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In re Disciplinary Proceedings Against Zapf

Supreme Court of Wisconsin

July 10, 2019

In the Matter of Disciplinary Proceedings Against Robert Zapf, Attorney at Law:
v.
Robert Zapf, Respondent-Appellant. Office of Lawyer Regulation, Complainant-Respondent,

          Oral Argument: October 29, 2018

         ATTORNEY disciplinary proceeding. Complaint dismissed.

          For the respondent-appellant, there were briefs filed by Richard J. Cayo, Stacie H. Rosenzweig, and Halling & Cayo, S.C., Milwaukee. There was an oral argument by Richard J. Cayo.

          For the complainant-respondent, there was a brief filed by Gregg Herman and Office of Lawyer Regulation, Milwaukee. There was an oral argument by Gregg Herman.

          PER CURIAM.

         ¶1 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.

         ¶2 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.

         FACTUAL BACKGROUND

         ¶3 Attorney Zapf was admitted to the practice of law in this state in 1974. After serving as an assistant district attorney for approximately six years, he was initially elected as the Kenosha County District Attorney in 1980 and served from 1981 to 1989. After a substantial period in private practice, he was appointed to the position of district attorney in 2005 and was reelected to continue serving in that position until he retired in January 2017.

         ¶4 In 1985, during Attorney Zapf's first period as district attorney, he was publicly reprimanded for communicating with a party who was represented by counsel and for failing to disclose information to defense counsel. In re Disciplinary Proceedings Against Zapf, 126 Wis.2d 123, 375 N.W.2d 654 (1985).

         ¶5 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.

         ¶6 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.[1] 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.

         ¶7 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.[2] [3] 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.

         ¶8 When Officer Baars started his shift the following morning, he was directed to assist in a second search of the residence at 1208 59th Street and was informed that the search was for handguns, ammunition, casings, and clothing.[4]

         ¶9 What happened during that second search on April 15, 2014, is not as clear. What is important for purposes of this opinion is what the officers other than Officer Baars knew about his conduct during the search and what part of that knowledge they shared with the police chief and with Attorney Zapf. That will be addressed below.

         ¶10 Officer Baars searched one of the bedrooms, where he found a blue backpack. Officer Baars alerted the other officers that he had located a backpack and that inside of it was a bullet. (The bullet was a .22 caliber bullet, not a .32 caliber bullet that matched the weapon used in the homicide of Anthony Edwards.) Officer Baars later recalled, and the referee seems to have found, that when the other officers entered the bedroom, he also handed the Tibbs ID to one of the detectives (Detective Traxler). After looking at the ID, Detective Traxler told Officer Baars that the .22 bullet and the ID should be placed back into the backpack and collected as evidence. Officer Baars followed the detective's order. He did not inform Detective Traxler or any other officer that the ID had not been found initially in the backpack and that it had been in his possession from the day before. There is no evidence in the record that Detective Traxler or any of the other officers knew the source of the ID at that time. KPD Officer Brandie Pie photographed the backpack and its contents and then collected them as evidence.

         ¶11 From the very beginning of the description of the April 15, 2014 search, the referee concludes that Officer Baars had intentionally planted the ID (and maybe the bullet):

Officer Baars did not advise any other KPD officers there that he had possession of the Illinois ID card and perhaps also the .22 caliber bullet on entering the residence before participating in the search. What this meant is that Officer Baars had planted the Illinois ID card and perhaps the .22 caliber bullet as evidence in a homicide investigation.

         ¶12 We need to pause the factual recitation at this point for some clarification. The referee at this early point in the recitation of facts concludes that Officer Baars "planted" the ID and perhaps the bullet. The term "planted" could be understood to mean different things. It could be used simply as a substitute for "placed," which would not necessarily connote malicious intent, or it could mean "negligently placed," which would connote a lack of care but not an intentional act. Finally, as seems to be most often the case, "planted" could be understood to connote an intentional placing of an item with an intent to implicate someone in a crime under false pretenses. The use of the term "plant" in the stipulation in this case is not always clear. On the other hand, although the referee does not specify which connotation he was employing, it appears that he meant the term to mean the intentional planting of false incriminating evidence.

         ¶13 As will become clear below, 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).

         ¶14 The referee, however, relied on his description of the April 15, 2014 events as the "planting" of evidence to form inferences about what the KPD officers and Attorney Zapf knew or should have known during the relevant time periods.

