The Bullet In The Backpack

The Wisconsin Supreme Court has dismissed bar charges against a prosecutor with a harsh assessment of the work of the appointed referee

Former Kenosha County District Attorney Robert D. Zapf appeals the report of Referee Dennis J. Flynn, who concluded that Attorney Zapf had committed two counts of professional misconduct and recommended that his license to practice law in Wisconsin be suspended for one year and that his resumption of the practice of law be subject to certain conditions.

After hearing oral argument and carefully reviewing this matter, we conclude that all three counts alleged against  Attorney Zapf must be dismissed. The Office of Lawyer Regulation (OLR) failed to demonstrate by clear, satisfactory, and convincing evidence, as required by Supreme Court Rule (SCR) 22.16(5), that Attorney Zapf violated the three ethical rules identified in its complaint. Because we dismiss the OLR’s complaint in its entirety, we do not require Attorney Zapf to pay the costs of this proceeding.

He had been reprimanded in 1985

Attorney Zapf testified in this proceeding that the 1985 reprimand affected him deeply and caused him to take steps over the remaining course of his career to ensure that evidence was turned over. He instituted a broad open-file policy in the Kenosha County District Attorney’s office that, as acknowledged  by the grievant in this matter, amounts to the prosecution permitting defense attorneys to inspect the prosecution’s entire file with the exception of work product generated by the prosecuting attorneys. Attorney Zapf even placed a copy machine in the district attorney’s office on which defense counsel could copy portions of the prosecution files without charge.

Summarizing the referee’s findings of fact in this proceeding is not an easy task. No section of the referee’s report contains a precise listing of the facts as the referee found them. While the report does contain a section entitled “FACTS,” in that section the referee simply recites the testimony given by the various individuals at the evidentiary hearing without identifying which assertions he accepted as true and which he did not.  In addition, there is a stipulation of facts that the parties prepared and that was received into evidence. There are facts stated throughout the discussion section of the referee’s report. This opinion will summarize the facts as the referee appears to have found them by gleaning them from the discussion section of the report…

At least with respect to the broad outlines of the underlying facts, there does not appear to be any dispute. This disciplinary proceeding arises out of the actions of a Kenosha Police Department (KPD) officer, Kyle Baars. On April 14, 2014, Officer Baars assisted in transporting Markese Tibbs to a KPD police station. At that point Tibbs was a suspect in a homicide that had occurred earlier that day.  During the transportation or subsequent booking of Tibbs, Officer Baars came into possession of Tibbs’ Illinois identification card. Officer Baars kept the Illinois ID card on his person at the end of his shift on April 14.

There was a search in an unrelated matter the next day

ultimately it was discovered that Officer Baars did, in fact, place the .22 caliber bullet into the backpack and hand the ID to Detective Traxler with the intent to connect the bullet, the ID, and the backpack to Tibbs. What is important for purposes of this disciplinary case, however, is what was known at what time about the events that unfolded during the search on April 15, 2014. To describe Officer Baars’ actions as “planting” the ID and the bullet implies that it was an established fact from the outset. Although we know now, with the benefit of hindsight, that those items were, in fact, “planted” by Officer Baars, we must be careful not to conflate that later acquired knowledge with the knowledge of the participants at the time (or in the subsequent months).

Referee on sanction

The referee, who clearly viewed this matter as a massive conspiracy by the KPD as well as an egregious exercise in hiding police criminal conduct by Attorney Zapf, recommended that the court suspend Attorney Zapf’s license for “at least 1 year.” The referee did not cite any prior disciplinary decisions as support for his recommendation.

The court

We need not and do not decide in this case the full and precise ways in which the contours of Brady and Wisconsin’s discovery statute either overlap or diverge. We are not reviewing either Mr. Tibbs’ criminal conviction or Mr. Brantley’s. What we are determining is whether the OLR has proven by clear, satisfactory, and convincing evidence that Attorney Zapf engaged in professional misconduct by violating SCR 20:8.4(f). Thus, unlike in a criminal case, where the focus is on the information and materials in the state’s possession, we must focus on what information or materials Attorney Zapf had in his possession. We conclude for multiple reasons that Attorney Zapf did not violate SCR 20:8.4(f)…

In this case, the OLR failed to prove that Attorney Zapf’s conduct met both of those standards. First, to the extent that the referee infers that Attorney Zapf had actual knowledge that Officer Baars had intentionally planted evidence at some point prior to Officer Baars’ admission of that fact, we determine that any such finding is clearly erroneous. The referee does make statements that could be considered findings of fact that during the January 9, 2015 meeting, Detective Kenesie and the other KPD officers told Attorney Zapf that Officer Baars had “planted” the ID card (and possibly the bullet). There is, however, no place in the record where this statement is made. As noted above, none of the police officers involved in that meeting testified at the evidentiary hearing in this case. The only participant in the meeting who did testify was Attorney Zapf, and he did not say that he had been told that Officer Baars had “planted” evidence. He testified that the officers said that Officer Baars had spoken of making a “mistake,” had denied planting the ID card, and had made confusing statements about having had “false memories” of possibly having brought the bullet to the scene of the search…

The problem with the referee’s inference that Attorney Zapf had actual knowledge of the planting of evidence is that there is no evidence on which it can be reasonably based.

Findings of misconduct based on false argument were also rejected

Attorney Zapf’s argument on appeal regarding this count is simply that the referee’s finding of a violation was based on an erroneous reading of certain of the factual assertions in his statement to the court on Day 5 of the Brantley trial and an erroneous belief regarding what Attorney Zapf knew at the time. We agree that the referee’s findings that certain of Attorney Zapf’s statements were false were based on a mischaracterization of what Attorney Zapf actually said. Quite simply, Attorney Zapf did not make most of the factual statements that the referee found he did. As to what he did say, it would be clearly erroneous to find that those statements were false.

The Kenosha News reported on the bar charges. (Mike Frisch)