                                                              2019 WI 83

                  SUPREME COURT            OF   WISCONSIN
CASE NO.:               2016AP2514-D
COMPLETE TITLE:         In the Matter of Disciplinary Proceedings
                        Against Robert Zapf, Attorney at Law:

                        Office of Lawyer Regulation,
                                  Complainant-Respondent,
                             v.
                        Robert Zapf,
                                  Respondent-Appellant.

                             DISCIPLINARY PROCEEDINGS AGAINST ZAPF

OPINION FILED:          July 10, 2019
SUBMITTED ON BRIEFS:
ORAL ARGUMENT:          October 29, 2018

SOURCE OF APPEAL:
   COURT:
   COUNTY:
   JUDGE:

JUSTICES:
   CONCURRED:
   DISSENTED:
   NOT PARTICIPATING:


ATTORNEYS:


       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.
                                                                      2019 WI 83
                                                              NOTICE
                                                This opinion is subject to further
                                                editing and modification.   The final
                                                version will appear in the bound
                                                volume of the official reports.
No.   2016AP2514-D


STATE OF WISCONSIN                          :            IN SUPREME COURT

In the Matter of Disciplinary Proceedings
Against Robert Zapf, Attorney at Law:

Office of Lawyer Regulation,                                       FILED
           Complainant-Respondent,
                                                              JUL 10, 2019
      v.
                                                                 Sheila T. Reiff
                                                              Clerk of Supreme Court
Robert Zapf,

           Respondent-Appellant.




      ATTORNEY disciplinary proceeding.          Complaint dismissed.


      ¶1   PER CURIAM.       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
                                                               No.    2016AP2514-D



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
                                        2
                                                                                No.     2016AP2514-D



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.



       1
       Even in the "FACTS" section, the referee acknowledges that
the facts set forth in that part of the report may not be fully
accurate:

       The facts are as presented in the testimony and
       exhibits.   Here some of the facts will be noted, but
       if they differ from the actual testimony and exhibits,
       then the actual testimony and exhibits are relied upon
       by the Referee and are controlling.


                                                     3
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     ¶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.

     2 The stipulation and the referee fail to note that the
homicide, in which Anthony Edwards was killed, took place during
what Edwards believed would be a drug transaction. As Attorney
Zapf testified at the evidentiary hearing, Joseph Brantley and
Tibbs set up the purported transaction as a way to rob Edwards
of money and marijuana. Brantley shot Edwards as he was sitting
in the driver's seat of his vehicle. Edwards drove his vehicle
away but shortly thereafter crashed it into a home.          The
passenger in Edwards' vehicle, J.L., identified Brantley and
Tibbs as the robbers and Brantley as the shooter.
     3 The referee does not note the fact that Tibbs had a
connection to an ongoing investigation of a previous robbery
that had occurred at the Shenanigan's liquor store.   According
to the stipulation in this case, a .22 caliber pistol had been
recovered by the police in a getaway vehicle after the
Shenanigan's robbery. One of the two suspects in the robbery, a
man known as "Montriel," had been previously arrested at 1208
59th Street in Kenosha, but the other robber, identified as
"Cali," had not been arrested.   When Officer Baars arrived at
the residence at the same address on 59th Street on April 14,
2014, after the police had tracked the two homicide suspects
there, he observed that one of the suspects, Tibbs, resembled
the individual named "Cali" that had been involved in the
Shenanigan's robbery.


                                       4
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     ¶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

     4 The stipulation and the referee ignore the undisputed fact
that at the time of the arrest of Tibbs and Joseph Brantley on
April 14, 2014, KPD officers conducted a search of the residence
on 59th Street in which the two men had been found.           The
officers, who apparently did not include Officer Baars,
discovered a .32 caliber handgun and a quantity of marijuana
that had been stolen from Edwards.


                                      5
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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.


                                          6
                                                                    No.   2016AP2514-D



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
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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.



      5Officer Baars apparently was not subpoenaed for and did
not testify in Tibbs' trial regarding the Shenanigan's robbery.


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       ¶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

       6
       This report was not shared with Attorney Zapf until after
the events that underlie this disciplinary case.


                                               9
                                                                            No.     2016AP2514-D



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
                                                 10
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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
                                           11
                                                                            No.     2016AP2514-D



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
                                                12
                                                                                 No.     2016AP2514-D



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




                                                   13
                                                                               No.    2016AP2514-D



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 Miranda8 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


      7Quoting the stipulation, the referee also states that
Detective Kenesie initially rejected the third draft of the
supplemental report because it did not mention the planting of
the .22 caliber bullet.     He seems to use this quotation as
additional evidence that Detective Kenesie knew all along that
the bullet had been planted.      The quoted passage from the
stipulation on which the referee relied for this finding,
however, was merely describing the contents of the third draft;
it was not purporting to say that Detective Kenesie rejected the
third draft (i.e., the 11/11/14 supplemental report) or that the
reason he did so was the failure to mention the "planting" of
the bullet.
      8   Miranda v. Arizona, 384 U.S. 436 (1966).


                                                  14
                                                                    No.    2016AP2514-D



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


                                         15
                                                           No.   2016AP2514-D



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 time9 of the fact that Officer Baars
had apparently mishandled evidence and placed Officer Baars on




     9 The referee finds the statement that the chief of police
first learned of this situation on January 9, 2015, after
returning from a vacation, to be incredible because he cannot
believe that the chief of police would have been unaware for
over two months that one of his officers had engaged in the
criminal conduct of "planting" evidence.    There is nothing in
the record, however, to support an inference that Chief
Morrissey had learned of "planting" evidence even as of January
9, 2015, or to support an inference that he had learned of any
sort of mishandling of evidence by Officer Baars prior to
January 9, 2015.


                                      16
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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


      10
       In addition to the Kenesie Report that was completed on
January 15, 2015, a different KPD officer conducted an internal
affairs investigation pursuant to the police chief's directive
and prepared an internal affairs report dated January 28, 2015.
There is no dispute that neither the Kenesie Report nor the
January 28, 2015 internal affairs report were provided to
Attorney Zapf until after the events at issue in this
disciplinary proceeding.


