court defined the harmless error rule for Brady errors:

“On the one hand, the fact that such evidence was available to the prosecutor and not submitted to the defense places it in a different category than if it had simply been discovered by a neutral source after trial. For that reason the defendant should not have to satisfy the severe burden of demonstrating that newly discovered evidence probably would have resulted in acquittal. If the standard applied to the usual motion for a new trial based on newly discovered evidence were the same when the evidence was in the State’s possession as when it was found in a neutral source, there would be no special significance to the prosecutor’s obligation to serve the cause of justice.

“On the other hand, since we have rejected the suggestion that the prosecutor has a constitutional duty to routinely deliver his entire file to defense counsel, we cannot consistently treat every nondisclosure as though it were error. It necessarily follows that the judge should not order a new trial every time he is unable to characterize a nondisclosure as harmless under the customary harmless-error standard. Under that standard when error is present in the record, the reviewing judge must set aside the verdict and judgment unless his ‘conviction is sure that the error did not influence the jury, or had but very slight effect.’ Unless every nondisclosure is regarded as automatic error, the constitutional standard of materiality must impose a higher burden on the defendant.”

“The proper standard of materiality must reflect our overriding concern with the justice of the finding of guilt. Such a finding is permissible only if supported by evidence establishing guilt beyond a reasonable doubt. It necessarily follows that if the omitted evidence creates a reasonable doubt that did not otherwise exist, constitutional error has been committed. This means that the omission must be evaluated in the context of the entire record. If there is no reasonable doubt about guilt whether or not the additional evidence is considered, there is no justification for a new trial. On the other hand, if the verdict is already of questionable validity, additional evidence of relatively minor importance might be sufficient to create a reasonable doubt.”

What emerged out of Brady, Giglio and Agurs is the following three prerequisites necessary to make out a Brady violation: (1) the evidence at issue must be favorable to the accused either because it is exculpatory, or because it is impeaching; (2) that evidence must have been suppressed by the State, either willfully or inadvertently; and (3) prejudice must have ensued.

This significant curtailment of Brady notwithstanding, the Agurs Court emphasized that a prosecutor is a minister of justice and not just an advocate, and “this responsibility carries with it specific obligations to see that the accused is accorded procedural justice and that guilt is decided upon the basis of sufficient evidence, including consideration of exculpatory evidence known to the prosecutor.”

Agurs drew its emphasis from Brady language that disclosure is required when the evidence is both “favorable” to the defense and is “material” to either guilt or punishment. A decade after Agurs and two years after the Model Rules, the Supreme Court reinforced the “materiality” standard set forth in Agurs, perhaps to diminish the responsibility of prosecutors to disclose favorable evidence to the defense. In Bagley v. United States, the Court held that evidence is material if it creates a “reasonable probability” that its disclosure would have altered the outcome of verdict. The Bagley Court said that a “reasonable probability” is “a probability sufficient to undermine the confidence in the outcome;” and to reach such a conclusion, the reviewing court must go beyond the mere probative value of the suppressed evidence and consider the cumulative effect of the suppressed evidence in light of all the other evidence. And that is a tough nut to crack.

In Bagley, a narcotics and firearms case, the Government had two principal witnesses, both of whom were private security guards. Three weeks prior to trial the defense filed a discovery motion requesting any “deals, promises or inducement made to witnesses in exchange for their testimony.” In its response to this request, the Government did not disclose any deals, promises or inducements given to the two witnesses. In fact, the Government provided the defense with affidavits signed by the two witnesses stating they had not been offered any rewards or promises of reward in exchange for their testimony. Following his conviction, Bagley filed a Freedom of Information Act request concerning the Government’s relationship with the two witnesses and discovered that the Government had indeed provided remuneration to the witnesses in exchange for their testimony.

In upholding the defendant’s conviction, the Bagley Court held that if the withheld evidence was a “constitutional error,” it was “the Government’s failure to assist the defense by disclosing information that might have been helpful in conducting the cross-examination [of the two witnesses] … [but] such [a] suppression of evidence amounts to a constitutional violation only if it deprives the defendant of a fair trial. Consistent [with our position in Agurs], a constitutional error occurs and the conviction must be reversed, only if the evidence is material in the sense that its suppression undermines confidence in the outcome of the trial.”

In effect, the materiality requirement of both Agurs and Bagley had the effect, if not the intent, of diminishing the “Ethical Considerations” of the Model Code and the “Responsibilities” of the Model Rules directed toward prosecutors. The sum of the two cases, in stark contrast to Mooney, Berger, Napue and Brady, allows prosecutors to violate the law and their professional ethics in cases in which they believe evidence of guilt is reasonably probable.

This inevitably raises the question: what can be done to hold prosecutors accountable when they engage in unlawful and/or unethical conduct that does not result in reversal of conviction? The answer, quite simply, is not much. As University of Arizona College of Law Professor, Ted Schneyer, wrote in a 1996 Fordham Law Review article, “[T]he ABA writes ethics codes and state supreme courts give them legal effect.”

At the outset, it must be noted that the Supreme Court, in Imbler v. Pachtman, held that prosecutors enjoy “absolute immunity” for any misconduct related to their “prosecutorial function.” Imbler was decided in 1976, three months before Agurs and two months after Moore. And the Supreme Court earlier this year, 2011, in Connick v. Thompson, held that the municipality for which prosecutors are employed cannot be held liable for monetary damages for unlawful or unethical conduct by prosecutors absent a showing that the prosecutorial misconduct was engaged in pursuant to an “official municipality policy,” which requires a showing that municipality lawmakers, such as a district attorney’s office, engaged in wrongful decision-making practices so “persistent and widespread as to practically have the force of law.” That’s an impossible nut to crack.

As Ms. Kurcias put it, “while the Supreme Court requires prosecutors to disclose certain evidence to the defense, consequences for withholding such evidence do not exist in the criminal justice system. In fact, the Supreme Court has granted prosecutors absolute immunity from civil liability for failure to disclose exculpatory evidence. Thus, prosecutors do not fear being sued for withholding evidence and the Brady Rule is consequently weakened. As one commentator stated, ‘[i]sofar as federal law is concerned, we have no reason at all to believe, under these consequences, that prosecutors will not continue to ignore their constitutional obligation under Brady. Consequently, encouragement for prosecutors to adhere to this requirement must be found elsewhere. Ideally, the ethics rules would supply this incentive.’”