         ¶15 The state initiated separate criminal cases against Tibbs and Brantley related to the Edwards homicide. Attorney Zapf was the prosecuting attorney on those cases, which remained pending in the fall of 2014. Attorney Terry Rose represented Tibbs. Attorney Christopher Glinski represented Brantley. The state also filed a separate criminal complaint against Tibbs for his involvement in the Shenanigan's robbery. Attorney Zapf was not involved in that case.

         ¶16 The jury trial in the case against Tibbs involving the Shenanigan's robbery commenced on October 28, 2014.[5] There is no dispute that while that trial was occurring, Officer Baars had at least two conversations with KPD Detective Jason Kenesie, who was one of the lead investigators for both the Shenanigan's robbery and the Edwards homicide. The stipulation in this case provided that during these conversations, Officer Baars told Detective Kenesie that he had "improperly placed" Tibbs' Illinois ID and possibly the .22 caliber bullet into the blue backpack that had been found during the April 15, 2014 search.

         ¶17 The referee acknowledged that the stipulation used the term "improperly placed." That term does not mean that Officer Baars admitted to Detective Kenesie in October 2014 that he had intentionally planted the ID and possibly the bullet. The referee, however, equated "improperly placed" with "planted." Having inferred that Officer Baars had admitted planting evidence, the referee inferred that Detective Kenesie should have immediately questioned Officer Baars as a suspect in the commission of a crime involving planting evidence.

         ¶18 Neither Officer Baars nor Detective Kenesie testified at the evidentiary hearing in this disciplinary proceeding. Attached to the stipulation in this case, however, was an internal police report, dated January 15, 2015, prepared by Detective Kenesie, which we shall reference as "the Kenesie Report."[6] This is the only evidence in the record to support the statement in the stipulation regarding what Officer Baars told Detective Kenesie. The Kenesie Report paints a different picture than the referee's inference that Officer Baars had admitted planting evidence.

         ¶19 According to the Kenesie Report, Officer Baars initially told Detective Kenesie that "he had screwed up and made a mistake." Officer Baars stated that during the search he had discovered the blue backpack with the bullet inside and that at some point while reviewing the contents of the backpack, he had placed Tibbs' ID, which he still had with him from the day before, into the backpack. When he announced the discovery of the backpack, Detective Traxler advised him that the backpack, the bullet, and the ID were to be collected as evidence. Officer Baars acknowledged that he had allowed the ID to be collected as evidence even though he knew it was not originally in the backpack. When Detective Kenesie asked him, however, whether he had left the ID in the backpack on purpose or if he had wanted to plant it as evidence, Officer Baars responded that he had not and that it had been a mistake. The Kenesie Report further stated that while meeting with Detective Kenesie, Officer Baars was emotional and had tears in his eyes.

         ¶20 Detective Kenesie advised other KPD officers about Officer Baars' statements. Detective Kenesie and another detective then met again with Officer Baars. During that meeting the two detectives determined that Officer Baars needed to write a supplemental police report about his actions during the search.

         ¶21 Officer Baars prepared an initial draft of the supplemental report and gave it to Detective Kenesie. In this first draft, Officer Baars stated that during the search of the bedroom, he had emptied the contents of various bags onto a dresser or television to inspect the contents. At one point he located the blue backpack, which contained a smaller caliber round of ammunition. He then announced the find of the backpack with the bullet, which caused Detective Traxler and other officers to enter the bedroom. According to this first draft of the report, Officer Baars recalled that he gave one of the officers the ID, but he did not remember from where he had retrieved the ID before doing so. After Detective Traxler stated that the ID and the bullet should be collected as evidence, Officer Baars placed the ID and the bullet into the front pocket of the backpack and returned the backpack to the floor so Officer Pie could photograph the location of the backpack and its contents. In this first draft, Officer Baars acknowledged that he had not advised any of the other officers that he had been in possession of the ID when he had entered the residence and that it had not been found in the backpack. This first draft did not indicate in any way that Officer Baars had also initially placed the bullet into the backpack.

         ¶22 According to the Kenesie Report and the stipulation, Detective Kenesie reviewed the initial draft and shared it with another officer. They both felt that it left more questions than it answered so Detective Kenesie directed Officer Baars to redo the report. Officer Baars prepared a second draft of the supplemental report. Detective Kenesie felt that this draft also lacked clarity, and he directed Officer Baars to prepare a third draft.

