Monday, July 27, 2015

Pardon My French But Prosecutor Misconduct Against Pro Se Death Penalty Defendant Merits Suspension

The Delaware Supreme Court agreed with its Board on Professional Responsibility that an attorney's conduct as the prosecutor in a murder case violated seven ethics rules.

It disagreed on sanction and suspended the attorney for six months and a day. Neither the attorney or Disciplinary Counsel had objected to a proposed public reprimand.

The extra day is significant

This sanction will require [attorney] Favata to establish his rehabilitation before he can be re-admitted to practice law as a member of the Bar of this Court

The attorney was a Deputy Attorney General who had handled the guilt and penalty phase of the death penalty case.

The conviction and death penalty was reversed on appeal

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”)...

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.

The trial court had admonished him

Listen, 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. I can expect some of that from Mr. McCoy because he’s a criminal defendant. He’s acting as his own counsel. He’s inexperienced. You, sir, are an experienced trial lawyer and I expect some better conduct out of you and Ms. Weaver [co-counsel] to some extent. Ms. Weaver is less culpable than you are in my opinion. Let’s get that out on the table, OK?

The high court expressed concern about this incident

During a recess on July 5, 2012, Favata made several statements regarding “Omerta,” a code of silence associated with the Italian mafia, and its similarities to the Bloods’ code of silence requiring its members to refuse to provide information to the police, as well as what might happen to someone who violated these codes. Favata’s comments were heard by McCoy and the Prothonotary, Carol Lemieux. As Favata ultimately admitted, his comments were meant to be heard by McCoy and began as soon as McCoy was brought into the courtroom by the prison guard. Favata’s comments included that the prosecution would put Detective Pires back on the stand to tell everyone that McCoy was a “snitch,” that there would be a  reporter there from the News Journal, and that McCoy could have trouble back at the prison after other inmates learned that McCoy had “snitched.” McCoy alerted the trial judge to Favata’s comments when the trial judge resumed the bench. According to McCoy, Favata mentioned McCoy’s “ratting on [his] associates and friends and how they would possibly be coming after [him] and . . . [Favata] planned to bring this out.” McCoy stated that Favata told him that if he broke his gang oath, “that the inmates are going to get [him],” and that McCoy was “hiding” at the correctional facility. The trial judge inquired about the truth of what McCoy alleged.

He responded with a false denial.

The attorney's conduct merited a suspension

In Favata’s case, the context and nature of the Omerta statements constitute a significant aggravating circumstance. Favata initially falsely denied making the Omerta statements to McCoy. When the Prothonotary corroborated McCoy’s account, Favata admitted only part of the substance and then falsely accused McCoy of eavesdropping. The complete substance of the Omerta statements was intended to intimidate McCoy, who was acting pro se, and put him in fear of bodily harm in prison. Favata now admits that he intended for McCoy to hear the intimidating Omerta statements about prison reprisals. Such improper conduct stands out as the nadir in Favata’s continuum of egregious professional misconduct in McCoy’s case...

The objectives of the Lawyer Disciplinary system are to protect the public, to protect the administration of justice, to preserve confidence in the legal profession, and to deter other lawyers from similar misconduct. We conclude that any sanction other than suspension would not provide the necessary protection for the public, serve as a deterrent to the legal profession, or preserve the public’s trust and confidence in the integrity of the disciplinary process for Delaware lawyers.

The Open File noted the reversal of the criminal conviction and presciently opined

Maybe next time, when confronted with behavior that they clearly deplore, the Delaware Supreme Court will treat prosecutors’ attacks on defendant’s constitutional rights to something more lasting than an admonishment.  Maybe they’ll make law that citizens can rely on.

This time was next time. (Mike Frisch)

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