But, given the historical resistance of state bar associations to imposing disciplinary sanctions on rogue prosecutors who engage in Brady misconduct, even when they are “repeat offenders, this incentive is weak. Insulated from civil liability with absolute immunity and facing reversal of conviction only in cases where guilt is not compelling, prosecutors have been granted by the Supreme Court and state bar disciplinary committees a license to engage in unlawful and unethical misconduct with virtual impunity. This was evidenced by an article in the Washington & Lee Law Review by University of Utah Law Professor Daniel S. Medwed who referenced a 1999 study of Illinois state criminal convictions reversed as a result of prosecutorial misconduct. Of the 326 reversals, only two prosecutors were subject to disciplinary sanctions and a third was dismissed from the State Attorney’s Office. Likewise, other prominent legal scholars, such as renowned Professor of Legal Ethics Fred Zacharies, have written that “the body of cases [involving disciplinary sanctions] is not entirely negligible.”

The New York-based Innocence Project says some of the 280 DNA exonerations in this country involved prosecutorial misconduct. The project’s executive directors, Barry Scheck and Peter Neufeld, conducted a study of the first 74 DNA-based exonerations and found that 37 percent involved suppression of exculpatory evidence, 25 percent involved the knowing use of false testimony, and 11 percent involved the use of coerced testimony.

Professor Medwed also had this to say about the lack of disciplinary sanctions in these kinds of cases: “… disciplinary bodies hardly ever sanction prosecutors who disregard Brady’s precepts. Two decades ago, Richard Rosen studied written disciplinary decisions nationwide and dug up only nine cases in which a prosecutor had ever been referred to the ethics board for suppressing exculpatory evidence. Just one of those nine disciplinary proceedings ended with a sanction, and merely a suspension at that. Rosen’s research methodology included a survey sent to disciplinary representatives in every state. Thirty-five of the forty-one states that responded to the query indicated that no formal complaints had ever been filed alleging Brady-type misconduct.

Joseph Weeks followed up on Rosen’s research ten years later and discovered a similar pattern. Weeks found seven cases where prosecutors had been referred to disciplinary bodies for purported Brady violations. Four of these referrals resulted in sanctions, the most severe of which was a six-month suspension. These findings about the paucity of discipline imposed on prosecutors for Brady violations, even the rarity of allegations themselves, are startling. Nothing suggests things have changed much in recent years. On the contrary, data produced by groups across the country suggest that disciplinary agencies stand idly by as the tide of Brady violations, if not rising, continues unabated.”

Two years before the results of Rosen’s study was released, an en banc panel of the Texas Court of Criminal Appeals in Ex Parte Adams, found that Dallas’ First Assistant District Attorney Doug Mulder had suppressed favorable evidence, knowingly used perjured testimony, and deceiving the trial court during the defendant’s capital murder trial. The defendant, Randall Dale Adams, whose wrongful conviction for the murder of a Dallas police officer became known through the nationally acclaimed documentary A Thin Blue Line, spent twelve years under a death sentence before his conviction was set aside. Mulder, whose misconduct was clearly detailed by the Court of Criminal Appeals, never faced any disciplinary action for sending an innocent man to death row—a man who came within 72 hours of execution.

In Banks v. Dretke the Supreme Court confronted yet another Texas case involving a Brady violation. Delma Banks, then twenty-one years of age, was put to trial in September 1980 in Bowie County for the murder of a 16-year-old teenager. He was convicted of capital murder and sentenced to death. Banks was strapped to the gurney in the state’s death chamber before receiving a stay from the Supreme Court just 10 minutes before the lethal cocktail was to be administered. Banks’ conviction was based primarily on two key witnesses; and as the Supreme Court pointed out in its 2004 decision, “the State withheld evidence that would have allowed Banks to discredit [these] two essential prosecution witnesses. The State did not disclose that one of those witnesses was a paid police informant, nor did it disclose a pretrial transcript that the other witness’ trial testimony had been intensively coached.” In fact, the prosecutor told the jury that the coached witness had “brought you absolute truth.”

Writing for the majority opinion, Justice Ruth Bader Ginsburg was particularly critical of the arguments State attorneys made before the Court: “The State here nevertheless urges, in effect, that ‘the prosecution can lie and conceal and the prisoner still has the burden to … discover the evidence,’ so long as the ‘potential existence’ of a prosecutorial misconduct claim have been detected. A constitutional rule thus declaring ‘prosecutor may hide, defendant must seek,’ is not tenable in a system constitutionally bound to accord defendants due process. ‘Ordinarily, we presume that public officials have properly discharged their official duties.’ We have several times underscored the ‘special role played by the American prosecutor in the search for truth in criminal trials. Courts, litigants, and juries properly anticipate that ‘obligations [to refrain from improper methods to secure a conviction] … plainly rest[ing] upon the prosecuting attorney, will be faithfully observed.’ Prosecutors’ dishonest conduct and unwarranted concealment should attract no judicial approbation.”

Clearly, some Texas prosecutors, like those California prosecutors who argued before the Supreme Court in Mooney, believe that “absolute immunity” and “harmless error” are not enough. They want the Supreme Court to grant them an unfettered license to “lie and conceal,” even when it means potentially innocent defendants will be executed or spend the rest of their lives in prison. As we discussed in two previous posts (here and here), that almost happened to Michael Morton who was wrongly convicted and sentenced to life imprisonment for the 1986 murder of his wife. Two Williamson County, Texas, prosecutors, Ken Anderson and Mike Davis, withheld material evidence that would have, at a minimum, surely resulted in a not guilty verdict. And to make matters even worse, current Williamson County District Attorney John Bradley fought for six years to prevent a key piece of evidence from being DNA tested—and when the evidence was eventually tested, it not only exonerated Morton but identified the real killer.

The Texas Court of Criminal Appeals officially declared Morton “innocent” this past October while the Texas State Bar announced it had launched an “investigation” into the conduct of all the prosecutors involved in the case. In the heat of the Morton controversy in October, the Texas Tribune reported on the issue of whether current state discovery laws should be expanded:

“Prosecutors, though, have not been the only ones to object to expanding discovery, said Rob Keppel, executive director of the Texas District and County Attorneys Association. Defense lawyers, he said, have objected to legislation that would also require them to turn over evidence to prosecutors.

“What is more, Keppel said, a new discovery law would not have prevented the kind of misconduct alleged in the Morton case. If a prosecutor or investigator decides to withhold key information even in the face of the Brady rules that already require its release, he said, a new state law will not spur their compliance.

“’If somebody didn’t play fair back then,’ he said, ‘I’m not sure exactly what law we change would address it.’”

