DA dismissed from Floyd trialPublished 11:53pm Friday, November 9, 2012
Nearly two weeks after murder suspect Cedric Floyd escaped the Escambia County jail, he was back in court with his attorneys, who sought to have the local district attorney’s office removed from the case.
Floyd’s defense attorneys at first requested that charges against him be dismissed — but Circuit Judge Bert Rice dismissed the motion.
Defense attorneys Charles Johns and Kevin McKinley said communication between their office and the client had been in the possession of the district attorney’s office, marking a violation of the attorney/client privilege.
“After Floyd escaped, he left behind several legal documents,” Johns told Rice. “It was gathered and delivered to the district attorney’s office and it is no longer in their possession. It is highly inappropriate. At the very least the DA should be excluded from prosecution in the case and at best there should be a dismissal of the cases.”
Rice asked Johns if he was alleging there had been a professional conduct violation in the case.
“The DA accepted responsibility for those attorney/client materials,” Johns said. “(Floyd’s) personal belongings should not have been turned over to the DA. The pending cases should be dismissed. Case law says it’s a violation.”
District Attorney Steve Billy took the stand and declared no information contained in materials belonging to Floyd delivered to his office had been viewed by any personnel or attorneys.
“The sealed packet was never opened or looked at,” Billy said. “I don’t know what’s in there and I don’t care what’s in there. It was returned to the sheriff’s office in the same condition it was received. It was never opened or tampered with or reviewed.”
After hearing additional testimony in regard to the packet of documents belonging to Floyd, Rice ruled on the motion to dismiss the case on grounds of a breech in the attorney/client privilege.
“I see no impropriety,” Rice said. “I see nothing to indicate to this court that shows there was any viewing or tampering. To the contrary. There is no evidence anyone in the D.A.’s office went through it to obtain information.”
The motion to dismiss the capital murder and other charges in the Floyd case was denied.
In the motion to have the district attorney’s office excluded from the prosecution of the cases in question, Rice heard evidence regarding contact with the defendant by members of the counselors employed in the office.
“This is a motion to disqualify because of prior representation of this defendant?” Rice asked.
Johns and McKinley said yes and began presenting evidence to support their request for the motion to dismiss.
Johns established employment of Todd Sterns, Jeff White and Eric Coale in the district attorney’s office through testimony from Billy.
In reference to Sterns, White and Coale, Johns contended the three had each represented Floyd on separate occasions over an eight-year period.
Each of the attorneys testified they were public defenders at the times they represented Floyd in the past.
Johns said with that prior contact with Floyd, it would be inappropriate for them to continue to prosecute the capital murder case, since the district attorney’s office would be seeking the death penalty in the case.
“Are you asking the D.A.’s office be prohibited from prosecuting your client,” Rice as Johns.
Johns said yes in response to the judge citing there was no cure for the situation.
“Capital murder is our biggest concern,” Johns said. “Because information from other cases could be used in that case.”
After considering testimony from attorneys for the prosecution, Rice came to a decision to dismiss the district attorney’s office in continuing the prosecution in the capital murder case against Floyd.
“I see no violation or prejudice at this point to the defendant,” Rice said. “However, if (the case against Floyd) gets as far as sentencing, these prior cases could be raised. With these assistant district attorneys involved, there could be a prejudice for the client. Therefore this court makes the ruling that the district attorney’s office no longer be the prosecutional attorneys in these cases.”
McKinley said the decision on who would be the prosecuting attorney in the capital murder case against Floyd had not been made — but he and Johns plan to do their job in defending the accused man. “We will aggressively continue to defend Mr. Floyd’s rights,” McKinley said. “We are going to do our job.”
In other instances where a district attorney’s staff has been dismissed from prosecuting cases, district attorneys from other districts or lawyers from the attorney general’s office have been called on to prosecute cases.