                                          17
                                                                         No.     2016AP2514-D



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
                                              18
                                                                      No.       2016AP2514-D



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 should have known when he received this
report that it was not "direct regarding the issue of planting
evidence and [was] incomplete as to the resignation of [Officer
Baars] from the KPD."
      ¶34    On    January   26,    2015,       Attorney     Zapf     sent       identical
letters to Attorney Rose and Attorney Glinski.                      The letters were
copied to the judges for both the Tibbs (Judge Mary Wagner) and
the   Brantley      (Judge   Bruce        Schroeder)       criminal       cases.         The

letters     simply     stated      that    enclosed        with     the     letter       was
"additional miscellaneous discovery."                   The letter then listed
six   enclosed       documents,      one        of   which     was        the     11/11/14
supplemental report.         Having already inferred that Attorney Zapf
knew both that Officer Baars had planted evidence and that the
11/11/14 supplemental report was false and incomplete because it

did not explicitly say so, the referee further inferred that the
failure     of    Attorney   Zapf   to     explain     the    significance          of   the
11/11/14 supplemental report was an intentional attempt to hide
or downplay the evidence.
      ¶35    Attorney    Glinski     testified        in     this    matter       that   he
received the January 26, 2015 letter and the enclosed 11/11/14
supplemental report, but he did not understand the significance
of the report.        Attorney Rose claimed in his testimony that he
never received the January 26, 2015 letter and that he never
                                           19
                                                                                 No.    2016AP2514-D



checked the electronic docket for Tibbs' criminal case, which
would have alerted him to the existence of that letter.
       ¶36     After the January 26, 2015 letter had been sent, Tibbs
pled    guilty       to      felony       murder      and   agreed     to       testify       against
Brantley.           Attorney Zapf then notified Attorney Glinski that
Tibbs       should      be     added      to    the     state's      witness         list     in     the
Brantley case.
       ¶37     On       Monday,      February         23,   2015,     the        Brantley          trial
commenced.          A third co-defendant, Brandon Horak, testified that
he    had    made       arrangements           for the      purchase       of marijuana             from
Edwards, but that the arrangements had been a setup by himself,
Brantley       and       Tibbs      to    rob     Edwards      of    the        marijuana.            On

Thursday,         February        26,      2015,        Attorney     Zapf        called       Officer
Brandie Pie to testify.                   She testified that she had assisted in
the collection of evidence during the April 15, 2014 search of
the 59th Street home.                      Attorney Zapf did not ask about the
backpack, the ID, or the bullet during his direct examination.
On cross-examination, however, Attorney Glinski did ask about

the    collection         of     the     backpack       with   the    ID        card    and    bullet
inside.        Tibbs also testified during the state's case earlier
that day.          When asked about the backpack, Tibbs denied that it
belonged      to     him      and      denied     any     knowledge        of    a     .22    caliber
bullet.
       ¶38     Before          closing         arguments       the     following             morning,
Attorney Zapf advised Attorney Glinski and Judge Schroeder that
there       had     been       problems         regarding      the     collection             of     the
backpack,         the    ID    and       the    bullet,     and     that    Attorney          Glinski
                                                   20
                                                                       No.    2016AP2514-D



appeared     to       be   operating     under      a    misconception       about      those
items.      He also advised defense counsel for the first time that
Officer Baars had resigned.               The OLR alleged that the following
statement by Attorney Zapf to the court during this discussion
was false:

      What I would understand subsequently, although I don't
      have personal knowledge, and I don't have anything in
      documentation,    that    as    a   result    of     the
      misunderstanding or how those items got into the
      backpack or into evidence, Officer Baars resigned from
      the police department.    I don't know anything about
      discipline.     I don't know anything about prior
      history, but Officer Baars resigned as a result, in
      part, I would say, as a result of his handling or
      mishandling of evidence at the crime scene, or the
      shooting of the residence at 1208 59th Street (sic).
In his conclusions of law, the referee broke down this statement
into a number of constituent parts that he found to be false.
His findings will be addressed in the analysis of his legal
conclusions below.
      ¶39    The referee does not include the following facts in
his report, but they are acknowledged in the stipulation or are

otherwise        not       contested.          After     Attorney     Zapf       made    his
disclosure       on    the    morning    of     the     fifth   day   of   the    Brantley
trial, he and Attorney Glinski jointly telephoned Officer Baars.
During     that call, for         the first time            Officer Baars admitted
having brought both the ID card and the .22 caliber bullet to
the scene of the search and planting them in the backpack.                                 He
also admitted that his resignation had been "related partially
to   his    investigation        of     this    case     [i.e.,   Brantley's       case]."
After      the    court      learned     of     Officer     Baars'     admissions,        it

                                               21
                                                                             No.        2016AP2514-D



recessed the trial so that defense counsel could review the KPD
internal affairs report and Officer Baars' employment file and
prepare for testimony by Officer Baars.                            When the Brantley trial
resumed on March 2, 2015, Attorney Glinski called Officer Baars
as    a    defense      witness.           Officer      Baars      testified       that       he   had
planted both the ID card and the .22 caliber bullet in the
backpack, and that he had resigned from the KPD as a result of
his       actions       during       the    execution         of    the   search          warrant.
Attorney Zapf stipulated that the defense had not learned about
Officer Baars having planted the .22 caliber bullet until the
morning of February 27, 2015.                          Despite the jury hearing this
evidence, it still found Brantley guilty as charged.