But the real issue is not sharing evidence—the real issue is whether, as Justice Ginsburg noted, prosecutors should be allowed to “lie and conceal.” Many Texas district attorneys have an “open file” office policy which is not required under Moore. Still, that does not insure prosecutors have not lied or concealed material favorable evidence. There is a reasonable solution to the “lie and conceal” prosecutorial tactics. It was expressed by Grits for Breakfast, and we share his point of view:

“In this writer’s view, the best, simplest fix would be to eliminate ‘absolute immunity’ for prosecutors. While Texas legislators can’t overrule federal decisions (‘absolute immunity’ exists in no statute but is a judicial creation from the U.S. Supreme Court), the Lege would have to create its own version of the federal civil rights statute (USC 42, Sec. 1983) to allow civil suits in state court against prosecutors engaged in misconduct. State Rep. Lon Burnam filed a bill last sessions which would do just that in reaction to the Anthony Graves case …

“There was a committee substitute offered on that bill that would have given prosecutors ‘qualified immunity,’ which is the same as for police officers, instead of eliminating immunity entirely. Personally I’d prefer to no immunity – the same standard under which defense attorneys operate. Cops’ get qualified immunity – which still protects them from virtually all civil liability – because they make split-second decisions later second guessed in court. But for intentional misconduct, in rare instances, they can still be held liable. By comparison, prosecutors have all the time in the world to make decisions, or correct them. Ironically, this suggestion could be seen as a slap in the face to the Obama Administration, which has adamantly argued that prosecutors shouldn’t be held liable in civil court for egregious, intentional misconduct and there is no ‘free-standing’ due process right not to be framed.”

On November 11, 2011 the Dallas Morning News editorialized against “rogue prosecutors” in Texas. Besides the Michael Morton travesty, the newspaper cited the following cases in which individuals were wrongfully convicted by such prosecutors: (1) Anthony Graves, who was framed by Burleson County prosecutors, spent 18 years in prison, including death row, before being officially exonerated last year and awarded $1.4 million as compensation for the “bogus murder conviction;” (2) Dale Lincoln Duke, now 60, was released in Dallas County on November 4, 2011 after spending 14 years in prison on child abuse charges because prosecutors withheld evidence that the child’s grandmother thought the girl was lying. Duke was released after a state trial judge declared his conviction “unjust;” and (3) Chelsea Richardson, 27, was released from death row after a November 1, 2011 appeals court decision found prosecutors had withheld evidence that a different defendant may have been the “mastermind” in the murder of her parents–prosecutors had secured a death sentence by portraying Richardson as the “mastermind” behind the double murder—and she will now be sentenced to life imprisonment, just as her boyfriend was.

Don’t get us wrong. There are states with just as disgraceful history as Texas when it comes to Brady violations. For example, Ken Armstrong and Maurice Possley, writing in the Chicago Tribune in January 1999, produced an investigative piece titled “The Verdict: Dishonor.” Their study examined 67 death row cases granted new trials because of Brady violations. The reporters found that 24 of the condemned inmates were freed because charges were dismissed, or they were acquitted, or granted full pardons. Three pled guilty in exchange for sentences that freed them immediately while five others were re-convicted but received sentences less than death. Only four of the 67 were re-sentenced to death.

These case examples of Brady violations underscore what is no longer an anomaly but is fast becoming a norm in our criminal justice system: prosecutorial misconduct. It has become the single worse shame and disgrace in our system of justice: the “ministers of justice” charged with seeking and honoring the truth arguing that they enjoy the right to “lie and conceal” in pursuit of criminal convictions. Professor Bennett L. Gersham, writing in the South Texas Law Review, summed up this disturbing problem as follows:

“Making prosecutors accountable for violations of Brady has not been a success. To be sure, bar associations and grievance committees have the power to discipline prosecutors for violations of ethical rules. However, most commentators agree that professional discipline of prosecutors is extremely rare. The absence of significant discipline of prosecutors is particularly noteworthy in cases in which prosecutors intentionally suppress evidence that leads to a reversal of a defendant’s conviction and a stinging rebuke by a court of the prosecutor’s misconduct. Although one would realistically expect disciplinary agencies to proceed aggressively against such unscrupulous conduct, such is not the case. Moreover, of all the ethical rules relating to the conduct of a prosecutor, the ethical rule governing a prosecutor’s suppression of evidence is the most explicit and easiest to enforce. However, when faced with this ‘most dangerous conduct,’ disciplinary bodies typically look the other way.”

By either failing or refusing to impose disciplinary sanctions on rogue prosecutors, especially those who send innocent persons to death row, disciplinary agencies have become complicit in this increasing pattern of unethical conduct and criminal wrongdoing by prosecutors. The time has come for that to change…

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>Mooney v. Holohan, was forced to inform prosecutors that the “knowing use” of perjured testimony to convict a criminal defendant violated “due process” of law. The Attorney General for the State of California had argued before the Court that the acts or omissions by a prosecutor could never rise to the level of a due process violation. The Court said that such a position would violate “the fundamental conceptions of justice which lie at the base of our civil and political institutions.” Not stopping there, the Court added that the requirement of due process,

“ … cannot be deemed to be satisfied by mere notice and hearing if a state has contrived a conviction through the pretense of a trial which, in truth, is but used as a means of depriving a defendant of liberty through a deliberate deception of the court and jury by the presentation of testimony known to be perjured. Such a contrivance by a state to procure a conviction and imprisonment of a defendant is as inconsistent with the rudimentary demands of justice as is the obtaining of a like result by intimidation. And the action of prosecuting officers on behalf of the state, like that of administrative officers in the execution of its laws, may constitute state action within the purview of the Fourteenth Amendment. That amendment governs any action of a state, ‘whether through its legislature, through its courts, or through its executive or administrative officers.”

What was so hard to understand about that constitutional instruction: prosecutors have a fundamental duty to uphold the law and play fair? This duty was made even clearer by the Supreme Court just three months after Mooney in the case of Berger v. United States. In that federal conspiracy case, the Supreme Court found that a U.S. attorney had engaged in “misconduct” through his trial tactics:

“That the United States Attorney overstepped the bounds of that propriety and fairness which should characterize the conduct of such an officer in the prosecution of a criminal offense is clearly shown by the record. He was guilty of misstating the facts in his cross-examination of witnesses; of putting into the mouths of such witnesses things which they had not said; of suggesting by his questions that statements had been made to him personally out of court in respect of which no proof was offered; of pretending to understand that a witness had said something which he had not said, and persistently cross-examining the witness upon that basis; of assuming prejudicial facts not in evidence; of bullying and arguing with witnesses; and, in general, of conducting himself in a thoroughly indecorous manner. We reproduce from the record illustrating some of the various points of the foregoing summary. It is impossible, however, without reading the testimony at some length, and thereby obtaining a knowledge of the setting in which the objectionable matter occurred, to appreciate fully the extent of the misconduct. The trial judge, it is true, sustained objections to some of the questions, insinuations, and misstatements, and instructed the jury to disregard them. But the situation was one which called for a stern rebuke and repressive measures and, perhaps, if these were not successful, for the granting of a mistrial. It is impossible to say that the evil influence upon the jury of these acts of misconduct was removed by such mild judicial action as was taken.”

