Bruce Vielmetti

Milwaukee Journal Sentinel

Recently retired Kenosha County District Attorney Robert Zapf has been charged with ethics violations for his handling of a homicide prosecution in which a former police officer admitted to planting evidence.

A complaint filed Dec. 23 by the Office of Lawyer Regulation accuses Zapf of three counts or professional misconduct related to the 2015 prosecution of two men involved in a 2014 shooting death. It comes 16 months after a Kenosha activist and two lawyers filed their own complaints with OLR over the case.

"It's not how I was hoping to start my retirement," Zapf said when reached at his home Wednesday.

Zapf announced in March that he would not seek re-election in the fall. His longtime assistant and deputy Michael Graveley ran unopposed and was scheduled to be sworn into office Wednesday.

The OLR charges focus on Zapf's claimed failure to fully and timely disclose information to the defense that a Kenosha officer had planted evidence and then resigned and was facing a possible criminal investigation.

Zapf's attorney, Michael Younglove, said, "Based on our review of the hundreds of documents Mr. Zapf has provided the OLR, we think he has complied with all his duties regarding disclosure." Younglove noted the OLR complaint is only that, and he will be filing a formal response before the Supreme Court decides whether to appoint a referee in the matter.

"We're disappointed the OLR decided to go this route," Younglove said. "Mr. Zapf has many years of doing good things for Kenosha County."

Case timeline

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

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

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

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

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

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

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

Prosecutors from Milwaukee County later charged Baars with misconduct in public office and obstruction. He pleaded guilty and was sentenced to a year of probation.

The OLR complaint says Zapf "failed to fully disclose information in his possession or otherwise available to him" to the defense counsel for Tibbs and Brantley, allowed the other officer's testimony about the ID card and bullet evidence and lied to the court when he finally did reveal the problem but said he had no "personal knowledge" or "anything in documentation" about Baars' resignation for misconduct.

Brantley was convicted at trial and sentenced to 23 years in prison. At a later hearing in 2015, defense attorneys questioned police officials and Zapf about when and what they knew concerning Baars' odd behavior to determine whether Tibbs might want to withdraw his plea. He did not, and was sentenced to 16 years in prison.

Zapf has been an OLR target as DA before. In 1985, he was sanctioned by the state Supreme Court for failing to disclose pretrial material and contacting a defendant without going through his attorney.

That was during Zapf's first stint as DA, from 1980 to 1988. After several years out of office, he returned in 2005 when he was appointed by then-Gov. Jim Doyle.