          ¶40    Brantley filed a postconviction motion seeking a new
trial       on    the     grounds          that    the       prosecution       had        withheld
exculpatory evidence in violation of Brady v. Maryland, 373 U.S

83 (1963).          The circuit court denied the motion, finding that
evidence that Officer Baars had planted an ID card and a .22
caliber         bullet    was        not   exculpatory,            relevant,       or     a    Brady
violation.
          ¶41    As soon as Officer Baars had testified in the Brantley
case (even before the jury returned its verdict), Attorney Zapf
referred the matter to the Milwaukee County District Attorney's
Office,         which    ultimately         charged         Officer    Baars       with       felony
misconduct in office.                 Officer Baars pled guilty to that charge
and was convicted.
          ¶42    Tibbs also filed a postconviction motion asking for
plea      withdrawal.           In    response         to   the    motion,     Attorney            Zapf
                                                  22
                                                                         No.     2016AP2514-D



advised the court that Tibbs should be allowed to withdraw his
guilty     plea.       After    Attorney       Rose    conducted           discovery      and
obtained       the   testimony       of   Attorney       Zapf        and       various    KPD
officers, Tibbs withdrew his motion and allowed his conviction
and sentence to stand.
REFEREE'S LEGAL CONCLUSIONS

     ¶43    Based on         the facts he        found      and    the     inferences      he
drew,    the    referee      concluded     that       the      OLR      had     proven    the
allegations in Count 1 and Count 3.                   He concluded that the OLR
had not proven the allegations of a violation in Count 2.
     Count       1—Violation         of   Wis.     Stat.          § 971.23(1)(h)          and
SCR 20:8.4(f)

     ¶44    Count 1 of the OLR's complaint alleged that Attorney
Zapf had violated the Wisconsin criminal discovery statute, Wis.
Stat.    § 971.23(1)(h),        as    enforced     via       SCR     20:8.4(f).           The
discovery statute provides, in relevant part, as follows:

             (1)     WHAT A DISTRICT ATTORNEY MUST DISCLOSE
                     TO A DEFENDANT.        Upon demand, the
                     district   attorney    shall,   within   a
                     reasonable time before trial, disclose
                     to the defendant or his or her attorney
                     and permit the defendant or his or her
                     attorney   to   inspect    and   copy   or
                     photograph    all   of    the    following
                     materials and information, if it is
                     within   the   possession,    custody   or
                     control of the state:
                     * * *

                     (h)   Any exculpatory evidence.
     ¶45    The      referee    concluded      that      the      OLR    had     proven    by
clear, satisfactory, and convincing evidence that Attorney Zapf


                                          23
                                                                       No.     2016AP2514-D



had violated the discovery statute "by failing to fully disclose
information in his possession or otherwise available to him to
the    defense     in    both    the   Tibbs      and      Brantley    homicide          cases
regarding former Officer Baars' misconduct in planting evidence
at the scene of a homicide investigation, including the fact
that    Baars      had     resigned       from       the     KPD     because        of     his
misconduct . . . ."          The referee further concluded, although not
explicitly,       that   the     violation      of   the     discovery       statute,       by
itself, constituted a violation of SCR 20:8.4(f), which states
that it is professional misconduct for a lawyer to "violate a
statute, supreme court rule, supreme court order, or supreme
court decision regulating the conduct of lawyers."                           The referee

did not provide any analysis to support this conclusion of a
violation of the ethical rule.                  He did not provide a distinct
analysis     of    whether      Attorney    Zapf's       failure      to   disclose        was
negligent     or    intentional.           In    other      places    in     his    report,
however, the referee did state that he found Attorney Zapf's
conduct to have been intentional.

       Count 2—Violation of SCR 20:3.4(b)
       ¶46   The referee concluded that the OLR had not proven that
Attorney Zapf's examination of Officer Brandie Pie had violated
SCR 20:3.4(b), which states that a lawyer shall not "falsify
evidence, counsel or assist a witness to testify falsely, or
offer an inducement to a witness that is prohibited by law."
       ¶47   The    referee      stated    that      the    OLR's     theory       was   that
Attorney Zapf had failed to provide clarifying information at
the end of the afternoon of the fourth day of trial when Officer
                                           24
                                                                       No.     2016AP2514-D



Pie testified on cross-examination by the defense that she had
collected and photographed the backpack, the ID card, and the
.22 caliber bullet.          The referee concluded that Attorney Zapf's
disclosure    to     defense      counsel     and       the    court     the    following
morning before any further proceedings in the trial was a timely
action to correct or complete the record regarding the location,
collection, and identification of the ID card and the bullet.
Referee Flynn noted that Attorney Zapf had not personally asked
about those items.          Thus, his disclosure the following morning
was   effectively     the     first   time     that       he     could       correct    the
impression     created       by    Officer     Pie's          testimony        on   cross-
examination.       The referee found that this disclosure satisfied

Attorney Zapf's obligations under SCR 20:3.4(b).
      Count 3—Violation of SCR 20:3.3(a)(1)
      ¶48   The    referee     concluded      that       the    OLR    had     proven   by
clear, satisfactory, and convincing evidence that Attorney Zapf
had violated SCR 20:3.3(a)(1)11 by making false statements of
fact to a tribunal in his disclosure to the trial court on the

morning of Day 5 of the Brantley trial.                       The referee broke down
Attorney     Zapf's     statement      into         a    number        of     constituent
assertions, the truthfulness of which he analyzed individually.
      ¶49   First,     the     referee      characterizes             Attorney      Zapf's
statement to the court as asserting that he had no personal

      11
       SCR 20:3.3(a)(1) provides: "A lawyer shall not knowingly
make a false statement of fact or law to a tribunal or fail to
correct a false statement of material fact or law previously
made to the tribunal by the lawyer."


                                         25
                                                                     No.        2016AP2514-D



knowledge about the entire episode involving Officer Baars.                              The
referee states that the stipulation shows that Attorney Zapf did
have personal knowledge about Officer Baars' conduct because, as
the referee inferred, Attorney Zapf was told by the supervisory
KDP    officers       in    the    January    9,   2015    meeting     and       by    Chief
Morrissey during the January 19, 2015 meeting that Officer Baars
had planted evidence and that he had resigned because of the
planting of evidence.               Thus, the referee concludes that this
assertion by Attorney Zapf, as the referee characterized it, was
false.
       ¶50     Next,       the    referee     characterizes       Attorney            Zapf's
statement as claiming that he had no documentation about Officer

