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Ex-DA faces suspension after failing to disclose that cop planted evidence in murder case

Kenosha County Courthouse

Ex-DA faces suspension after failing to disclose that cop planted evidence in murder case

An 85-page report filed with the Wisconsin Supreme Court by retired Circuit Judge Dennis Flynn found that former Kenosha County District Attorney Robert Zapf committed multiple instances of professional misconduct — and that Zapf deserves to be suspended from practicing law and prohibited from ever again being a prosecutor.

The violations go back to to Zapf’s conduct when he was prosecuting Markese Tibbs and Joseph-Jamal Brantly for the murder of Anthony Edwards. Although Zapf had a duty to disclose Kenosha Officer Kyle Baars’ misconduct — which involved planting a .22 caliber bullet and Tibbs’ ID card at a house that was searched as part of the investigation — he did not promptly share the information. In fact, Zapf went so far as to keep Baars on the prosecution’s witness list despite knowing that Baars had resigned as a result of his flagrant misdeeds.

Baars did not testify at trial, although another police officer testified about finding the ID card and bullet, and photos of both were shown the jury with no mention that Baars had planted them.

Zapf only disclosed the information when Brantly’s criminal trial was almost over. By that point, Tibbs had already cut a deal and agreed to testify against Brantly.

According to the Milwaukee Journal Sentinel, “Only after the defense had rested did Zapf tell the judge there were problems with that evidence, and that Baars had resigned.”

Despite protestations by defense counsel that the misconduct justified a mistrial, the trial court denied their motion.

Brantley was convicted and sentenced to 23 years in prison. Tibbs was sentenced to 16 years in prison.

The Wisconsin Office of Lawyer Regulation later filed three counts against Zapf.

Zapf sought to defend himself by claiming that “the evidence planting information was not relevant, material or exculpatory.” Zapf also asserted that he only had to disclose written reports about misconduct, and because he learned about Baars’ “planting” and subsequent resignation orally (from, among others, the Chief of Police), he somehow did not have an affirmative duty to share the information with the defense.

Flynn flatly rejected Zapf’s excuses.

“The extraordinary evidence of a KPD officer planting evidence in a homicide case and then subsequently resigning because of that misconduct was exculpatory evidence in and of itself,” Flynn wrote. “This is so whether the planted evidence is determined to be relevant or not in the case.”

Flynn also emphasized that the role of prosecutors is to ensure “that justice shall be done,” and noted that the Mission Statement for the Kenosha County District Attorney’s Office that prosecuted Tibbs and Brantley says, in part:

… It is important to keep in mind that the District Attorney is the gatekeeper to the criminal justice system. As such, his job is not merely to obtain convictions but to seek justice.

Flynn also dismissed Zapf’s argument that the strength of other evidence against Tibbs and Brantly somehow lessened the degree of his responsibility and ultimate wrongdoing:

The law presumes honesty and integrity by those who make gatekeeping decisions regarding the production of exculpatory evidence. … Respondent confused his belief in the strength of his case and the guilt of the persons he charged with crimes with the right those persons have to fundamental fairness in the trial process.

The Wisconsin Supreme Court, which appointed Flynn as a “referee” to gather evidence, conduct hearings, and offer his recommendations, will make the final decision on Zapf’s culpability and punishment. According to the Wisconsin Courts System, “The Supreme Court reviews referee reports and independently determines whether to accept the referee’s recommendation.”

Baars, the officer involved, eventually pleaded guilty to felony misconduct and was sentenced to a year of probation.

Zapf chose not to seek reelection as Kenosha County District Attorney in 2016.

Thanks to Jake Sussman.

Keith Tharpe’s Scheduled Execution Tests Our Tolerance for Racial Bias in Executions

There are two types of Black people, the juror said, and Tharpe wasn’t a “good” one.

Jones County Courthouse
Wikimedia Commons

Keith Tharpe’s Scheduled Execution Tests Our Tolerance for Racial Bias in Executions

There are two types of Black people, the juror said, and Tharpe wasn’t a “good” one.