Two cases, two prosecutors—one state, the other federal—engaging in deliberate misconduct in order to obtain a criminal conviction. These two examples of prosecutorial misconduct cited in 1935 by a very conservative Supreme Court shamefully demonstrated just how pervasive such conduct has always been in our legal system. More to the point, it reflects just how casually some prosecutors have historically disregarded the Canons of professional conduct. As further evidence of this harsh criticism of prosecutors, we point to yet another Supreme Court decision in 1959, Napue v. Illinois, which reiterated the principal established by Mooney: “the failure of the prosecutor to correct the testimony of the witness which he knew to be false denied petitioner due process of law in violation of the Fourteenth Amendment.”

Nearly a quarter of a century after Mooney the Supreme Court was once again forced to tell prosecutors that they cannot “lie, cheat or steal” to secure a criminal conviction; that they must play by clearly established rules of due process of law enshrined in the Fifth and Fourteenth Amendments of the United States Constitution. The Mooney decision notwithstanding, prosecutors in the State of Maryland, just months before Napue was decided, secured convictions against John L. Brady and Charles Donald Boblit for a first degree murder that occurred during a robbery. Both men were sentenced to death. At his trial Brady took the stand and admitted taking part in the robbery but said Boblit was the one who actually killed the victim, William Brooks. Brady’s defense counsel argued in summation that while his client should be convicted of first degree murder, he should not be sentenced to death because he did not kill the victim. Brady’s attorney had requested prior to trial that prosecutors provide him with “extrajudicial statements” made by Boblit. Several of those statements were shown to the defense attorney but one statement in which Boblit admitted he was the one who strangled the victim was withheld by prosecutors. Defense counsel learned of this statement after Brady had been tried, convicted, sentenced to death, and after his conviction and sentence were upheld on direct appeal. The Supreme Court in 1963, in the renowned Brady v. Maryland decision, once again held:

“The principle of Mooney v. Holohan is not punishment of society for misdeeds of a prosecutor but avoidance of an unfair trial to the accused. Society wins not only when the guilty are convicted but when criminal trials are fair; our system of the administration of justice suffers when any accused is treated unfairly. An inscription on the walls of the Department of Justice states the proposition candidly for the federal domain, ‘The United States wins its point whenever justice is done its citizens in the courts.’ A prosecution that withholds evidence on demand of an accused which, if made available, would tend to exculpate him or reduce the penalty helps shape a trial that bears heavily on the defendant. That casts the prosecutor in a role of an architect of a proceeding that does not comport with standards of justice, even though, as in the present case, his action is not ‘the result of guile’ …”

Perhaps in response to decisions like Mooney, Berger, Napue and Brady, the ABA in 1969 changed its Canons to the Model Code of Professional Responsibility which, as Lisa M. Kurcias said in the Fordham Law Review article, was “essentially a redraft of the Canons.” However, beyond stating a number of Disciplinary Rules as being mandatory, the Model Code offered discretionary “Ethical Considerations” designed to guide attorneys in the administration of justice. The preliminary statement of the Model Code specifically stated that its Ethical Considerations “are aspirational in character and represent the objectives toward which every member of the profession should strive.”

Led by Hofstra Law School Professor Monroe H. Freedman, some critics criticized the Model Code as both incoherent and possibly unconstitutional. The criticisms, as pointed out by Ms. Kurcias, prompted the ABA in 1983 to adopt its Model Rules of Professional Conduct. As we pointed out in a previous post, these Rules have since been adopted, in some form or another, by 49 of the nation’s fifty states, as well as by the District of Columbia, Virgin Islands, and Guam.

Rule 3.8(d) of the Model Rules imposes the following “special” responsibility on prosecutors to “make timely disclosure to the defense of all evidence or information known to the prosecutor that tends to negate the guilt of the accused or mitigates the offense, and, in connection with sentencing, disclose to the defense and to the tribunal all unprivileged mitigating information known to the prosecutor, except when the prosecutor is relieved of this responsibility by a protective order of the tribunal.”

During the years between 1969, when the ABA adopted the Model Code, and 1983, which saw the release of the Model Rules, the Supreme Court issued three significant decisions to “guide” prosecutors toward their duty to obey the law. The first, Giglio v. United States, came in 1972 which extended the Brady disclosure rule to impeachment evidence. The Government in Giglio had withheld information that a U.S. attorney had made a promise to a key witness that if the witness testified before a grand jury, he would not be prosecuted. The witness later testified at trial that no one had made any “promises” to him about not being prosecuted if he implicated others in the crime. The Court held that had the Government provided information about the non-prosecution promise to the defense, it could have used the information to impeach the witness’s credibility.

The second decision, Moore v. Illinois, came just four months after Giglio. While standing by its Brady and Napue decisions, the Moore Court held there is “no constitutional requirement that the prosecution make complete and detailed accounting to the defense of all investigatory work on a case.” The Court reasoned that while some evidence may help the defense or even affect the verdict of the trial, it does not automatically follow that the evidence is “material” in a constitutional sense.

Finally, the third decision, Agurs v. United States, came in 1976. Agurs expanded the Brady duty to disclose upon request requirement to cases in which no request is made. The Court reasoned that since defense counsel may not be aware of any exculpatory evidence in the possession of the prosecution, the burden to disclose therefore shifts to the prosecution, regardless of the absence of a specific request.

Agurs, however, introduced the “harmless error” equation into the Brady rule—a derivative of Chapman v. California, which held that if an error in a criminal proceeding does not affect the outcome of that proceeding, then the error is deemed “harmless.” The Agurs Court defined the harmless error rule for Brady errors:

“On the one hand, the fact that such evidence was available to the prosecutor and not submitted to the defense places it in a different category than if it had simply been discovered by a neutral source after trial. For that reason the defendant should not have to satisfy the severe burden of demonstrating that newly discovered evidence probably would have resulted in acquittal. If the standard applied to the usual motion for a new trial based on newly discovered evidence were the same when the evidence was in the State’s possession as when it was found in a neutral source, there would be no special significance to the prosecutor’s obligation to serve the cause of justice.