Baars' actions.            The referee acknowledges that Attorney Zapf had
no written documentation other than the 11/11/14 supplemental
report that he had provided to defense counsel, but the referee
still labels this assertion, as he characterizes it, as being
intentionally misleading and not truthful because Attorney Zapf
did have oral reports from KPD officers about Officer Baars'

misconduct.
       ¶51     Third,       the    referee     characterizes      Attorney            Zapf's
statement as having claimed that he did not know that Officer
Baars     had       resigned      because    of    his    misconduct       of     planting
evidence       in    the   backpack.         The   referee   concludes          that    this
assertion was not truthful because Attorney Zapf "knew, as of 19
January 2015, that officer Baars had resigned and the theory
that     the    resignation        was   related     to    the   evidence         planting
misconduct was a reasonable inference even though Officer Baars
                                             26
                                                                           No.     2016AP2514-D



did not give Chief Morrissey any definitive statement of the
reason    for     his     resignation."          In    other    words,           the     referee
concludes       this      assertion        of     knowledge,          as     the         referee
characterizes it, was not truthful because Attorney Zapf should

have known that it was reasonable to infer that Officer Baars
had resigned because he had planted evidence.
     ¶52    Fourth, the referee reads Attorney Zapf's statement as
including an assertion that he had no knowledge about any prior
discipline        being    imposed     on       Officer      Baars.              The     referee
concludes that this assertion was truthful.
     ¶53    Fifth,         the     referee        interprets          Attorney           Zapf's
statement as including an assertion that he had no knowledge

about "prior history."             The referee does not view this as prior
history about Officer Baars, but rather as saying that Attorney
Zapf had no knowledge about the prior history of the evidence
planting     by    Officer        Baars.         For   the     reasons           noted    above
regarding the two meetings with KPD personnel, the referee finds
this assertion, as he characterizes it, to be untrue.
     ¶54    Finally,        the    referee       characterizes         Attorney          Zapf's
statement as including an assertion that he had no opinion about
the reason why Officer Baars had resigned.                      The referee does not
find this to be false because it was an opinion rather than a
statement of fact.
REFEREE'S RECOMMENDATIONS AS TO SANCTIONS AND COSTS
     ¶55    The      OLR's        complaint       initially       sought           a     90-day
suspension,       and     its    counsel    reaffirmed         that    request           in   his
closing    argument.            Attorney    Zapf's      counsel       did        not     make   a
                                            27
                                                                         No.     2016AP2514-D



specific       recommendation          as     to    sanction,       arguing        at        the
conclusion of the evidentiary hearing that the OLR had failed to
prove any of the three charged counts and therefore that the
complaint should be dismissed in its entirety.
       ¶56    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.                             He did believe
that the fact that Attorney Zapf had been disciplined in 1985
for    also     failing       to    disclose       exculpatory          evidence       was     a

"disturbing" aggravating factor.                    The referee stated that he
believed      that   Attorney        Zapf's       conduct    had    stemmed       from       "an
effort to win regardless of the rights both sides in the matter
have   to     fundamental       fairness      in    the     trial."        Although          the
referee acknowledged earlier in his report that even at the time
of Attorney Zapf's disclosure on Day 5 of the Brantley trial,

Attorney Zapf did not know about the "cover-up" engaged in by
the KPD (as the referee believes), he faults Attorney Zapf for
failing to act as the "gatekeeper" to ensure that the defense
knew about what had occurred in the planting of evidence by
Officer      Baars   and      the   subsequent      cover-up       by    the    KPD.         The
referee       further      indicated        that    Attorney       Zapf's        untruthful
statements      to      the    court      when     he     ultimately       did     disclose
compounded the misconduct.


                                             28
                                                                         No.     2016AP2514-D



      ¶57   The     referee       recommended          that   the      court    impose    two
conditions on Attorney Zapf's reinstatement and resumption of
the practice of law.              First, the referee recommended that the
court require Attorney Zapf to undergo 25 hours of continuing
legal   education that focused                 on the duties           of a     prosecutor.
Second,     the     referee       recommended          that     the     court     condition
Attorney Zapf's license on never again acting as a prosecutor.
      ¶58   The     referee    also         recommended       that     Attorney    Zapf     be
ordered to pay the full costs of this disciplinary proceeding.
The OLR's supplemental statement of costs indicates that the
total     costs     of     this        case,        through     oral     argument,        were
$17,937.79.

ANALYSIS OF APPELLATE ARGUMENTS

      Count       1-Violation          of    Wis.       Stat.     § 971.23(1)(h)          and
SCR 20:8.4(f)
      ¶59   This     count        alleges       that      Attorney        Zapf     violated
SCR 20:8.4(f), which, among other things, makes it professional
misconduct     to    violate       a    statute        regulating       the     conduct    of
attorneys.     In this instance, the statute regulating the conduct
of   attorneys      that    Attorney         Zapf     allegedly        violated    was    the
Wisconsin     criminal     discovery statute, Wis.                   Stat.     § 971.23(1),
the relevant text of which is set forth in paragraph 44 above.
      ¶60   Attorney Zapf's primary argument on appeal regarding
Count 1 is that the OLR and the referee are expanding the scope
of the ethical rules to require a prosecutor to disclose more
than is required under Brady v. Maryland, 373 U.S. 83 (1963).
Attorney Zapf asserts that this court rejected that the duty to
                                               29
                                                                     No.    2016AP2514-D



disclose was broader under the Wisconsin discovery statute than
under Brady in In re Disciplinary Proceedings Against Riek, 2013

WI 81, 350 Wis. 2d 684, 834 N.W.2d 384.                       In that case, Sharon
Riek,     an    assistant    district    attorney        in    Racine      County,   was
assigned to prosecute a marijuana possession case against Tyrone
Smith.         Another passenger in Smith's vehicle, Isaiah Simpson,
confessed at a revocation hearing for Smith that the marijuana
in the vehicle had belonged to him, not Smith.                       Smith's defense
counsel         obviously     was      aware      of     Simpson's         confession.
Approximately        one    month     later,    Simpson        met   with     District
Attorney Michael Nieskes and again confessed that the marijuana
at issue had belonged to him.             District Attorney Nieskes wrote a

very short note indicating that Simpson had said the marijuana
was his.         Assistant District Attorney Riek was aware of the
conversation between District Attorney Nieskes and Simpson, but
she testified that she was unaware of the note until later.
Smith's     counsel    later    learned       that     Simpson     had     spoken    with
District       Attorney     Nieskes,    and    he      requested     copies    of     any
information       Simpson     had   provided    to      the    District     Attorney's
office.        At that point, Assistant District Attorney Riek found
the note from District Attorney Nieskes in a pile of papers on
her desk and sent a copy of it to Smith's counsel.
     ¶61       The   OLR    charged    Attorney      Riek     with   violating       both
SCR 20:3.8(f)(1)12 and Wis. Stat. § 971.23(1)(h), as enforced via


