Office of Lawyer Regulation v. Zapf (In Re Disciplinary Proceedings Against Robert Zapf)

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
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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.

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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.

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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.

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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.

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 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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 No. 2016AP2514-D

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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 No. 2016AP2514-D

¶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
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 No. 2016AP2514-D

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
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 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
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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

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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).

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 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

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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.

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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.

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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
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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
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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
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 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
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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
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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
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 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."

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 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
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 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.

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 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
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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; . . . .

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 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

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 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
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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.
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¶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
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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.

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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

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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'
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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.

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¶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.

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