Matter of a Member of

119 A.3d 1283, 2015 Del. LEXIS 363, 2015 WL 4521209
Supreme Court of Delaware·Decided July 27, 2015·No. 303, 2015·Published·Cited by 4 cases

Opinions

PER CURIAM.

This in an attorney disciplinary proceeding involving charges of professional' misconduct against the Respondent, R. David Favata. A panel of the Board on Professional Responsibility (The “Board”) found that Favata violated the following Delaware Lawyers’ Rules of Professional Conduct: one violation each of Rule 3.3(a)(1) (knowingly made a false statement of fact to a tribunal); Rule 3.4(e) (stated a personal opinion as to the credibility of a witness and/or the guilt of an accused); Rule 3.5(d) (engaged in conduct intended to disrupt a tribunal and/or in undignified and discourteous conduct that was degrading to the tribunal); and Rule 8.4(c) (engaged in conduct involving dishonesty, deceit or misrepresentation); and three violations of Rule 8.4(d) (engaged in conduct prejudicial to the administration of justice). The Board recommended that Favata receive a Public Reprimand. Neither Favata nor the Office of Disciplinary Counsel has filed any objections to the Board’s findings and recommendation.

We have concluded that the Board’s factual findings of seven ethical violations are supported by the record. We have determined that the appropriate sanction is a suspension for six months and one day. This sanction will require Favata to establish his rehabilitation before he can be readmitted to practice law as a member of the Bar of this Court.1

Background Facts2

Favata is a member of the Bar of the Supreme Court of Delaware, having been [1285] admitted in 1988. At all times relevant hereto, Favata was a Deputy Attorney General employed by the Delaware Department of Justice in Kent County.

On July 6, 2010, the State of Delaware indicted Isaiah W. McCoy (“McCoy”) on charges of Murder in the First Degree (Intentional Murder), Murder in the First Degree (Felony Murder), Possession of a Firearm During the Commission of a Felony (two counts), Robbery in the First Degree, Possession of a Firearm by a Person Prohibited, Kidnapping in the First Degree, Conspiracy in the Second Degree and Theft of a Motor Vehicle. The State noticed its intent to seek the death penalty. Favata and his co-counsel prosecuted McCoy on behalf of the State during the guilt and penalty phases of McCoy’s trial.

On the second day of jury selection, the trial judge granted McCoy’s application to proceed pro se and designated McCoy’s court-appointed defense counsel as “Standby Counsel.”

The jury convicted McCoy of two counts of Murder in the First Degree, two counts of Possession of a Firearm during the Commission of a Felony and one count each of Robbery in the First Degree and Conspiracy Second Degree, all counts charged except for the count alleging motor vehicle theft.3 The trial court sentenced McCoy to death.

Appeal and Reversal

McCoy appealed his convictions and sentence to this Court. In Isaiah W. McCoy v. State of Delaware,4 we held that reversible error occurred when Favata engaged in prosecutorial misconduct by improperly vouching for the credibility of a State’s witness, Rekeisha Williams (“Williams”).5 Favata stated:

Objection, Your Honor. Again, this witness has testified she didn’t even know this guy. She hasn’t seen him. She didn’t talk to him. She obviously hasn’t spoken to the defendant since he shot her boyfriend. How would she know anything about Deshaun White; what he said to anybody.6

“By giving his own opinion on the guilt of McCoy,” Favata improperly vouched for Williams’ testimony by expressing his personal opinion that McCoy was guilty7 and “implicitly and inappropriately corroborated Williams’ testimony and endorsed her credibility.”8 “[Favata’s] vouching preju-dicially affected McCoy’s substantial rights to a fair trial and require[d] the reversal of McCoy’s convictions.”9

In addition to vouching, this Court held that Favata engaged in a pattern of unprofessional conduct throughout the trial, which included improper commentary,10 attempts to prevent Standby Counsel from providing assistance to McCoy,11 and disparaging remarks about McCoy with numerous demeaning comments focused on McCoy’s self-representation.12 We held, as follows:

Although most of this misconduct occurred outside the jury’s presence, the conduct set a tone for the trial that was [1286] disturbing and unacceptable and increased the potential that the jury would decide the case by discounting the defendant’s version of events for inappropriate reasons, a factor made even more important given the centrality of witness credibility in this case. That conduct also was of a nature calculated to hamper McCoy’s ability to present his defense effectively, another relevant factor in persuading this Court that we cannot conclude this instance of vouching can be deemed harmless. Accordingly, application of the Hughes test establishes the prosecutor’s vouching prejudicially affected McCoy’s substantial rights to a fair trial and requires the reversal of McCoy’s convictions.13

This Court concluded that Favata’s “conduct during McCoy’s trial frequently did not comport with [the] fundamental professional requirements [set forth in Rules 3.5 and 3.8].”14 Citing Rule 3.5(d) and the American Bar Association’s Standards governing prosecution and defense functions, we stated:

The Delaware Lawyers’ Rules of Professional Conduct state that a lawyer shall not “engage in conduct intended to disrupt a tribunal or engage in undignified or discourteous conduct that is degrading to a tribunal.”
In keeping with the American Bar Association’s standards governing prosecution and defense functions, we have held that it is improper for the prosecutor to disparage defense counsel or ‘sarcastically to mock the defense case.... ’ While a prosecutor “may strike hard blows, he is not at liberty to strike foul ones. It is as much his duty to refrain from improper methods calculated to produce a wrongful conviction as it is to use every legitimate means to bring about a just one.”

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Matter of a Member of, 119 A.3d 1283, 2015 Del. LEXIS 363, 2015 WL 4521209 (Del. 2015).

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