     12   SCR 20:3.8(f)(1) provides as follows:

                                                                           (continued)
                                          30
                                                                   No.    2016AP2514-D



SCR 20:8.4(f).        The OLR appealed the referee's recommendation
that all counts be dismissed.              It argued in this court that a
prosecutor's disclosure obligations under SCR 20:3.8(f)(1) were
broader than the disclosure obligations imposed by Brady and its

progeny.       This   court    rejected      that     argument.           Riek,    350
Wis. 2d 684, ¶29 ("We reject the OLR's proffered interpretation
of SCR 20:3.8(f)(1).").            The court further held that District
Attorney Nieskes' note was not material under SCR 20:3.8(f)(1)
because the defense already knew from the revocation hearing
that Simpson had claimed ownership of the marijuana.
       ¶62   Based on the proposition that the discovery statute
incorporates all of the elements outlined in Brady, including
that the undisclosed evidence was material, Attorney Zapf argues
that he did not violate the discovery statute here because the
evidence was not material.           He relies on the following facts to
show the lack of materiality.               He asserts that he was orally
told    in   the   January    9,    2015    meeting    that       an     officer   had
inadvertently      "mishandled      evidence"    during       a    search.         The

            (f) A   prosecutor,   other   than   a   municipal
       prosecutor, in a criminal case or proceeding that
       could result in the deprivation of liberty shall:

            (1) make timely disclosure to the defense of all
       evidence or information known to the prosecutor that
       tends to negate the guilt of the accused or mitigates
       the offense, and, in connection with sentencing,
       disclose   to  the  defense   and  the  tribunal  all
       unprivileged mitigating information known to the
       prosecutor, except when the prosecutor is relieved of
       this responsibility by a protective order of the
       tribunal; . . . .


                                       31
                                                                               No.       2016AP2514-D



mishandled evidence discussed at that time, however, was only
the    ID    card, which Attorney                 Zapf     concluded         was    not material
because      Tibbs'        identity         was    not    at     issue    in       his    case     and
therefore      the     ID    had       no    bearing      on    his    guilt       or    innocence.
Attorney Zapf acknowledges that the supervisory officers also
told him about Officer Baars' strange discussion of having false
memories       of     possibly         introducing          a    bullet        to       the   search
location, but he emphasizes that the officers said Officer Baars
expressly denied having planted the bullet.                               Moreover, Attorney
Zapf    says    that        he    reasonably        concluded         that    any       information
about a .22 caliber bullet was not material since the weapon
used to kill Edwards had been a .32 caliber handgun.

       ¶63     Attorney Zapf also argues that the proceedings in the
two    criminal       cases        following        his    disclosure         prove       that    the
disclosure      of     neither         piece       of    evidence      was     material.            In
Brantley's          case,        the   jury       heard    Officer        Baars         confess    to
planting both the ID card and the bullet, but the jurors still
found Brantley guilty.                 Thus, the lack of disclosure clearly did

not    affect        the     outcome        of     that    trial.            Similarly,        after
conducting discovery, Tibbs withdrew his motion to rescind his
guilty plea, which, according to Attorney Zapf, shows that Tibbs
concluded that Officer Baars' confession would not change the
outcome of his case.
       ¶64     In    response,         the    OLR       starts    from    the       premise       that
Officer      Baars     engaged         in    "criminal         actions"      that       constituted




                                                   32
                                                                     No.    2016AP2514-D



"serious police misconduct."13           From that basis, it argues that,
of   course,      the   defense    should     have    been    made    aware       of    the
information.
       ¶65    The OLR faults Attorney Zapf for focusing only on the
specific pieces of evidence——the ID card and the .22 caliber
bullet——and       failing   to     acknowledge    that    the     act      of    planting
evidence, by itself and regardless of what items were planted,
was exculpatory information that should have been disclosed.                             It
points out that the referee properly took this wider view of
what    should have been disclosed.               Noting      that Referee            Flynn
previously served as a circuit court judge, it argues that his
determination        that    "police     misconduct"          always       constitutes

exculpatory evidence per se that should be disclosed "should be
given great deference."
       ¶66    The    OLR    then     proceeds    to      distinguish            the    Riek

decision.         It points out that in Riek, unlike in the present
case,       the   defense    was     already     aware       of   the      exculpatory
information (Simpson's confession of owning the marijuana), and
what was not disclosed (District Attorney Nieskes' note) was
duplicative.        On the other hand, according to the OLR, what was
disclosed by Attorney Zapf (namely, the 11/11/14 supplemental



       13
       The OLR's brief does not distinguish between what Officer
Baars ultimately admitted to doing (i.e., planting evidence) and
what he initially told Detective Kenesie that he had done, which
was making a mistake in allowing Detective Traxler to have a
wrong impression of the source of the ID and in allowing the ID
to be collected as evidence in connection with the backpack.