         ¶23 The third draft was dated November 11, 2014, and will be referenced as the "11/11/14 supplemental report." The stipulation states that this third draft "disclosed Baars['] planting the ID card but did not disclose planting a bullet." The third draft, however, never uses any form of the word "plant" and does not describe Officer Baars' actions in placing the ID into the backpack in any truly different way than the first two drafts. The third draft does say that Officer Baars found the bullet in the backpack and announced its discovery to other officers, who came into the room. It states that Officer Baars believes he then gave Tibbs' ID to Detective Traxler, who directed that the ID and the bullet should be collected as evidence. The 11/11/14 supplemental report then states, like the prior versions, that Officer Baars placed the bullet and the ID into the backpack and returned it to the place where he had found it so that it could be photographed and taken into evidence.

         ¶24 According to the Kenesie Report, Detective Kenesie felt that the 11/11/14 supplemental report was still confusing, did not completely explain the facts, and contained the officer's opinions about why he took certain actions that should not be included in a police report. Nonetheless, Detective Kenesie and another detective determined that this third draft would be submitted as written. Detective Kenesie subsequently brought the report to the supervising officer, who signed it. Detective Kenesie intended to have Officer Baars sign the report later that day, but he was not on duty that day.

         ¶25 A few days later, Detective Kenesie met with Officer Baars for the purpose of having him sign the 11/11/14 supplemental report. Officer Baars was extremely distraught and told Detective Kenesie that he was questioning himself about the ID. He then asked Detective Kenesie, "What if the bullet is the real issue?" When Detective Kenesie asked Officer Baars to explain, he stated that while he was struggling with the situation, could not remember exactly what had happened, and had been having "false memories," he felt that he might have brought the bullet, as well as the ID card, into the residence on the day of the search. When asked about having "false memories," Officer Baars said that he had been remembering things that he knew had not happened and gave an example to Detective Kenesie. When Detective Kenesie directly asked Officer Baars if he had brought the bullet into the residence and placed it into the backpack, Officer Baars responded that he had not and was not saying that he had. Officer Baars said that he remembered at some point having looked at a .22 caliber bullet and asking himself how such a small object could kill something. Nonetheless, although he said that he did not remember initially placing the bullet into the backpack, he was concerned that he might have done that. Officer Baars subsequently told Detective Kenesie that he would not sign the 11/11/14 supplemental report as it currently existed and that he wanted to rewrite it. Detective Kenesie decided that Officer Baars should not rewrite the report yet again. The 11/11/14 supplemental report was turned over to a police captain, apparently for inclusion in the police file.

         ¶26 Based on his belief that it was clear from the beginning that the ID and possibly the bullet had been planted by Officer Baars, the referee makes additional inferences regarding the preparation of the three drafts of the report. Although the stipulation specifically stated that Detective Kenesie had rejected the first two drafts of the supplemental report because they had "lacked clarity," the referee determines that a reading of those reports does not support that conclusion.[7] He infers from the fact that Detective Kenesie assisted Officer Baars concerning the preparation of three different drafts of the report and the fact that Detective Kenesie failed to treat Officer Baars as a criminal suspect by reading him his Miranda[8] rights, that Detective Kenesie and other KPD officers were engaged in a "blatant attempt to control damage to the KPD regarding the crime of a criminal police officer who was acting during that crime as a KPD officer." The referee further draws a "strong inference" of a "cover-up of police wrongdoing" from the fact that the report was signed by a supervisor, but not by Officer Baars.

         ¶27 On January 9, 2015, Detective Kenesie and two other KPD supervisory officers requested a meeting with Attorney Zapf. The referee describes this meeting in his report as follows: "On 9 January 2015, KPD Officers Kenesie, Hagen and Larson told Attorney Zapf that KPD Officer Baars had planted an Illinois ID card and possibly a .22 caliber bullet as evidence during the execution of a search warrant in the Tibbs and Brantley homicide case."

