Legal Ethics

Former prosecutor is suspended for demeaning remarks, false denial about snitch threat

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A former Delaware prosecutor has been suspended from law practice for his conduct during a death penalty trial that included disparaging and demeaning remarks about the pro se defendant.

The lawyer, former Deputy Attorney General R. David Favata, was suspended for six months and a day, which means he can’t be readmitted to the bar until he shows rehabilitation, report Delaware Online and the Legal Profession Blog.

During the trial, Favata improperly vouched for a witness, made improper commentary, tried to prevent standby counsel from providing assistance to the defendant, and made “disparaging remarks about [the defendant] with numerous demeaning comments” focused on the defendant’s self representation, the court said in its ethics decision.

Favata also denied to the trial judge that he made a threat during a recess to elicit testimony that the defendant was a snitch. Favata later admitted that he intended for the defendant to overhear the remarks.

Favata’s conduct contributed to the Delaware Supreme Court’s decision in January to overturn the conviction and death sentence for the defendant, Isaiah McCoy. The supreme court said then that most of Favata’s misconduct occurred outside the presence of the jury, but his conduct “set a tone for the trial that was disturbing and unacceptable.”

The January opinion found that Favata created reversible error when he opined on McCoy’s guilt and vouched for the credibility of a state’s witness in an objection to McCoy’s cross-examination of the witness. McCoy said, “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.”

The January decision cited these remarks by Favata:

• During Favata’s re-cross-examination of McCoy, Favata said, “You had all night to think that up? … All night to think about how to respond and rehabilitate your answers from yesterday, didn’t you?”

• During a discussion of McCoy’s attire outside the presence of the jury, Favata stated, “I don’t care. You can dress him up. He’s still a murderer.” At one point, he reproached McCoy and said, “Start acting like a man.”

• Outside the presence of jurors, Favata made demeaning commentary about McCoy’s choice to represent himself, including, “Clearly, the defendant doesn’t comprehend the concept of accomplice liability” and, “Obviously, the defendant doesn’t know what the word coercion means.”

The trial judge cautioned Favata about his remarks several times, including during the penalty phase of the trial.

“Listen,” the judge said. “I’m reaching a level which I am very upset [about] [t]he way the prosecution is handling this case. I don’t appreciate smart-ass remarks, pardon my French but that’s what it is, [Favata]. You’re being disrespectful to the court as well as to Mr. McCoy and witnesses. Your antics in this trial have been totally disrespectful, in my view, of what properly should happen in a court procedure, particularly a serious matter like this. I don’t appreciate off-the-cuff remarks. I don’t appreciate your making frivolous statements in my view or matters which should be taken seriously. I don’t like the cynicism that’s being generated. I don’t like the facial expressions that you make sometimes.

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