                                         33
                                                                     No.    2016AP2514-D



report) was vague and could not be understood without knowing
the background of Officer Baars' discussion with his superior
officers, which Attorney Zapf did not disclose until Day 5 of
the   Brantley    trial.      The       OLR   argues    that     the        undisclosed
information here, Officer Baars' planting of evidence, was not
duplicative of information the defense already knew nor was it
irrelevant.      It points to the testimony of both Attorney Rose
and   Attorney   Glinski    that     this     information       would        have     been
important to them and would have altered their strategies in
representing their respective clients.
      ¶67   Neither   party's      analysis     of     this    count        is   on    the
money.      First, Attorney Zapf reads our decision in Riek too

broadly.      When    we   said    in    that    case    that        a     prosecutor's
obligation to disclose was limited to the contours of Brady and
its progeny, we were interpreting only a prosecutor's obligation
under SCR 20:3.8(f)(1).       Riek, 350 Wis. 2d 684, ¶¶25-36.                    We did
not hold in that case that a prosecutor's obligation under the
Wisconsin discovery statute, as enforced via SCR 20:8.4(f), was
entirely congruent with the obligation as set forth in Brady.
      ¶68   Indeed, in a case cited in neither party's brief in
this court, a fact that is of some moment, as explained below,
we specifically acknowledged that there are certain differences
between the Wisconsin criminal discovery statute and Brady.                            See
State v. Harris, 2004 WI 64, 272 Wis. 2d 80, 680 N.W.2d 737.                           In
that case the prosecution did not disclose until after Harris
had   pled guilty that the          victim, B.M.M.,           only       several weeks
before making allegations against Harris, had made an allegation
                                         34
                                                                            No.     2016AP2514-D



that her grandfather had sexually assaulted her on two occasions
by touching her in a manner similar to the manner she claimed
Harris had followed.             This court characterized this information
as exculpatory impeachment evidence and ruled that the failure
to    disclose     this        exculpatory        impeachment          evidence       did    not
violate Harris's constitutional rights under Brady because the

United States Supreme Court in United States v. Ruiz, 536 U.S.
622, 633 (2002), had held that there is no constitutional right
of    a   defendant       to     receive      impeachment          evidence,          even     if
exculpatory, prior to entry of a plea bargain.                              See Harris, 272
Wis. 2d 80, ¶23.
      ¶69    We    did    not,       however,      rule    that       the     same    analysis

applied     to    the    claim    that      the    prosecution         had     violated      the
criminal    discovery          statute.       We    concluded         that     the    analysis
under the discovery statute was somewhat different because of
the   wording      of    the    statute,      although       we       did    use     the    Brady
framework for parts of the analysis.                        In particular, we said
that "§ 971.23(1)(h) requires, at a minimum, that the prosecutor
disclose     evidence          that    is     favorable          to     the        accused     if
nondisclosure       of    the     evidence        undermines          confidence       in     the
outcome of the proceeding."                  Id., ¶27.            With respect to the
specific evidence that had not been disclosed, we concluded that
although the evidence did not have to be disclosed pursuant to
Brady     because        Harris       had    pled         guilty,       the        exculpatory
impeachment       evidence       should      have     been       disclosed          under    the
Wisconsin discovery statute because the evidence cast doubt on
the   credibility        of    the    victim,      who     was    the       state's    primary
                                             35
                                                                                No.    2016AP2514-D



witness, and the lack of disclosure undermined our confidence in
the outcome of Harris's criminal case, given the circuit court's
acceptance of Harris's offer of proof that he would not have
pled guilty if he had known the undisclosed evidence.
       ¶70    In     addition,        in     Harris        we     also        considered            the

difference      in     timing       under    Brady    versus          under      the       Wisconsin
discovery statute.              While Brady is not violated if there is
delayed       disclosure,       even        during    a    trial,          so     long      as      the
disclosure comes soon enough to allow the defense to use the
information, the discovery statute requires disclosure "within a
reasonable time before                trial."        Thus, this            court       ruled      that
Brady's       timing    requirement          could    not        be    imported            into    the
statutory       analysis        because       the    statute          imposed          a    broader
obligation than the United States Constitution.                                       Harris, 272
Wis.    2d.    80,     ¶37.      We    concluded          that    the      statute          required
exculpatory evidence to be disclosed sufficiently prior to trial
such that there remains "sufficient time for its effective use"
at trial, even if the defendant ultimately pleads guilty.                                         Where
Harris had pled guilty two weeks prior to his scheduled trial
date, this court concluded that disclosure had been required
prior    to    the     date     of    his     plea    because         he    could          not     have
effectively used the information at trial if disclosure occurred
after that point.         Id., ¶38.
       ¶71    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.
                                               36
                                                                                   No.    2016AP2514-D



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).
      ¶72       First, we consider whether Attorney Zapf should have
disclosed        the    fact     that,         as    he    alleges          he     understood      the
situation       at     the    time,       Officer        Baars    had       made    a    mistake    in
placing the ID card into the backpack once he had given it to

Detective        Traxler       and       the     detective,           operating          under    that
misimpression, had ordered that the ID card be photographed and
collected as evidence.
      ¶73       We     begin    with       the      words        of    the       section     of    the
discovery statute that the OLR alleges Attorney Zapf violated.
Boiled to its essence, the statute requires district attorneys

to disclose to criminal defendants or their attorneys, within a
reasonable time prior to trial, information or materials that
are within the possession, custody or control of the state and
that qualify as "exculpatory evidence."                               In Harris, we defined
exculpatory          evidence       as    evidence         "that       is    favorable       to    the
accused if nondisclosure of the evidence undermines confidence
in the outcome of the proceeding."                        Harris, 272 Wis. 2d 80, ¶27.
      ¶74       We     have    no        difficulty        concluding            that     the     mere
placement of the ID card into the backpack, if done by Officer
                                                    37
                                                                             No.       2016AP2514-D



Baars    through         a     mistake    or     even       with    negligence,          was     not
exculpatory evidence the nondisclosure of which undermines our
confidence          in   the     outcome        of    either       Tibbs'     or       Brantley's
criminal case.           The ID belonged to Tibbs so it had no bearing on
Brantley's      case.           It     also    was    not    exculpatory         as      to    Tibbs
because, as Attorney Zapf points out, there was no question of
Tibbs'    identity in            the    case alleging his involvement                         in the
homicide       of    Edwards.            Thus,       Attorney       Zapf    could       not     have
violated       the        discovery           statute,       thereby        also        violating
SCR 20:8.4(f), by failing to disclose that Officer Baars had
"placed" the ID card into the backpack.                            In any event, Attorney
Zapf     did    disclose          that        fact    when     he     sent       the     11/11/14

