In an opinion remarkable for its forthright criticism of a prosecutor’s “demeaning and belligerent” conduct toward a pro se defendant, the Supreme Court of Delaware has overturned the conviction and death sentence of a Kent County man for a 2010 murder in a bowling alley parking lot in Dover.
Twenty-seven year old Isaiah McCoy chose to represent himself at trial, and subsequently appealed his conviction and sentence. He sought a reversal based on, among other grounds, the court’s failure to permit one of his peremptory challenges during voir dire, and state prosecutor R. David Favata‘s misconduct in both vouching for a witness, and behaving in a prejudicially unprofessional manner throughout the trial.
Sitting en banc, the Delaware Supreme Court found the trial court “committed reversible error when it improperly denied McCoy’s right to exercise a peremptory challenge to strike a potential juror,” whose wife had worked at a detention facility where the pro se defendant had himself been an inmate.
In addition, reversible error occurred when the prosecutor improperly vouched for the credibility of a key witness for the State. We also address the pervasive unprofessional conduct of the prosecutor that permeated these proceedings and compromised McCoy’s right of self-representation.
The instance of improper vouching is itself unusual and seemingly indicative of the state’s general comportment in the case. It occurred during the defendant’s questioning of one of his alleged accomplices. The prosecutor, Favata, objected to a particular question, saying aloud in the presence of the jury, “She obviously hasn’t spoken to the defendant since he shot her boyfriend.”
[T]he prosecutor improperly vouched for Williams’ testimony by expressing his personal opinion that McCoy was guilty…the comment made here implied that the prosecutor had superior knowledge unavailable to the jury…The prosecutor implicitly and inappropriately corroborated Williams’ testimony and endorsed her credibility. As such the prosecutor’s objection constituted… prosecutorial misconduct.
Based on the closeness of the state’s case, and the degree to which it relied on alleged accomplice testimony, the court found that the vouching was not harmless error.
But what is most notable about McCoy v. Delaware, however, isn’t the holding on the jury challenge or Favata’s buttressing of the witness, but a later section of the opinion, which while not controlling, clearly informed the court’s decision to reverse. In it, the court describes in great detail the “insulting and disruptive conduct of the prosecutor throughout the trial.”
From the opinion, it is clear Favata was none too pleased that McCoy had chosen to represent himself in the first place, and allowed this to infect his behavior throughout. When a question arose in conference about the defendant’s attire at the trial, the court quotes Favata saying, “I don’t care. You can dress him up. He’s still a murderer.” He later addressed the defendant directly and told him to “Start acting like a man.”
The court cites over twenty instances of Favata’s disparaging McCoy’s capacity to conduct himself in the court room, and attacking his lack of education and legal training. “The defendant has not prepared his case adequately,” he stated at one point. “That’s what happens when you rely on made-up evidence.”
Such behavior did not go unremarked upon by the trial judge. In the penalty phase, he stated, “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 like the cynicism that’s being generated.”
In reviewing Favata’s conduct overall, the Supreme Court concluded,
The prosecutor’s repetitive pattern of unprofessional conduct set a tone for trial that is inconsistent with the due process rights of a capital defendant…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’s self-representation in front of the jury…[This] 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.
And yet, in a pattern familiar in cases such as this, the court chose not to reach a holding as to whether the conduct they condemned above constituted reversible error, relying instead on the jury challenge and the particular instance of vouching to grant a new trial.
We have written about the sharp practices of Delaware prosecutors in death penalty cases before. Jermaine Wright spent twenty-one years on death row after prosecutors suppressed evidence of an alternative suspect in his case. And now another death penalty conviction has been vacated owing in large measure to the misconduct of the state.
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.