“On the other hand, since we have rejected the suggestion that the prosecutor has a constitutional duty to routinely deliver his entire file to defense counsel, we cannot consistently treat every nondisclosure as though it were error. It necessarily follows that the judge should not order a new trial every time he is unable to characterize a nondisclosure as harmless under the customary harmless-error standard. Under that standard when error is present in the record, the reviewing judge must set aside the verdict and judgment unless his ‘conviction is sure that the error did not influence the jury, or had but very slight effect.’ Unless every nondisclosure is regarded as automatic error, the constitutional standard of materiality must impose a higher burden on the defendant.”

“The proper standard of materiality must reflect our overriding concern with the justice of the finding of guilt. Such a finding is permissible only if supported by evidence establishing guilt beyond a reasonable doubt. It necessarily follows that if the omitted evidence creates a reasonable doubt that did not otherwise exist, constitutional error has been committed. This means that the omission must be evaluated in the context of the entire record. If there is no reasonable doubt about guilt whether or not the additional evidence is considered, there is no justification for a new trial. On the other hand, if the verdict is already of questionable validity, additional evidence of relatively minor importance might be sufficient to create a reasonable doubt.”

What emerged out of Brady, Giglio and Agurs is the following three prerequisites necessary to make out a Brady violation: (1) the evidence at issue must be favorable to the accused either because it is exculpatory, or because it is impeaching; (2) that evidence must have been suppressed by the State, either willfully or inadvertently; and (3) prejudice must have ensued.

This significant curtailment of Brady notwithstanding, the Agurs Court emphasized that a prosecutor is a minister of justice and not just an advocate, and “this responsibility carries with it specific obligations to see that the accused is accorded procedural justice and that guilt is decided upon the basis of sufficient evidence, including consideration of exculpatory evidence known to the prosecutor.”

Agurs drew its emphasis from Brady language that disclosure is required when the evidence is both “favorable” to the defense and is “material” to either guilt or punishment. A decade after Agurs and two years after the Model Rules, the Supreme Court reinforced the “materiality” standard set forth in Agurs, perhaps to diminish the responsibility of prosecutors to disclose favorable evidence to the defense. In Bagley v. United States, the Court held that evidence is material if it creates a “reasonable probability” that its disclosure would have altered the outcome of verdict. The Bagley Court said that a “reasonable probability” is “a probability sufficient to undermine the confidence in the outcome;” and to reach such a conclusion, the reviewing court must go beyond the mere probative value of the suppressed evidence and consider the cumulative effect of the suppressed evidence in light of all the other evidence. And that is a tough nut to crack.

In Bagley, a narcotics and firearms case, the Government had two principal witnesses, both of whom were private security guards. Three weeks prior to trial the defense filed a discovery motion requesting any “deals, promises or inducement made to witnesses in exchange for their testimony.” In its response to this request, the Government did not disclose any deals, promises or inducements given to the two witnesses. In fact, the Government provided the defense with affidavits signed by the two witnesses stating they had not been offered any rewards or promises of reward in exchange for their testimony. Following his conviction, Bagley filed a Freedom of Information Act request concerning the Government’s relationship with the two witnesses and discovered that the Government had indeed provided remuneration to the witnesses in exchange for their testimony.

In upholding the defendant’s conviction, the Bagley Court held that if the withheld evidence was a “constitutional error,” it was “the Government’s failure to assist the defense by disclosing information that might have been helpful in conducting the cross-examination [of the two witnesses] … [but] such [a] suppression of evidence amounts to a constitutional violation only if it deprives the defendant of a fair trial. Consistent [with our position in Agurs], a constitutional error occurs and the conviction must be reversed, only if the evidence is material in the sense that its suppression undermines confidence in the outcome of the trial.”

In effect, the materiality requirement of both Agurs and Bagley had the effect, if not the intent, of diminishing the “Ethical Considerations” of the Model Code and the “Responsibilities” of the Model Rules directed toward prosecutors. The sum of the two cases, in stark contrast to Mooney, Berger, Napue and Brady, allows prosecutors to violate the law and their professional ethics in cases in which they believe evidence of guilt is reasonably probable.

This inevitably raises the question: what can be done to hold prosecutors accountable when they engage in unlawful and/or unethical conduct that does not result in reversal of conviction? The answer, quite simply, is not much. As University of Arizona College of Law Professor, Ted Schneyer, wrote in a 1996 Fordham Law Review article, “[T]he ABA writes ethics codes and state supreme courts give them legal effect.”

At the outset, it must be noted that the Supreme Court, in Imbler v. Pachtman, held that prosecutors enjoy “absolute immunity” for any misconduct related to their “prosecutorial function.” Imbler was decided in 1976, three months before Agurs and two months after Moore. And the Supreme Court earlier this year, 2011, in Connick v. Thompson, held that the municipality for which prosecutors are employed cannot be held liable for monetary damages for unlawful or unethical conduct by prosecutors absent a showing that the prosecutorial misconduct was engaged in pursuant to an “official municipality policy,” which requires a showing that municipality lawmakers, such as a district attorney’s office, engaged in wrongful decision-making practices so “persistent and widespread as to practically have the force of law.” That’s an impossible nut to crack.

As Ms. Kurcias put it, “while the Supreme Court requires prosecutors to disclose certain evidence to the defense, consequences for withholding such evidence do not exist in the criminal justice system. In fact, the Supreme Court has granted prosecutors absolute immunity from civil liability for failure to disclose exculpatory evidence. Thus, prosecutors do not fear being sued for withholding evidence and the Brady Rule is consequently weakened. As one commentator stated, ‘[i]sofar as federal law is concerned, we have no reason at all to believe, under these consequences, that prosecutors will not continue to ignore their constitutional obligation under Brady. Consequently, encouragement for prosecutors to adhere to this requirement must be found elsewhere. Ideally, the ethics rules would supply this incentive.’”

But, given the historical resistance of state bar associations to imposing disciplinary sanctions on rogue prosecutors who engage in Brady misconduct, even when they are “repeat offenders, this incentive is weak. Insulated from civil liability with absolute immunity and facing reversal of conviction only in cases where guilt is not compelling, prosecutors have been granted by the Supreme Court and state bar disciplinary committees a license to engage in unlawful and unethical misconduct with virtual impunity. This was evidenced by an article in the Washington & Lee Law Review by University of Utah Law Professor Daniel S. Medwed who referenced a 1999 study of Illinois state criminal convictions reversed as a result of prosecutorial misconduct. Of the 326 reversals, only two prosecutors were subject to disciplinary sanctions and a third was dismissed from the State Attorney’s Office. Likewise, other prominent legal scholars, such as renowned Professor of Legal Ethics Fred Zacharies, have written that “the body of cases [involving disciplinary sanctions] is not entirely negligible.”