In 1991, a jury in Jones County, Georgia, sentenced Keith Tharpe, a Black man, to death for the murder of his sister-in-law. Seven years later, Tharpe’s defense counsel met with a white juror from Tharpe’s trial as part of their routine investigation of the case. The juror explained to the lawyers why he voted for Tharpe’s death, and then reviewed, edited, and signed a sworn statement, which set out his views of race and Tharpe:

I have observed there are two types of Black people: 1. Black folks and 2. Niggers. For example, some of them who hang around our little store act up and carry on. I tell them, “nigger, you better straighten up or get out of here fast.”

I felt Tharpe who wasn’t in the “good” black folks category in my book, should get the electric chair for what he did. . . .

After studying the Bible, I have wondered if black people even have souls. Integration started in Genesis. I think they are wrong. For example, look at O.J. Simpson. That white woman wouldn’t have been killed if she hadn’t married that black man.

The defense lawyers filed the juror’s signed statement in court the next day.

Only a unanimous jury can convict and impose a death sentence in Georgia, and the law has long recognized that misconduct by a single juror requires reversal. The juror’s stunning admission of racially biased views, including his view of the defendant, should have led to a hearing and a new trial. Instead, Tharpe faces possible execution next Tuesday, September 26, 2017.

In what threatens to be a grave miscarriage of justice, no court has ever considered the testimony about this misconduct. The federal courts must act now under the law’s constitutional promise of equality and fairness and reopen his case so that his claim of racial bias can finally be heard.

What should have happened in 1998 is that the then-elected prosecutor for the Ocmulgee District, Joseph Briley, and the Georgia Attorney General should have responded to the juror’s affidavit by announcing they would not tolerate racial bias in capital sentencing and agreeing that Tharpe should get a new trial.

Instead, counsel from the Georgia Attorney General’s office responded by trying to minimize the juror’s statements and asking the court to ignore the bias. First, they went to see the juror the next day after reading his statements of racial bias and obtained a new statement. In this new statement, the juror did not deny what he said about Black people or Tharpe. Instead, he complained that the lawyers were not clear enough about their purpose in talking with him and that he had been drunk when he talked with the lawyers.

The state attorneys then came to court and argued that the racial bias of the juror should be irrelevant to Tharpe’s death sentence because the law should not permit investigation into racial bias by jurors after the verdict. Unfortunately, this response was hardly surprising. Georgia’s Attorney General’s office had years of practice defending racially tainted capital cases from Mr. Briley’s office.

How do we know that capital prosecutions in Briley’s office were contaminated by racial discrimination? He put it in writing.

In 1978, Briley wrote an “infamous” handwritten memo instructing the clerk’s office on how to reduce the number of Black people and women on juries without detection. In other words, he explained how to discriminate and get away with it. He also repeatedly removed qualified Blacks from jury service in violation of the constitutional prohibition of using race in jury selection. Although it is notoriously difficult to show purposeful discrimination in jury selection because of the wide deference afforded to prosecutors, courts found that Briley’s actions in fact met the high burden of proof required.

During his 20-year tenure between 1974 and 1994, Briley tried 33 capital cases — 24 of which were against Black defendants like Tharpe. In the cases with Black defendants, 90 percent of the jurors Briley removed from serving in these capital cases were Black.

In Tharpe’s case, the state court ruled that the noxious statements by the juror were inadmissible because the law protects jury verdicts as unimpeachable. In other words, even where there is smoking-gun proof that one or more jurors used racially biased decision-making, courts will not reopen jury verdicts. The state court denied the claim on the wrong theory that jurors should not be permitted to testify about how their racial bias affected the verdict.

This question — whether courts should revisit jury verdicts when presented with proof of racial bias by a juror in decision making — was answered with a resounding yes earlier this year in the Supreme Court case, Pena-Rodriquez v. Colorado. In a 5–3 decision, the justices ruled that it “must become the heritage of our Nation to rise above the racial classifications that are so inconsistent with our commitment to the equal dignity of all persons.”

