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A recent report recommends that the Wisconsin Supreme Court severely discipline former Kenosha County District Attorney Robert Zapf for serious ethical violations he committed while prosecuting Markese Tibbs and Joseph-Jamal Brantley for murder in 2015. Zapf, who announced in 2016 that he would not seek re-election (in the midst of the Office of Lawyer Regulation’s probe into his conduct), could suffer professional consequences for aggravating an already-shocking local law enforcement scandal. Zapf evidently knew weeks before Mr. Brantley’s trial that Kenosha Police Department officer Kyle Baars had admitted to superiors that he planted evidence in the case and then resigned shortly after his confession. Rather than immediately disclosing this bombshell to the lawyers representing the two defendants and removing Baars’s name from the State’s witness list, Zapf waited until near the conclusion of Mr. Brantley’s trial to flag the issue. Because he concealed explosive information indicating that the State manufactured evidence, Zapf could face a suspension of his law license and may be prohibited from serving as a prosecutor ever again.

The report’s author, Dennis J. Flynn, formerly served as a judge in Kenosha County and was selected to serve as a referee in the disciplinary case lodged by the Office of Lawyer Regulation (“OLR”). His thorough 85-page dissertation pulls no punches. A run-down of crucial events helps explain why Judge Flynn concluded that Zapf deserves real punishment.

While the report itself establishes the timeline, a helpful Journal-Sentinel article also sets out the debacle’s sequence:

“Markese Tibbs, 21, pleaded no contest in February 2015 to felony murder in the April 2014 fatal robbery of Anthony Edwards. But then, during a co-defendant’s trial in [February/] March 2015, it was revealed that former Kenosha officer Kyle Baars, 28, had admitted planting Tibbs’ ID and a .22-caliber bullet at the house where Tibbs and Joseph-Jamal Brantley had been arrested in Edwards’ death.

Baars first told his superiors he had planted the evidence in November 2014 and was ordered to write supplemental reports explaining his actions. But he refused to sign a final version because it had left out the bullet. His sergeant signed the final report instead. Baars was suspended pending an internal investigation.

On Jan. 9, Kenosha police officials notified [District Attorney] Zapf that Baars, who was on the state’s witness list in the Edwards homicide case, had planted evidence. On Jan. 18, Baars resigned and the next day the Kenosha chief met with Zapf to inform him of the developments and the need to tell defense lawyers, according to the OLR complaint.

On Jan. 26, Zapf sent both defense lawyers six miscellaneous items of discovery, including Baars’ diluted supplemental report, but did not inform them Baars had resigned over misconduct for planting evidence against Tibbs.

But according to the OLR complaint, Tibbs’ attorney never got the letter and continued negotiating a plea with Zapf, who kept Baar’s [sic] name on his witness list as a Kenosha officer. Once Tibbs pleaded guilty, Zapf told Brantley’s attorney that Tibbs would also now be testifying for the state.

But Brantley’s attorney also was in the dark about Baar’s [sic] actions and resignation. At Brantley’s trial, a different Kenosha officer testified about Tibbs’ ID card and the bullet being found in his blue backpack at the house Tibbs shared with Brantley. Photos of each item were shown to the jury.

Meanwhile, Zapf ‘did not inform the tribunal’ that the ID and bullet had been planted in the backpack by Baars. Only after the defense had rested did Zapf tell the judge there were problems with that evidence, and that Baars had resigned.  A few days later, Baars testified to all of that.”

It is remarkable that the District Attorney somehow felt it was appropriate to sit on information indicating that a police officer who participated in the investigation admitted to planting evidence in that very case. Indeed, evidence than an officer has ever done something so unprofessional and sinister in any case could certainly serve as impeachment material that would fall within the scope of the Brady rule. If concealing information about evidence fabrication would require spectacular justificatory acrobatics generally, what extraordinary excuse did Zapf bring to the table when confronted with disciplinary charges based on his concealment here?

Suffice to say, he didn’t have one. Zapf gave two primary explanations for his actions: (1) he had never been provided with a written report establishing that Baars planted evidence; and (2) he had plenty of evidence to prove that Brantley and Tibbs were guilty of the crime.

The first claim is wildly unconvincing when one considers the multiple meetings Zapf had with Kenosha Police Department officers who told him in person about Baars’s admission and resignation. Zapf claimed that he asked those officers to produce reports, but that they failed to follow through before Brantley’s trial. Judge Flynn slammed this line of reasoning. On page 59 of the report, he wrote:

It was unreasonable to hide behind the excuse that very important oral information from reliable sources did not have to be provided to the defense in this case. That approach also evidenced an intent by Respondent to conceal or cover up relevant, material and exculpatory information that he had a duty to disclose.

As for Zapf’s predictable defense that he had no obligation to disclose Baars’s evidence planting and resignation because he had plenty of evidence of the defendants’ guilt, that did not move Flynn either. In a straightforward finding, Flynn wrote (on page 53 of the report): “The extraordinary evidence of a KPD Officer planting evidence in a homicide case and then subsequently resigning because of that misconduct was exculpatory evidence in and of itself. This is so whether the planted evidence is determined to be relevant or not in the case.” Try as Zapf did to hide behind his pre-trial materiality analysis, the outrageousness of planting evidence simply outweighed it.

Flynn’s report seems to be animated by Zapf’s extensive experience; he was no spring chicken in the profession. As the Kenosha News reported, the DA had “practiced law for 43 years, first served in the Kenosha County District Attorney’s Office as an assistant DA from 1974-80, then as District Attorney from 1981-89. He practiced as a private attorney until he was elected again as District Attorney in 2005 and served until his retirement earlier this year.” Moreover, “[t]his isn’t Zapf’s first time being formally accused of prosecutorial misconduct. In 1985, he was found to have engaged in misconduct for not disclosing necessary information to a defendant.” For these reasons, Flynn recommended that the Wisconsin Supreme Court suspend Zapf’s license to practice for one year and prohibit him from prosecuting cases in the state ever again.

Ultimately, Flynn found that Zapf violated his duty as a prosecutor to seek justice rather than simply obtain convictions. In his words (on page 67 of the report):

How can any citizen have confidence in the outcome of criminal proceedings here when the Respondent acts as the gatekeeper? His assertion that data doesn’t exist if it isn’t in writing is just a rationalization for lawyer misconduct so he can get 2 more convictions. His goal was not the sharing of critical, relevant, and known exculpatory information where he has a very strong case against the accused. Under the evidence in this case it appears that convictions, and not justice, was [sic] the only goal of Respondent in these 2 prosecutions.

A few other aspects of this story are worth mentioning:

  • Baars, the felonious police officer, somehow came away from the criminal charges he faced for planting evidence with only a deferred sentence of imprisonment and a term of probation;
  • Baars was upset with the outcome in his criminal case, and suggested that the prosecutors had promised he wouldn’t be imprisoned for his wrongdoing;
  • The evidence planting here was featured alongside the widely known cases of Wisconsin men Steven Avery and Brendan Dassey;
  • Judge Flynn’s report also highlights the grave overrepresentation of African-American men in Wisconsin’s criminal justice system (on pages 31-32), stating that this sort of disparity will call a system into question if there is evidence the system is unfair (a similar reckoning with evidence of racial bias in the criminal justice system appeared in recent opinions in an Iowa Supreme Court case).

Interesting and thick as this case of law enforcement corruption appears, the real question now is whether the Wisconsin Supreme Court will respond as forcefully as Flynn did. Zapf’s lawyers say that they may appeal Flynn’s findings. Yet, as weak as the professional disciplinary process usually is, it is hard to see how the former DA will wriggle free of this great a deception.

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