In the Matter of a Member of the Bar of the Supreme Court of the State of Delaware: R. DAVID FAVATA, ESQUIRE, Respondent
Submitted: July 9, 2015.
Case Closed August 12, 2015.
Upon Review of the Report of the Board on Professional Responsibility.
R. David Favata, Esquire, Respondent, Pro se.
Jennifer-Kate Aaronson, Esquire, and Kathleen M. Vavala, Esquire, Disciplinary Counsel, Wilmington, Delaware, for the Office of Disciplinary Counsel.
Before STRINE, Chief Justice; HOLLAND, VALIHURA, VAUGHN, and SEITZ, Justices, constituting the Court en banc. Vaughn, Justice, concurring in part, and dissenting in part.
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 guilty 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 re-admitted to practice law as a member of the Bar of this Court.
Favata is a member of the Bar of the Supreme Court of Delaware, having been
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. 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, 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" ). 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.
" By giving his own opinion on the guilt of McCoy," Favata improperly vouched for Williams' testimony by expressing his personal opinion that McCoy was guilty and " implicitly and inappropriately corroborated Williams' testimony and endorsed her credibility."  " [Favata's] vouching prejudicially affected McCoy's substantial rights to a fair trial and require[d] the reversal of McCoy's convictions." 
In addition to vouching, this Court held that Favata engaged in a pattern of unprofessional conduct throughout the trial, which included improper commentary, attempts to prevent Standby Counsel from providing assistance to McCoy, and disparaging remarks about McCoy with numerous demeaning comments focused on McCoy's self-representation. 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
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.
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]."  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."
The record reflects that the prosecutor mocked McCoy during cross-examination, attempted to prevent him from using his standby counsel for legal research and logistical assistance, and actively generated a level of " cynicism" that permeated the trial, to quote the trial judge. Even if some of their efforts at preventing McCoy's standby counsel from assisting him were unsuccessful and even if most of their sarcastic comments were made outside the jury's presence, the prosecutor's repetitive pattern of unprofessional conduct set a tone for trial that is inconsistent with the due process rights of a capital murder defendant.
A defendant has a right, under the Sixth Amendment to the United States Constitution, to proceed pro se in a criminal trial. . . . Prosecutorial misconduct that disparages a defendant for making the choice to proceed pro se interferes with his right to a fair trial and his right of self-representation. The record in this case reflects that the prosecutor's conduct was so demeaning and belligerent to McCoy, outside the presence of the jury, that it reasonably could have affected the effectiveness of McCoy self-representation in front of the jury.
The record reflects a pattern of unprofessional conduct by the prosecutor that impugns the integrity of the judicial process. Most of the sarcasm directed at McCoy related directly to his choice to exercise his right to defend himself under both the Sixth Amendment to the United States Constitution and Article 1, Section 7 of the Delaware Constitution. . . . The prosecutor's unprofessional conduct in McCoy's case is the antithesis
of the high standards that are the hallmark of Delaware lawyers and must ...