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Delaware Supreme Court Suspends Prosecutor for Misconduct

On July 27, 2015, the Delaware Supreme Court suspended Deputy Attorney General R. David Favata for six months and a day, for prosecutorial misconduct involving the capital case of McCoy v. State, 112 A.3d 239 (Del. 2015). The case was referred by the Board of Professional Responsibility, which investigates violations of the Rules of Professional Conduct for Delaware attorneys, then refers them to the state Supreme Court for final determinations. In this case, the Board recommended a public reprimand but the Supreme Court disagreed, instead suspending Favata and requiring him to “establish his rehabilitation before he can be re-admitted to practice law....”

The misconduct stemming from McCoy v. State consisted of seven rule violations, including Rule 3.3(a)(1) (knowingly making a false statement of fact to a tribunal); Rule 3.4(e) (stating a personal opinion as to the credibility of a witness and/or the guilt of an accused); Rule 3.5(d) (engaging 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) (engaging in conduct involving dishonesty, deceit or misrepresentation). He was also found guilty of three counts of violating Rule 8.4(d) (engaging in conduct prejudicial to the administration of justice).

In his capacity as a prosecutor for Kent County, Favata engaged in conduct designed to prejudice Isaiah W. McCoy, who was representing himself pro se on various charges, including two counts of first-degree murder.

While McCoy was cross-examining the victim’s girlfriend, Favata objected and made a comment indicating McCoy was guilty, saying, “She obviously hasn’t spoken to the defendant since he shot her boyfriend.” Favata also addressed McCoy directly, telling him to “start acting like a man” and saying that despite dressing up for the trial, he was still a murderer. Further, Favata ridiculed McCoy’s efforts to represent himself – which was his right – and said he would have a police detective tell people that McCoy was a snitch.

When questioned by the judge in the case, Favata lied and did so repeatedly during his subsequent disciplinary proceedings until he finally conceded and told the truth. As a result, McCoy, who had been found guilty and sentenced to death, was granted a new trial.

“Although most of the 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,” the Supreme Court wrote. See: In the Matter of a Member of the Bar of the Supreme Court of the State of Delaware: R. David Favata, No. 303, 2015.

In January 2016, the attorney now representing McCoy for his retrial complained that McCoy had been denied in-person visits with his counsel and access to the law library at the Howard R. Young Correctional Institution. State officials informed the court that McCoy would be allowed private meetings with his defense attorney.

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Related legal case

In the Matter of a Member of the Bar of the Supreme Court of the State of Delaware: R. David Favata,