         ¶28 The only evidence in the record regarding this meeting are Attorney Zapf's testimony and the stipulation. None of the KPD officers who attended the meeting testified at the evidentiary hearing in the disciplinary case. The stipulation states that the KPD officers informed Attorney Zapf that Officer Baars "had placed Tibbs' Illinois identification card into the blue backpack and possibly a .22 caliber bullet during the search of the 59th Street residence." The stipulation did not say that Officer Baars had intentionally "planted" the ID or the bullet. The "placing" of the items into the backpack could have been negligence, could have been a result of Officer Baars' uncertainty as to what to do after Detective Traxler had ordered the ID card to be collected as evidence, or it could have been an intentional planting. A statement that Attorney Zapf was told about one or more items being placed, however, does not demonstrate that Attorney Zapf knew for a fact that the items had been "planted." Indeed, Attorney Zapf testified that he was not told that Officer Baars had "planted" the ID card. Attorney Zapf further testified that he had been told at this meeting that Officer Baars had said that he had placed the ID into the backpack, but Officer Baars also indicated that the handling of the ID had been a mistake or an oversight. Attorney Zapf also specifically testified that he had been told during the January 9, 2015 meeting that Officer Baars had spoken of "false memories" about the bullet, but had explicitly denied having placed the bullet into the backpack.

         ¶29 At the end of the January 9, 2015 meeting, Attorney Zapf directed the officers to provide him with a written report regarding what they had told him. The officers did not prepare their own report. On January 21, 2015, Detective Kenesie submitted Officer Baars' 11/11/14 supplemental report to Attorney Zapf's office. The referee infers further cover-up from the fact that the officers did not prepare their own report and that Attorney Zapf did not follow up when he did not receive such a report.

         ¶30 According to his testimony at the evidentiary hearing, on January 9, 2015, the Kenosha Chief of Police, John Morrissey, also learned for the first time[9] of the fact that Officer Baars had apparently mishandled evidence and placed Officer Baars on administrative leave pending the completion of an internal affairs investigation.[10]

         ¶31 On January 18, 2015, one day before an administrative hearing about his conduct, Officer Baars resigned from the Kenosha Police Department. Chief Morrissey's testimony about the resignation is the sole source in the record of evidence about Officer Baars' resignation. He testified that Officer Baars gave him a short note of resignation, which said only that he was resigning from the police department for "personal reasons." Chief Morrissey further testified that when he asked Officer Baars whether his resignation was due to the search incident, Officer Baars refused to explain his reasons for resigning beyond referencing the "personal reasons" stated in his resignation note.

         ¶32 On January 19, 2015, Chief Morrissey met with Attorney Zapf. Once again, the referee finds that "again [Attorney Zapf] was given information about the planting of evidence by KPD Officer Baars." There is no evidence in the record, however, that Chief Morrissey gave Attorney Zapf any information about the "planting" of evidence. The only evidence in the record about the content of this meeting comes from the testimony of Chief Morrissey and Attorney Zapf. Chief Morrissey testified that he did not discuss the facts of the search with Attorney Zapf because he believed that his officers had done this during the January 9, 2015 meeting. Chief Morrissey did inform Attorney Zapf that Officer Baars had resigned and asked him for an opinion about whether Officer Baars could be charged with misconduct in office. According to Chief Morrissey, Attorney Zapf could not offer an opinion about the applicability of the misconduct in office statute because he had not yet received any report from the police department about what had occurred during the search. Chief Morrissey further testified that Attorney Zapf told him that, regardless of whether criminal charges ultimately could be issued against Officer Baars if the facts so dictated, Attorney Zapf would need a written report from the KPD, which would need to be provided to the defense attorneys for Tibbs (Attorney Rose) and Brantley (Attorney Glinski).

         ¶33 On January 21, 2015, Detective Kenesie did submit Officer Baars' 11/11/14 supplemental report to Attorney Zapf's office. As Attorney Zapf had been told during the January 9, 2015 meeting, the 11/11/14 supplemental report spoke of Officer Baars "placing" the ID card into the backpack. It did not say that Officer Baars had "planted" the ID card, and it said nothing about the bullet having been introduced into the backpack by Officer Baars. The referee calls the 11/11/14 supplemental report a "false and unauthorized" report. He infers that the submission of this "false" report by the KPD to Attorney Zapf, with the expectation that it would be shared with defense counsel for Tibbs and Brantley, was part of the KPD's "intentional cover-up of evidence of police misconduct." The referee also adversely infers that Attorney Zapf was part of this cover-up because he ...


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