Texas-Bar-Today-Top-Ten-Blog-Posts-September-2015Society has an undeniable, and sometimes unrealistic, expectation that wrongdoers will be apprehended, given a fair trial, found guilty beyond a reasonable doubt, and sentenced for their crimes. When this process works the way it should, the integrity of our criminal justice system is preserved. When it does not work the way it should, especially because of law enforcement or prosecutorial misconduct, individual tragedy inevitably ensues and faith in our criminal justice system is seriously eroded.


Trivial Case, Tragic Consequences


The case of Stephen Comstock illustrates the tragic consequences of prosecutorial misconduct. In fact, in a May 2015 decision reversing Comstock’s conviction, the Ninth Circuit Court of Appeals noted that “this seemingly trivial case had tragic results.”


In August 2003, a detective with the Reno Police Department was routinely reviewing local pawn shop transactions when the sale of a ’91-‘92 collegiate championship wrestling ring caught his attention. The detective learned that the ring belonged to a Reno resident named Randy Street who told the detective that he thought the ring was in a seashell in his apartment. The detective informed the former wrestler that the ring had actually been pawned.


The name on the pawn ticket was Stephen Comstock—a repeat offender who was being monitored by the detective as part of a local surveillance program. Comstock admitted to pawning the ring but said he did so for a friend named Danny Carter in exchange for a carton of cigarettes.


The case was presented to a local district attorney who had Comstock indicted for “knowingly possessing stolen property.”  At Comstock’s ensuing trial, the prosecutor told the jury that the ring had “clearly” been stolen from Randy Street’s apartment by either Comstock or Carter; and that Comstock “knew or should have known that the ring was stolen when he pawned it.” Street testified for the prosecution, telling the jury that he kept the ring inside his apartment and he did not recall losing it outside the apartment.


As part of his defense, Comstock called his ex-girlfriend who had been a housekeeper at Street’s apartment complex. She told the jury that she found the ring in a flower bed outside the complex’s laundry room and that she later gave the ring to Carter. She also informed the jury that she and Comstock had split up “several months before she found the ring.”


In his closing argument, the prosecutor rebutted the ex-girlfriend theory by saying Street “cherished and safeguarded” the ring and never would have lost it. “That ring was important to him and he knew exactly where it was,” the prosecutor told the jury. “He didn’t lose it, it was stolen. He keeps it in a seashell or he wears it. He would never lose anything with that significant of value. It was clearly stolen from his apartment.”


Prosecutor Failed to Disclose Favorable Evidence


What the prosecutor did not tell the jury, as the Ninth Circuit said, was that “Street told the prosecutor and the investigating detective that the ring might have been lost outside, and not stolen, just as Comstock’s lawyer had argued to the jury.”


The result of this seemingly trivial case of prosecutorial misconduct?


In March 2004, Comstock was convicted and sentenced to 10 to 25 years as a habitual offender.  He served 10 before his case was reverse after the


This harsh sentence was imposed despite Street telling the court that he had “doubts about whether his ring was actually stolen.” In fact, in his pre-sentencing “victim” statement, Street stated he had told the prosecutor and the investigating detective that, as noted by the Ninth Circuit, he “remembered a time he had taken the ring off outside his apartment, placing it either on the ground or on an air conditioner, and did not recall putting it back on, meaning that the ring might have been lost outside, not stolen, just as Comstock’s lawyer had argued to the jury.”


After ten years in Prison


After pointing out that neither the prosecutor nor the investigating detective told Comstock’s lawyer about this “critical fact,” the appeals court said this nondisclosure was so “troubling” that it was compelled “to grant Comstock the relief he seeks, albeit ten years too late.”


Pace Law School Professor Bennett Goodman has been called “one of the nation’s leading experts on prosecutorial misconduct.” Professor Goodman penned a piece published in The Daily Beast on August 31, 2015, in which he said that state of New York, which has been “plagued by [prosecutorial] misconduct, is “considering” creating independent review board, similar to the one in place for judges, to deal with complaints of prosecutorial misconduct.


“American prosecutors are powerful officials,” Goodman wrote. “They have the power to deprive people of their liberty, destroy their reputations, and even take away their lives. They have virtually unlimited discretion in how to exercise their powers.”


The proposed New York “Commission on Prosecutorial Misconduct” would be the first in the nation—a state body to investigate and discipline prosecutors who, like the one in Stephen Comstock’s case, engage in misconduct.


Such a commission shows promise. As Professor Goodman noted, New York’s Judicial Commission was created in 1975. Prior to that time, only 23 judges had ever been disciplined in New York. Since the creation of the commission, 826 judges have been disciplined and another 166 removed from office.


Prosecutors should, and must, be held accountable for their misconduct. As Goodman wrote, “ … there are thousands of … cases involving persons accused of crimes and convicted because the prosecutor violated the rules. These cases are usually under the radar, and prosecutors are able to commit many abuses without public scrutiny.”


Stephen Comstock was one of those anonymous cases. Nothing has been or will be done to the prosecutor who took ten years out of Comstock’s life. Why would a prosecutor withhold the kind of clearly favorable information provided to him by Randy Street? The answer is simple: had the prosecutor told the jury about what Street had said about losing the ring, it could have created enough reasonable doubt for the jury to find Comstock not guilty. It comes down to the “win-at-all-cost” mentality that afflicts prosecutors. They form a belief as to a defendant’s guilt, and validating that belief with a guilty verdict from a jury fuels their desire to win, regardless of the rules, ethics, and even the laws they violate in the process.


Criminal defense lawyers nationwide, in both the federal and state criminal justice systems, know well that the system is plagued with such prosecutors.


Professor Goodman pointed to one upstate New York prosecutors who was “harshly rebuked” by state and federal courts in six different trials, four of which were reversed on appeal. The prosecutor was not disciplined for any of the misconduct.


Of course, the New York District Attorneys Association opposes the formation of a review commission because they believe, as Goodman wrote, “prosecutors are effectively disciplined by local grievance committees.”


Why then was not a single prosecutor from the office of former Brooklyn District Attorney Charles Hynes ever disciplined following numerous published reports documenting rampant prosecutorial misconduct during his tenure in office?


Stephen Comstock may soon be a free man. Ten years of his life were lost. The prosecutor who stole those ten years will not even receive a slap on the wrist. He spent those ten years celebrating Comstock’s and scores of other convictions, many of which, we suspect, were probably obtained in the same manner as Comstock’s.


The Comstock case is an illustration of how the system is not supposed to work.