The New York-based Innocence Project says some of the 280 DNA exonerations in this country involved prosecutorial misconduct. The project’s executive directors, Barry Scheck and Peter Neufeld, conducted a study of the first 74 DNA-based exonerations and found that 37 percent involved suppression of exculpatory evidence, 25 percent involved the knowing use of false testimony, and 11 percent involved the use of coerced testimony.

Professor Medwed also had this to say about the lack of disciplinary sanctions in these kinds of cases: “… disciplinary bodies hardly ever sanction prosecutors who disregard Brady’s precepts. Two decades ago, Richard Rosen studied written disciplinary decisions nationwide and dug up only nine cases in which a prosecutor had ever been referred to the ethics board for suppressing exculpatory evidence. Just one of those nine disciplinary proceedings ended with a sanction, and merely a suspension at that. Rosen’s research methodology included a survey sent to disciplinary representatives in every state. Thirty-five of the forty-one states that responded to the query indicated that no formal complaints had ever been filed alleging Brady-type misconduct.

Joseph Weeks followed up on Rosen’s research ten years later and discovered a similar pattern. Weeks found seven cases where prosecutors had been referred to disciplinary bodies for purported Brady violations. Four of these referrals resulted in sanctions, the most severe of which was a six-month suspension. These findings about the paucity of discipline imposed on prosecutors for Brady violations, even the rarity of allegations themselves, are startling. Nothing suggests things have changed much in recent years. On the contrary, data produced by groups across the country suggest that disciplinary agencies stand idly by as the tide of Brady violations, if not rising, continues unabated.”

Two years before the results of Rosen’s study was released, an en banc panel of the Texas Court of Criminal Appeals in Ex Parte Adams, found that Dallas’ First Assistant District Attorney Doug Mulder had suppressed favorable evidence, knowingly used perjured testimony, and deceiving the trial court during the defendant’s capital murder trial. The defendant, Randall Dale Adams, whose wrongful conviction for the murder of a Dallas police officer became known through the nationally acclaimed documentary A Thin Blue Line, spent twelve years under a death sentence before his conviction was set aside. Mulder, whose misconduct was clearly detailed by the Court of Criminal Appeals, never faced any disciplinary action for sending an innocent man to death row—a man who came within 72 hours of execution.

In Banks v. Dretke the Supreme Court confronted yet another Texas case involving a Brady violation. Delma Banks, then twenty-one years of age, was put to trial in September 1980 in Bowie County for the murder of a 16-year-old teenager. He was convicted of capital murder and sentenced to death. Banks was strapped to the gurney in the state’s death chamber before receiving a stay from the Supreme Court just 10 minutes before the lethal cocktail was to be administered. Banks’ conviction was based primarily on two key witnesses; and as the Supreme Court pointed out in its 2004 decision, “the State withheld evidence that would have allowed Banks to discredit [these] two essential prosecution witnesses. The State did not disclose that one of those witnesses was a paid police informant, nor did it disclose a pretrial transcript that the other witness’ trial testimony had been intensively coached.” In fact, the prosecutor told the jury that the coached witness had “brought you absolute truth.”

Writing for the majority opinion, Justice Ruth Bader Ginsburg was particularly critical of the arguments State attorneys made before the Court: “The State here nevertheless urges, in effect, that ‘the prosecution can lie and conceal and the prisoner still has the burden to … discover the evidence,’ so long as the ‘potential existence’ of a prosecutorial misconduct claim have been detected. A constitutional rule thus declaring ‘prosecutor may hide, defendant must seek,’ is not tenable in a system constitutionally bound to accord defendants due process. ‘Ordinarily, we presume that public officials have properly discharged their official duties.’ We have several times underscored the ‘special role played by the American prosecutor in the search for truth in criminal trials. Courts, litigants, and juries properly anticipate that ‘obligations [to refrain from improper methods to secure a conviction] … plainly rest[ing] upon the prosecuting attorney, will be faithfully observed.’ Prosecutors’ dishonest conduct and unwarranted concealment should attract no judicial approbation.”

Clearly, some Texas prosecutors, like those California prosecutors who argued before the Supreme Court in Mooney, believe that “absolute immunity” and “harmless error” are not enough. They want the Supreme Court to grant them an unfettered license to “lie and conceal,” even when it means potentially innocent defendants will be executed or spend the rest of their lives in prison. As we discussed in two previous posts (here and here), that almost happened to Michael Morton who was wrongly convicted and sentenced to life imprisonment for the 1986 murder of his wife. Two Williamson County, Texas, prosecutors, Ken Anderson and Mike Davis, withheld material evidence that would have, at a minimum, surely resulted in a not guilty verdict. And to make matters even worse, current Williamson County District Attorney John Bradley fought for six years to prevent a key piece of evidence from being DNA tested—and when the evidence was eventually tested, it not only exonerated Morton but identified the real killer.

The Texas Court of Criminal Appeals officially declared Morton “innocent” this past October while the Texas State Bar announced it had launched an “investigation” into the conduct of all the prosecutors involved in the case. In the heat of the Morton controversy in October, the Texas Tribune reported on the issue of whether current state discovery laws should be expanded:

“Prosecutors, though, have not been the only ones to object to expanding discovery, said Rob Keppel, executive director of the Texas District and County Attorneys Association. Defense lawyers, he said, have objected to legislation that would also require them to turn over evidence to prosecutors.

“What is more, Keppel said, a new discovery law would not have prevented the kind of misconduct alleged in the Morton case. If a prosecutor or investigator decides to withhold key information even in the face of the Brady rules that already require its release, he said, a new state law will not spur their compliance.

“’If somebody didn’t play fair back then,’ he said, ‘I’m not sure exactly what law we change would address it.’”

But the real issue is not sharing evidence—the real issue is whether, as Justice Ginsburg noted, prosecutors should be allowed to “lie and conceal.” Many Texas district attorneys have an “open file” office policy which is not required under Moore. Still, that does not insure prosecutors have not lied or concealed material favorable evidence. There is a reasonable solution to the “lie and conceal” prosecutorial tactics. It was expressed by Grits for Breakfast, and we share his point of view:

“In this writer’s view, the best, simplest fix would be to eliminate ‘absolute immunity’ for prosecutors. While Texas legislators can’t overrule federal decisions (‘absolute immunity’ exists in no statute but is a judicial creation from the U.S. Supreme Court), the Lege would have to create its own version of the federal civil rights statute (USC 42, Sec. 1983) to allow civil suits in state court against prosecutors engaged in misconduct. State Rep. Lon Burnam filed a bill last sessions which would do just that in reaction to the Anthony Graves case …

“There was a committee substitute offered on that bill that would have given prosecutors ‘qualified immunity,’ which is the same as for police officers, instead of eliminating immunity entirely. Personally I’d prefer to no immunity – the same standard under which defense attorneys operate. Cops’ get qualified immunity – which still protects them from virtually all civil liability – because they make split-second decisions later second guessed in court. But for intentional misconduct, in rare instances, they can still be held liable. By comparison, prosecutors have all the time in the world to make decisions, or correct them. Ironically, this suggestion could be seen as a slap in the face to the Obama Administration, which has adamantly argued that prosecutors shouldn’t be held liable in civil court for egregious, intentional misconduct and there is no ‘free-standing’ due process right not to be framed.”