supplemental         report      to     defense       counsel       and    the     two    circuit
courts because that report specifically said that Officer Baars
had "placed" the ID card into the backpack.
       ¶75     What about the bullet?                  Until Officer Baars admitted
that he had planted the bullet during his telephone conversation
on the fifth day of the Brantley trial, there is no evidence

that supports a finding of fact that Attorney Zapf knew that
Officer Baars had "placed" the bullet into the backpack.                                        Even
the referee acknowledges that at most Attorney Zapf was told
that Officer Baars had "possibly" introduced the bullet into the
backpack.           Even if Attorney Zapf had been clearly told that
Officer      Baars       had    definitely       introduced         the    bullet        into    the
backpack, through a mistake or through negligence, the analysis
would be the same as for the ID card.                              The bullet that killed
Edwards was a .32 caliber bullet.                            The gun that fired that
                                                 38
                                                                   No.    2016AP2514-D



bullet was recovered from the residence on 59th Street the day
before the search in which Officer Baars was involved.                           Thus,
the presence of a .22 caliber bullet had no relevance to Tibbs'
or Brantley's involvement in Edwards' homicide, and the failure
to disclose the introduction of that bullet does not undermine
in any way our confidence in Tibbs' conviction following the
entry of his guilty plea or in Brantley's conviction following
his trial.
       ¶76   The OLR, however, focuses on the referee's findings
that the relevant figures in the KPD knew that Officer Baars had
"planted"    the   ID   card    (and      possibly       the   bullet)     and     that
Attorney Zapf knew or should have known that same fact from his

interactions with them (his meeting with the officers on January
9, 2015, his meeting with Chief Morrissey on January 19, 2015,
and his receipt of the allegedly false and incomplete 11/11/14
supplemental report).        The OLR argues that, whether or not the
ID card and the bullet themselves were exculpatory, the fact
that the ID card (and possibly the bullet) had been planted was

exculpatory because it would have allowed the defense to argue
to a jury that the police investigation had been tainted.
       ¶77   The answer to this argument is that we are deciding
whether Attorney Zapf, not the state, violated SCR 20:8.4(f) by
personally    violating      the   discovery           statute.      In    Riek,     we
concluded that in order for a district attorney to be found to
have   violated    his/her     obligations        to    disclose   evidence      under
SCR 20:3.8(f)(1), the OLR must prove by clear, satisfactory, and
convincing    evidence    not      only        that    the   attorney     failed    to
                                          39
                                                                            No.      2016AP2514-D



disclose     evidence          that     should       have        been     disclosed         under
applicable law, but also that the attorney's failure to disclose
was more than carelessness or negligence on the part of the
attorney.     Riek, 350 Wis. 2d 684, ¶45.

      ¶78    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.

      ¶79    As the trier of                fact,   the     referee       was     entitled     to
accept or reject Attorney Zapf's denial of having been told that
the ID had been planted, but the only way that the referee could
                                              40
                                                                              No.    2016AP2514-D



have found that the KPD officers told Attorney Zapf during the
January 9, 2015 meeting that the ID card had been "planted" by
Officer      Baars    was    to    infer     that      fact.           Such    an    inference,
however, must be a reasonable one based on the evidence.                                           It
cannot simply be the referee's speculation.
       ¶80    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.                                         The
only way that the referee appears to have been able to reach
that    inference      was       to stack    it       on top       of a       long    series       of
underlying inferences regarding what Officer Baars communicated
to   Detective       Kenesie,       what    Detective            Kenesie      and     other      KPD

officers knew based on Officer Baars' statements, what Chief
Morrissey knew of Officer Baars' conduct, and what Detective
Kenesie and others did to "falsify evidence" and to "cover-up"
Officer      Baars'     "planting"         of     evidence.             Although          we     have
questions about these inferences by the referee as they relate
to     the    actions       of     the     police       department,            we     need        not

definitively         determine      whether          those       inferences         are    clearly
erroneous.      Even if the KPD had knowledge that Officer Baars had
done    something      more       than   just        made    a    mistake,      to        make    the
ultimate inference that Attorney Zapf also learned that fact
from    Detective      Kenesie      at     the January            9,   2015    meeting         there
would have to be some basis in the record to make that inference
reasonable.      There simply is no basis in this record to jump to
that    conclusion,         so    any    finding       to    that      effect        is    clearly
erroneous.
                                                41
                                                                          No.     2016AP2514-D



       ¶81    The     referee      also    asserts      that    Attorney        Zapf     should
have   known     from      what    was    communicated         to   him    and        from   the
incomplete      nature      of     the    11/11/14       supplemental           report       that
Officer Baars had "planted" the evidence and that he therefore
had an obligation under the discovery statute to disclose that
information to counsel for Tibbs and Brantley.                                 The referee,
however, acknowledges that Attorney Zapf had no knowledge at the
time of what the referee, in hindsight, infers was manipulation
of reports, lying, evidence falsification, and a cover-up by the
KPD.     An assertion that Attorney Zapf should have drawn the same
inferences as the referee did at a later time with information
that   was not available             to    Attorney      Zapf does        not     constitute

clear,       satisfactory,        and     convincing      evidence        of     an    ethical
violation by Attorney Zapf.
       ¶82    The referee also faults Attorney Zapf for basing his
analysis of whether he was required to disclose the introduction
of the ID (and possibly the bullet) into the backpack on the
materiality      of    those      items     to    the    prosecution       of     Tibbs      and

Brantley under Brady.              As we have just determined, however, one
cannot on this record make a finding that Attorney Zapf had
actual knowledge that the ID card (and possibly the bullet) had
been "planted."         In the absence of knowledge of "planting," the
analysis becomes much more complex, especially where the charge
in   this     case    is    that     Attorney      Zapf       violated     the        discovery
statute.         We    note       that    neither       the    referee      nor       the     OLR
acknowledged the case law which holds that there are differences
in analysis under the discovery statute and Brady.                              The referee
                                             42
                                                                    No.   2016AP2514-D



and the OLR, however, urge us to discipline Attorney Zapf for
failing to conduct a legal analysis that they also did not fully
make.        There is simply no evidence to suggest that Attorney
Zapf's analysis in the midst of the prosecution, to the extent
it might have been erroneous, was the product of something more
than negligence or carelessness.                 See Riek, 350 Wis. 2d 684,

