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Referee: Retired DA should be suspended for 1 year, permanently banned from prosecuting cases

By: Erika Strebel, [email protected]//August 17, 2017//

Referee: Retired DA should be suspended for 1 year, permanently banned from prosecuting cases

By: Erika Strebel, [email protected]//August 17, 2017//

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A referee is recommending that the Wisconsin Supreme Court suspend a former Kenosha County District Attorney’s license for at least a year and permanently ban him from working as a prosecutor.

The referee’s recommendations stem from an Office of Lawyer Regulation complaint filed last year, charging Robert Zapf with three counts of misconduct involving two related homicide cases and asking that his license be suspended for 90 days.

Zapf is alleged to have failed to tell defense counsel in both cases that a Kenosha police officer had planted an ID card and bullet while searching a defendant’s home, and that the officer had resigned because of that conduct.

Also, the complaint alleged that Zapf lied in court after a jury trial in 2015, telling the judge that he was not aware of the officer’s misconduct and resignation and had no documentation of those events.

Zapf also failed to tell the court during a trial that the testimony about the ID and bullet was incomplete, according to the OLR.

The referee in the case, retired Judge Dennis Flynn, held a hearing in the case in July. In an 85-page report filed Thursday, Flynn recommended that Zapf’s license be suspended for at least a year – four times longer than the discipline the OLR had sought.

Zapf may choose to appeal Flynn’s recommendations. Zapf’s attorney, Michael Younglove, said Thursday that he and his client will be reviewing the report to decide what their next steps will be.

“We are extremely disappointed in the decision,” said Younglove.

In his recommendations, Flynn noted that Zapf had said little about what sort of discipline would be appropriate should he be found to have engaged in misconduct, arguing mainly that the OLR had not proved all three charges of misconduct and that they all should be dismissed.

Flynn disagreed with that contention in Thursday’s report.

“This matter reflects the actions of a prosecuting District Attorney taking action or not taking action in 2 very important homicide cases in an effort to win regardless of the rights both sides in the matter have to fundamental fairness in a trial,” he wrote.

In addition to recommending the year-long suspension, Flynn called for Zapf to pay all costs of the disciplinary proceeding and complete 25 hours of continuing legal-education courses on attorney and prosecutorial ethics in criminal cases. He also recommended that Zapf, even after the end of his suspension, never be allowed to work as a prosecutor in any district attorney’s office.

“Our communities need to be safe for our citizens,” wrote Flynn. “But at the same time, the ‘hide the truth and win at all costs’ approach, evidenced here by the actions of this prosecutor, acted to undermine the ability of our citizens to have confidence in the outcomes of our criminal prosecutions and the sentences that result from them.”

The Wisconsin Supreme Court will review Flynn’s recommendations and issue a final decision in the matter.

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