On November 11, 2011 the Dallas Morning News editorialized against “rogue prosecutors” in Texas. Besides the Michael Morton travesty, the newspaper cited the following cases in which individuals were wrongfully convicted by such prosecutors: (1) Anthony Graves, who was framed by Burleson County prosecutors, spent 18 years in prison, including death row, before being officially exonerated last year and awarded $1.4 million as compensation for the “bogus murder conviction;” (2) Dale Lincoln Duke, now 60, was released in Dallas County on November 4, 2011 after spending 14 years in prison on child abuse charges because prosecutors withheld evidence that the child’s grandmother thought the girl was lying. Duke was released after a state trial judge declared his conviction “unjust;” and (3) Chelsea Richardson, 27, was released from death row after a November 1, 2011 appeals court decision found prosecutors had withheld evidence that a different defendant may have been the “mastermind” in the murder of her parents–prosecutors had secured a death sentence by portraying Richardson as the “mastermind” behind the double murder—and she will now be sentenced to life imprisonment, just as her boyfriend was.

Don’t get us wrong. There are states with just as disgraceful history as Texas when it comes to Brady violations. For example, Ken Armstrong and Maurice Possley, writing in the Chicago Tribune in January 1999, produced an investigative piece titled “The Verdict: Dishonor.” Their study examined 67 death row cases granted new trials because of Brady violations. The reporters found that 24 of the condemned inmates were freed because charges were dismissed, or they were acquitted, or granted full pardons. Three pled guilty in exchange for sentences that freed them immediately while five others were re-convicted but received sentences less than death. Only four of the 67 were re-sentenced to death.

These case examples of Brady violations underscore what is no longer an anomaly but is fast becoming a norm in our criminal justice system: prosecutorial misconduct. It has become the single worse shame and disgrace in our system of justice: the “ministers of justice” charged with seeking and honoring the truth arguing that they enjoy the right to “lie and conceal” in pursuit of criminal convictions. Professor Bennett L. Gersham, writing in the South Texas Law Review, summed up this disturbing problem as follows:

“Making prosecutors accountable for violations of Brady has not been a success. To be sure, bar associations and grievance committees have the power to discipline prosecutors for violations of ethical rules. However, most commentators agree that professional discipline of prosecutors is extremely rare. The absence of significant discipline of prosecutors is particularly noteworthy in cases in which prosecutors intentionally suppress evidence that leads to a reversal of a defendant’s conviction and a stinging rebuke by a court of the prosecutor’s misconduct. Although one would realistically expect disciplinary agencies to proceed aggressively against such unscrupulous conduct, such is not the case. Moreover, of all the ethical rules relating to the conduct of a prosecutor, the ethical rule governing a prosecutor’s suppression of evidence is the most explicit and easiest to enforce. However, when faced with this ‘most dangerous conduct,’ disciplinary bodies typically look the other way.”

By either failing or refusing to impose disciplinary sanctions on rogue prosecutors, especially those who send innocent persons to death row, disciplinary agencies have become complicit in this increasing pattern of unethical conduct and criminal wrongdoing by prosecutors. The time has come for that to change…

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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John T. Floyd Law Firm IconJohn T. Floyd Law Firm

