In the Matter of the Petition of Richard W. DRAEGER, for Reinstatement to the Practice of Law.
No. 17223.
Supreme Court of South Dakota.
Decided Nov. 21, 1990.
463 N.W.2d 346
SABERS, Justice.
Argued Sept. 17, 1990.
Whenever pоtentially exculpatory evidence is permanently lost [through prosecutorial neglect or oversight], courts faсe the treacherous task of divining the import of materials whose contents are unknown and, very often, disputed.
Trombetta, 467 U.S. at 486, 104 S.Ct. at 2533, 81 L.Ed.2d at 421 (citing Valenzuela-Bernal, 458 U.S. 858, 102 S.Ct. 3440).
Whatever duty the Constitution imposes on the States to preserve evidence, that duty must be limited to evidencе that might be expected to play a significant role in the suspect‘s defense. To meet this standard of constitutional mаteriality, see United States υ. Agurs, 427 U.S. [97], at 109-110, 96 S.Ct. 2392, at 2400, 49 L.Ed.2d 342 [(1976)], evidence must both possess an exculpatory value that was apparent before the evidence was destroyed, and be of such a nature that the defendant would be unable to obtain comparable evidence by other reasonably available means.
Lewandowski did not satisfy the requirements of Boykin because he had a burden to show that the undisclosed evidence prejudiced the defense and created a doubt cоncerning his guilt which did not otherwise exist. There was a plethora of evidence to establish his guilt. Testimony of the sheriff and observations of the Birchems established his guilt beyond a reasonable doubt. Here, the missing tape played no “significant role” in the wоrds of Boykin.
R. James Zieser, Tyndall, for Disciplinary Bd.
Jeffrey L. Viken of Finch, Viken, Viken & Pechota, Rapid City, for Draeger.
SABERS, Justice.
On January 23, 1985, attorney Richard W. Draeger was convicted of shoplifting. On September 3, 1985, this Court suspend
Draeger bears the burden of demonstrating to the Board “by clear and convincing evidence that he has the moral qualifications, competency and learning” necessary to the practice of law.
We believe that Draeger has demonstrated his moral rehabilitation with clear and convincing evidence undiminished by anything to the contrary in the record. He has presented this Court with eight affidavits from attorneys, his employer and other responsible persons with whom he is involved in community projects attesting the reliability of his character, the progress he has made in overcoming his problems and his moral fitness to resume the practice of law.
We find especially credible the lengthy testimony at the Board hearing of Dr. Donald Burnap, a psychiatrist who has known Draeger for seven years and who treated him professionally for nearly three years following his shoplifting conviction. That testimony makеs it clear that Draeger‘s theft of twelve record albums in 1985 was not a calculated decision to steal for persоnal gain but a dysfunctional response to emotional depression and personality disorder. Having helped Draeger to address the root causes of the behavior over some ninety counseling sessions, Dr. Burnap is satisfied that Draeger has assumed responsibility for recognizing the onset of his depression and for taking steps to respond to it constructively. Dr. Burnap testifies that the chances of Draeger‘s shoplifting again are “minimal.”
The Board also commissioned Dr. Stephen Manlove to perform an independent evaluation of Draeger. Dr. Manlove‘s report was largely consistent with Dr. Burnap‘s testimony, except that Dr. Manlove termed Draeger a “recovering Kleptomaniac,” which he characterizеd as being analogous to a recovering alcoholic.
While Draeger‘s learning and competence to practice law have not really been in issue and the record shows some effort on his part to keep his professional knowledge current, it has been five years since he was active as an attorney. Therefore our judgment reinstаting Draeger to the practice of law is conditioned on his successful completion of the South Dakota Bar Exаmination, including the Multistate Bar and the Multistate Professional Responsibility portions.
MILLER, C.J., and WUEST and MORGAN, JJ., concur.
HENDERSON, J., concurs in part and dissents in part.
HENDERSON, Justice (сoncurring in result in part; dissenting in part).
I concur in the reinstatement of Draeger to the practice of law. I also cоncur with the majority in its decision that Draeger should submit to an examination of his knowledge and understanding of the requirements of prоfessional rules of conduct. However, I disagree that his reinstatement should be conditioned on his successful complеtion of the South Dakota Bar Examination. This would include the multi-state bar examination (multiple choice). Matter of Voorhees, 403 N.W.2d 738 (S.D.1987) (see Henderson, J., dissenting).
Unfortunately, this test fails many deserving young pеople who have given seven years of their lives to become lawyers. Here, a competency test will be administered to Draeger when his competency has not been at issue. Easy it is for those who create the examination; mechanical it is for those who grade it; anguish it is to those who are forced to take it.
Like one, that on a lonesome road
Doth walk in fear and dread,
and having once turned round,
walks on.
And turns no more his head;
Because he knows a frightful friend
Doth close behind him tread.Coleridge: The Rime of the Ancient Mariner VI.