¶45.     For that additional reason, the OLR also cannot meet the
clear, satisfactory, and convincing standard for demonstrating a
violation      of    SCR    20:8.4(f).      Accordingly,          Count   1   must    be
dismissed.
       Count 2—Violation of SCR 20:3.4(b)
       ¶83    The OLR does not appeal from the referee's conclusion

that it failed to demonstrate a violation of SCR 20:3.4(b) in
connection with Officer Pie's               testimony.       We     agree with       the
referee's conclusion that this count should be dismissed.                       There
is no evidence in this record that, even if Officer Pie gave
false testimony, Attorney Zapf ever counseled or assisted her to
do so.       Attorney Zapf never asked her any questions about the
backpack, the ID card, or the .22 caliber bullet.                     To the extent
that Officer Pie answered questions about those items on cross-
examination         that    might   have   contributed       to    defense    counsel
having an inaccurate understanding of how those items had been
found,    Attorney         Zapf   took   steps   as   soon    as    practicable      to
correct any misimpression defense counsel or the court may have

had.




                                           43
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       Count 3—Violation of SCR 20:3.3(a)(1)
       ¶84    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.
       ¶85    To understand how the referee's characterization                              of
Attorney      Zapf's statements in          court     or    the    false         natures     of
those statements were clearly erroneous, it is helpful to set
forth again what he actually said:

       What I would understand subsequently, although I don't
       have personal knowledge, and I don't have anything in
       documentation,    that    as    a   result    of     the
       misunderstanding or how those items got into the
       backpack or into evidence, Officer Baars resigned from
       the police department.    I don't know anything about
       discipline.     I don't know anything about prior
       history, but Officer Baars resigned as a result, in
       part, I would say, as a result of his handling or
       mishandling of evidence at the crime scene, or the
       shooting of the residence at 1208 59th Street (sic).
       ¶86    First, the referee asserts that Attorney Zapf falsely
told    the   court    that   he     had   no   personal     knowledge           about      the
entire    episode      involving      Officer    Baars.           That      is      not    what

                                           44
                                                                            No.        2016AP2514-D



Attorney Zapf said.              He stated that he had no personal knowledge
"that as a result of the misunderstanding or how those items got
into the backpack or into evidence, Officer Baars resigned from
the    police      department."           His    claim       of    a     lack     of     personal
knowledge related to the reasons for Officer Baars' resignation,
not to the episode as a whole.                         The referee's finding of a
falsity in this regard is therefore clearly erroneous.
       ¶87    Second,       the    referee       found    that          Attorney        Zapf   had
claimed      in    the statement         that    he    had    no documentation about
Officers Baars' actions.                Again, that is not what Attorney Zapf
said.        As with his lack of personal knowledge, the lack of
documentation referenced in the statement related to the reasons

for Officer Baars' resignation from the police department, not
to his conduct during the search or during the preparation of
the drafts of the supplemental report.                            The referee does not
find that Attorney Zapf did, in fact, have documentation in his
possession as to the reasons for Officer Baars' resignation.
This claimed falsity is therefore also clearly erroneous.

       ¶88    Third, the referee does track what Attorney Zapf said
by     asserting         that    his    statement      that       he     had      no     personal
knowledge         that     Officer      Baars    had     resigned         because         of   his
misconduct in planting evidence was untruthful.                                   The referee
found this statement to be false because Attorney Zapf "knew"
that     Officer         Baars    had    resigned      and        the    theory         that   the
resignation was due to the planting of evidence was a reasonable
one.     Attorney Zapf, however, did not say to the court, that he
did not have personal knowledge of the fact of Officer Baars'
                                                45
                                                                          No.    2016AP2514-D



resignation so that cannot have been a false statement.                               He also
did not say to the court that the theory about the resignation
being due to the planting of evidence was an unreasonable one.
What    Attorney     Zapf     said    is     that    he     did     not    have       personal
knowledge as to whether that was the reason for Officer Baars'
resignation.         The     referee       did    not   find       that    Attorney         Zapf
actually had such personal knowledge.                      Therefore the finding of
a false statement in this regard is clearly erroneous.
       ¶89    Finally, the referee found that Attorney Zapf falsely
asserted that he had no knowledge about the prior history of
Officer Baars' planting of evidence during the April 15, 2014
search.       Again, that is not what Attorney Zapf said.                             He said

that     he   "didn't      know     anything        about    discipline"          and       then
immediately followed that statement by saying that he "didn't
know    anything    about     prior    history."            It     is    clear    from      this
context that Attorney Zapf's statement about a lack of knowledge
about "prior history" related to a lack of knowledge about prior
history of discipline.               Attorney Zapf did not say he had no

knowledge     at   all     about     the    April    15,     2014       execution      of    the
search    warrant     or    Officer        Baars'    subsequent         conduct       in    this
case.     Since the referee did not find that Attorney Zapf did, in
fact, have knowledge about "prior history" of discipline imposed
on     Officer     Baars,     and    the     OLR     has     not        shown    by     clear,
satisfactory,       and     convincing       evidence       that    Attorney      Zapf       did
have such knowledge of "prior history," the referee's finding of
falsity in this regard was also clearly erroneous.


                                             46
                                                                No.        2016AP2514-D



     ¶90   When one parses what Attorney Zapf said to the court,
there is no basis on which to say that the OLR has demonstrated
by   clear,   satisfactory,        and    convincing       evidence        that    his
statements constituted false statements of fact to a tribunal.
Accordingly, Count 3 must be dismissed.
     ¶91   Having     determined    that      the   OLR   failed      to    meet   its
burden to prove each of the three counts, we conclude that the
disciplinary complaint against Attorney Zapf must be dismissed.
In light of the complete dismissal of the complaint, we do not
require    Attorney    Zapf   to    pay       any   of    the   costs        of    this
proceeding.
     ¶92   IT IS ORDERED that the disciplinary complaint against

Robert Zapf is dismissed.
     ¶93   IT IS FURTHER ORDERED that no costs will be imposed.




                                         47
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