3730 Kirby Drive # 750, Houston

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  • Avatar Jeannette Young ★★★★★ 3 weeks ago
    If you have hired attorneys that meet the Webster dictionary definition, ie: "Attorney " is a person that has a law degree, will not be totally honest, can take your money … More and not earn it, will put you off until he is ready to talk to you, and/or never study your case to be able to defend you. Mr. Floyd is the only attorney that doesn't fit that definition!! You will be delighted to have Mr. John Floyd in your corner! Not one attorney that I have ever met that would ever return a check that I sent to him, because he said I paid him too much! Wow! That right there should tell you something about his integrity!!!!! He has a very calm demeanor and doesn't stretch the truth even if you don't want to hear it, he will tell you the truth. Call and set up an appointment with him and judge for yourself. You are wasting time and money on any other attorney, just hire the best, Mr. Floyd.
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  • Avatar Mark J ★★★★★ a year ago
    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 & Chris helped my family member get a reduced charge and acceptable plea agreement in place. Their compassion, attention to every detail was what helped carry the day.Truly … More the best of the best.P
  • Avatar Summer A ★★★★★ a year ago
    Mr. Floyd is both ethical and loyal to his clients; two qualities that are hard to find specially in lawyers. I'd definitely recommend him to anyone.Positive
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  • Avatar Abdulraouf Haj ★★★★★ a year ago
    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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  • Avatar Joffre Cross II (Jeff) ★★★★★ 2 years ago
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  • Avatar 9salmon ★★★★★ 2 years ago
    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.
  • Avatar Ken R ★★★★★ 2 years ago
    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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  • Avatar Jeff Vaughn ★★★★★ 2 years ago
    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.
  • Avatar Reginald Bell ★★★★★ 2 years ago
    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.
  • Avatar Debby Griffin ★★★★★ 2 years ago
    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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  • Avatar Gabriela ★★★★★ 2 years ago
    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.
  • Avatar Randy Rich ★★★★★ 2 years ago
    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.
  • Avatar Robert Robinson ★★★★★ 2 years ago
    I have been calling to get some legal advice pertaining to gun rights. A few legal offices would not even take my call because quote " your not a client and Im losing money. … More I I called John T. Floyd Law Firm and they were not only able to answer my question, but gave great detail information, and further elaborated on their answer. I hope I do not have to use them in the future, but if I do need to, they will be my first call.
  • Avatar Tyler Barr ★★★★★ 2 years ago
    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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  • Avatar Clint B ★★★★★ 2 years ago
    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.
  • Avatar Huey B ★★★★★ 2 years ago
    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 ⭐️.
  • Avatar Ben Blackman ★★★★★ 2 years ago
    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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  • Avatar Manny Figueroa:: ★★★★★ 2 years ago
    Very helpful highly recommended for any Question / case will definitely keep he's name and number for any other legal advice
  • Avatar Rosalinda Garcia ★★★★★ 2 years ago
    Excellent service and a lawyer that doesn't lie. He does what he says. JW recommends him.
  • Avatar Cord Ary ★★★★★ 2 years ago
    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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  • Avatar William Shaw (Bill) ★★★★★ 2 years ago
    Im impressed. This guy was polite and professional and most important...he listened.
  • Avatar Mohammed Masood ★★★★★ 2 years ago
    Good experience and very good lawyer
  • Avatar Joseph Floyd ★★★★★ 2 years ago
  • Avatar Arsalan Safiullah ★★★★★ 2 years ago
  • Avatar Elvis Maldonado ★★★★★ 2 years ago
    Positive
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  • Avatar Tylor St. Clair ★★★★★ 3 years ago
    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!
  • Avatar Andrew Vo ★★★★★ 3 years ago
    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.
  • Avatar Banning Lary ★★★★★ 3 years ago
    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!
  • Avatar Larry Green ★★★★★ 3 years ago
    I had the opportunity to read an article that Mr. Floyd wrote and it was very interesting. I called him about the article and advice concerning a similar situation. He not only gave … More me excellent advice, he pointed out not just what I wanted to hear but what I needed to hear concerning my situation. The Good, The Bad and The ugly in a manner or speaking. He spoke with an open and honest heart with information to help me and not just to get a client.
  • Avatar Jackie Cohen ★★★★★ 3 years ago
    If you are in trouble and need a lawyer, contact the John T. Floyd law firm. Some of the best lawyers in Texas work there! Understanding and helpful lawyers and staff that will do all … More they can to help you 😊
  • Avatar It’s Me ★★★★★ 3 years ago
    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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  • Avatar I’m Home ★★★★★ 3 years ago
    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.
  • Avatar Tad Nieschwietz ★★★★★ 3 years ago
    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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  • Avatar Maher Abbara ★★★★★ 3 years ago
    Very professional, great quality work, and very friendly and helpful. Overall, their service is phenomenal. I recommend Mr. Floyd to anyone.
  • Avatar Thomas McLaughlin ★★★★★ 3 years ago
    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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  • Avatar Zarrie Adkins ★★★★★ 3 years ago
    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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  • Avatar Keisha Gaches ★★★★★ 3 years ago
    He was very truthful and honest with us very great man I would recommend him and we would use him again
  • Avatar Samyra Carrasquillo ★★★★★ 3 years ago
    Very professional honest and works hard currently working my husband’s appeal I pray he does his best workPositive
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  • Avatar Raul Perez ★★★★★ 3 years ago
    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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  • Avatar Johnny Johnson Jr ★★★★★ 3 years ago
    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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  • Avatar Dana Adkison ★★★★★ 3 years ago
    I would highly recommend Mr Floyd. He was very helpful and knowledge with a legal question I had.Positive
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  • Avatar Crecencio Fabian ★★★★★ 3 years ago
    He explained my case better then any other lawyerPositive
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  • Avatar Barry Lewis ★★★★ 3 years ago
    Very informative
  • Avatar Ismael Flores ★★★★★ 3 years ago
  • Avatar Haley Danielle Lummus ★★★★★ 3 years ago
  • Avatar Eddie Villarreal ★★★★★ 3 years ago
  • Avatar Neil Productions ★★★★★ 4 years ago
    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.
  • Avatar S A ★★★★★ 4 years ago
    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🙏🏼🙏🏼
  • Avatar Gary Watch ★★★★★ 4 years ago
    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.
  • Avatar Saman Daftarian ★★★★★ 4 years ago
    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.
  • Avatar calvin robinson ★★★★★ 4 years ago
    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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  • Avatar Alan Howk ★★★★★ 4 years ago
    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.
  • Avatar CMCustom Cycles ★★★★★ 4 years ago
    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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  • Avatar Greg Page ★★★★★ 4 years ago
    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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  • Avatar Kristen Rankin ★★★★★ 4 years ago
    Knows his stuff and well respected with DA and judges. I have referred him a couple times and every client has been satisfied
  • Avatar Kedar Puranik ★★★★★ 4 years ago
    John is beyond knowledgeable! If I decide to pursue my case any further I would only have him represent me.
  • Avatar Joseph Sivadon ★★★★★ 4 years ago
    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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  • Avatar Lex Strider ★★★★★ 4 years ago
    Absolutely a very professional lawyer. Very well read in the current law and more than willing to help if needed.
  • Avatar karim khalifa ★★★★★ 4 years ago
    Mr. John he’s a professional he knows what he’s doing and he’s patient they recommend Him stronglyPositive
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  • Avatar James Haggard ★★★★★ 4 years ago
    Great service, very knowledgable and happy to help with any questions I had
  • Avatar David Sustaita ★★★★★ 4 years ago
    Quick to action and helpful and knowledgeable with entertainment industry based issues!
  • Avatar Chad Groves ★★★★★ 4 years ago
    Responded on a holiday week. Very knowledgeable and reassuring.
  • Avatar Mark Fein ★★★★★ 4 years ago
    Very professional
  • Avatar Bthomason903 Bthomason903 ★★★★★ 4 years ago
  • Avatar Anton Jasser ★★★★★ 4 years ago
  • Avatar Alma Garza ★★★★★ 4 years ago
  • Avatar Victory 2020 ★★★★★ 6 years ago
    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!!!!!!
  • Avatar Alma Garcia Cunningham ★★★★★ 6 years ago
    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.
  • Avatar Rajiv Patel ★★★★★ 6 years ago
    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!!!
  • Avatar Jose Tapia ★★★★★ 6 years ago
    I really felt like the team cared about my case and am super satisfied with the outcome. Would not recommend anyone else!
  • Avatar Sagar Patel ★★★★★ 6 years ago
    These guys do amazing work and have phenomenal service! Hands down best in the Houston area!!
  • Avatar RAYNINN ★★★★★ 6 years ago
    John and Chris are true professionals! Love those guys like family!
  • Avatar Virginia Martin ★★★★★ 6 years ago
    Mr. Floyd and his team are very knowledgeable, informative, and helpful.
  • Avatar Darla Latham ★★★★★ 6 years ago
    A team you can depend on to stand up and fight for you to prove the truth the whole truth!
  • Avatar Veronica Elorza ★★★★★ 6 years ago
  • Avatar Karetta Lux ★★★★★ 7 years ago
    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!
  • Avatar GM ★★★★★ 8 years ago
    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.
  • Avatar Sandra Bivens ★★★★★ 8 years ago
    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
  • Avatar Mike Kittelson ★★★★★ 8 years ago
    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.
  • Avatar Robert Hair ★★★★★ 8 years ago
    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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