Tharpe’s appeals proceeded through state and federal courts without any court ever considering whether the juror’s profoundly troubling remarks violated the Constitution. Even though Pena-Rodriguez makes clear that Tharpe should receive a hearing, halting his execution and reopening his federal case requires that he show extraordinary circumstances. The Supreme Court ruled in another case this year, Buck v. Davis, that the “noxious strain of racial prejudice” constituted extraordinary circumstances that required the reopening of federal habeas proceedings.

Halting Tharpe’s execution today should be an easy call. Reopening his case and allowing a court to rule on the proof of racial taint by the juror in Tharpe’s case is the only path forward commensurate with recognition of equal dignity of all. Keith Tharpe deserves a new trial before a jury of his peers. Otherwise, we will condone a criminal justice system that allows racial animus to influence matters of life and death.

The views and opinions expressed in this article are mine and do not necessarily reflect the views of the Fair Punishment Project.

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Sessions scales back federal reform as police-community relations continue to crumble

Sessions scales back federal reform as police-community relations continue to crumble

In what can be seen as a natural extension of Jeff Sessions’ already-evident disdain for Obama-era criminal justice policies, the Attorney General announced Friday that the Department of Justice would scale back its Office of Community Oriented Policing Services (COPS). The COPS program was known in part for investigating the work of local police departments and issuing reports on problematic practices or broader misconduct. Sessions’ move reflects the Trump administration’s unequivocally pro-police stance, as well as the Attorney General’s clear contempt for federal oversight of local law enforcement.

“The DOJ is basically saying to police departments, ‘You guys are doing a great job, and you’re on your own now,’” former Boston police officer and criminal law professor Tom Nolan told In Justice Today. “Whatever COPS is going to engage in now is going to be a radical departure from what happened under Obama, or even Bush.”

The DOJ’s announcement was vague, promising “technical assistance and support” from the updated version of the COPS Office without specifying what that might mean in practice. It was clear, however, that the program will no longer investigate local police departments and promote reform as it had increasingly done under Obama, and local police administrators will no longer be able to seek reform-based guidance from the DOJ.

“Changes to this program will fulfill my commitment to respect local control and accountability, while still delivering important tailored resources to local law enforcement to fight violent crime,” said Sessions in a statement.

The COPS program was well-received by some of the local departments it engaged with, while other collaborations were less successful. Advocates hailed the Office’s work as a less-intrusive alternative to court-ordered reforms. Darrell Stephens, executive director of the Major Cities Chiefs Association, an alliance of Chiefs and Sheriffs representing the largest cities in the U.S. and Canada, noted by email to In Justice Today that for the Las Vegas Police Department, the “experience [with COPS] was a good one … It was helpful in making significant changes to their training and investigations of officer involved shootings.” Stephens noted that other departments had a less positive experience, specifically citing San Francisco and Milwaukee.

At Chief of Police Edward Flynn’s request, the Milwaukee Police Department began working with the COPS Office in late 2015 following the fatal shooting of Dontre Hamilton by a police officer. A draft report from the Department of Justice delivered to Flynn in mid-2016 was met with frustration with what Flynn called “factual errors,” and his department had since been collaborating with the DOJ to clarify and finalize the report and recommendations so that it could begin implementing reforms.

Notwithstanding those frustrations, in a letter published following Sessions’ announcement, Flynn lamented the scaling back of the COPS program, noting that it would cut short his efforts to work with the DOJ to improve police-community relations and that his department would never receive a finalized draft. Further, the letter seemed to criticize Sessions’ choice to separate the goals of improving police-community relations and combatting violent crime.

“To separate concerns about violence from concerns about police efforts risks making each discussion disingenuous,” wrote Flynn.

The DOJ’s decision to dramatically scale back the work of the COPS Office comes as fractured police-community relations have once again taken center stage in St. Louis, Missouri. On Sunday night, officers in riot gear chanted, “Whose streets? Our streets!” as they boxed in peaceful protesters and arrested roughly 80 people, some of them violently. The arrests included a St. Louis Dispatch reporter who was pepper sprayed in the face after being pinned to the ground.

“We should be concerned about the message that rank and file police officers are receiving — that the Feds are adopting a hands-off attitude pertaining to local law enforcement practices,” says Nolan. “What we saw in St. Louis was a new low.”

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