119 A.3d 1283
Del.2015Background
- R. David Favata, a Delaware Deputy Attorney General (admitted 1988), prosecuted Isaiah W. McCoy in a capital murder trial where McCoy elected to proceed pro se with standby counsel.
- During trial Favata (a) vouched for a State witness and expressed an opinion on McCoy’s guilt, (b) made repeated sarcastic and disparaging remarks toward McCoy and his standby counsel, and (c) during a recess made intimidating "Omerta" comments intended for McCoy to overhear.
- McCoy was convicted, sentenced to death, and appealed; this Court reversed the convictions based on prosecutorial vouching and a pattern of unprofessional conduct that prejudiced McCoy’s rights (McCoy v. State).
- At a disciplinary proceeding the Board found Favata committed seven violations of the Delaware Lawyers’ Rules of Professional Conduct, including false statements to the court, vouching, disruptive/undignified conduct, dishonesty/misrepresentation, and multiple counts of conduct prejudicial to the administration of justice.
- Favata admitted several violations but initially denied and later partially admitted making the Omerta comments; the Prothonotary corroborated McCoy’s account, undermining Favata’s courtroom statements denying communication.
- The Board recommended a public reprimand, but the Supreme Court imposed a suspension of six months and one day, requiring demonstration of rehabilitation for readmission, emphasizing the Omerta comments as a significant aggravating factor.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Did Favata make false statements to the tribunal in violation of Rule 3.3(a)(1)? | ODC: Favata lied when he told the court he was not speaking to McCoy and characterized McCoy as merely "eavesdropping." | Favata initially denied addressing McCoy, later admitted intending McCoy to hear some remarks and partially admitted statements. | Court and Board: Yes; Favata knowingly made false statements and failed to correct them. |
| Did Favata impermissibly vouch and state personal opinion on witness credibility/guilt (Rule 3.4(e))? | ODC: Favata vouched for a State witness and expressed belief in McCoy’s guilt, affecting fairness. | Favata admitted expressing personal opinion at trial. | Court: Yes; vouching was prosecutorial misconduct and prejudicial, warranting reversal on appeal and discipline. |
| Did Favata engage in conduct disrupting or degrading the tribunal (Rule 3.5(d))? | ODC: Favata’s sarcastic, disparaging, and obstructive conduct toward pro se defendant and standby counsel degraded the tribunal. | Favata admitted some misconduct but ODC proceeded on theory of undignified/discourteous conduct rather than disruption. | Board/Court: Yes; Favata’s pattern of unprofessional conduct was undignified and degrading to the tribunal. |
| What sanction is appropriate for the ethical violations? | ODC: Under ABA Standards (esp. Standard 6.22), suspension is presumptive for knowing violations causing interference; prior similar cases warranted suspension. | Board recommended public reprimand considering mitigating factors; Favata sought lesser sanction. | Court: Suspended Favata for six months and one day (rehabilitation required for readmission); Omerta comments were significant aggravation. |
Key Cases Cited
- McCoy v. State, 112 A.3d 239 (Del. 2015) (reversed convictions due to prosecutorial vouching and pattern of unprofessional conduct)
- In re Amberly, 996 A.2d 793 (Del. 2010) (six-month suspension for false statements to court and related misconduct)
- In re Chasanov, 869 A.2d 327 (Del. 2005) (suspension for dishonesty and false statements to tribunal)
- In re Green, 464 A.2d 881 (Del. 1983) (discipline principles regarding falsehoods and lawyer fitness)
- In re Davis, 43 A.3d 856 (Del. 2012) (discussing attorney oath and disciplinary objectives)
- In re McCann, 894 A.2d 1087 (Del. 2005) (disciplinary precedent on sanctions and professional conduct)