Vol. 75, No. 7, July
2002
Remembering Howard Eisenberg
Of Habeas Law and Pink Ballerinas
Howard Eisenberg, dean of Marquette University Law School, and
Wisconsin's Atticus Finch, has been described as brilliant, blunt,
funny, dedicated, a role model, a voice for justice, a practical joker,
or even crusty. A memorial process, begun at his untimely death at age
55 on June 4, reveals Eisenberg's extraordinary nature and impact on
Wisconsin's justice system and the surrounding community.
Sidebars:
by Colleen D. Ball
When I turn on my computer, I catch myself expecting new emails from
Howard Eisenberg with advice on a project I undertook at his
encouragement. Many others must feel the same way, judging from the
countless people he has assisted and from the torrent of commiseration
and tributes occasioned by his death. "I cannot remember anything
similar for a Wisconsin person - not even for a statewide elected
official," said Shirley Abrahamson, Chief Justice of the Wisconsin
Supreme Court. "Why? I think because we instinctively and intuitively
know that he was Wisconsin's Atticus Finch of To Kill A
Mockingbird. That's the lawyer we all went to law school to become.
He did it."
This is no exaggeration. In the weeks since his death, heartfelt
emails have flooded the State Bar of Wisconsin from lawyers around the
state. They describe a man who urged them to go to law school, who
mentored them, who inspired them to reach out to the poor and, more
importantly, showed them how to do it. As colleagues reflect on his
academic and administrative activities, his pro bono cases, his bar
association work, and his many other professional commitments, they
frequently marvel at his devotion to the legal system's lepers as well.
Whether they describe him as brilliant, blunt, funny, dedicated, a role
model, a voice for justice, a practical joker, or even crusty, they are
contributing to a memorial process that has begun to reveal the
extraordinary nature and scale of Howard B. Eisenberg's impact on
Wisconsin's justice system and the surrounding community.
Dream Dean
Eisenberg, a Chicago native, graduated from the U.W. Law School and
clerked for Wisconsin Supreme Court Justice Horace Wilkie. He served as
Wisconsin's chief state public defender and wrote the state's public
defender statute. He also worked as the executive director of the
National Aid and Defender Association in Washington, D.C., and professor
and director of clinical education at Southern Illinois University. In
1991, he became dean and professor of law at the University of Arkansas
at Little Rock.
While being dean no doubt had its stresses, Eisenberg could combine
humor and his expertise in habeas law to relieve them. He wrote
summaries of Eighth Circuit cases for a Little Rock legal publication,
the Daily Record. Sometimes he slipped in phony ones. He
reported the case of Sol Schlamazel, who was convicted of killing his
wife, Selma, on the basis of bone-like fragments found in his
Weber® grill.1 Selma later
appeared and obtained a divorce on the grounds that her husband had
committed a felony (her murder). Schlamazel appealed his conviction but
lost. Although his wife was alive, that fact was dehors the
record. His state habeas petition failed because it had not been filed
within two years of conviction, so he sought relief in federal court. On
appeal to the Eighth Circuit he lost again because, according to Judge
Lauren Order, he could not raise a claim of innocence in a habeas
action. Several lawyers thought the case was real; one sent it to the
ABA Journal. Asked whether he was gaining a reputation as a
legal humorist, Eisenberg said no - he was more likely viewed as someone
"who has lost all sanity after being dean for two years."2
Sane or not, he hoped to return to Wisconsin, his wife's home state
and one he loved. The opportunity arose in 1995 when, in Justice
Abrahamson's opinion, "Marquette found a gem of a dean." Eisenberg, a
self-described "nice Jewish boy,"3 devoted
himself to the Jesuit law school. Shirley Weigand, associate dean and
professor of law, witnessed his long days filled with meetings, briefs,
visitors, and letters. He often told her that at the end of the day, he
felt like he had run a marathon. "Yet he'd be at his desk at 7:30 the
next morning hard at work," she said. "He always put the best interest
of the law school first."
In doing so, he transformed an institution. "By force of his hard
work with the faculty, students, and central administration, his
commitment to pro bono work, and his commitment to bring alienated
alumni back to Marquette University Law School," Justice Abrahamson
said, "he changed an institution and made the institution and himself a
vital part of many individuals and the Milwaukee and state government.
That he accomplished this objective means great praise should be heaped
on Howard Eisenberg and all the people in the law school."
Still, he had time for pranks, and his humor - or insanity - provided
giggles for colleagues and prisoners alike. According to Dean Weigand,
Eisenberg had an eBay fetish. One day he was excited about a carton of
envelopes he had purchased on eBay to use with his prisoner "pen pals,"
and he was eager to show them off. "They were pink with ballerinas on
them - the whole carton. I couldn't stop laughing," Weigand said.
Kamikaze Causes
Though dean duties were his first priority, Eisenberg's long hours
included a staggering amount of pro bono work. He sometimes teased that
he had a "niche practice" in habeas law, but this was really no joke.
"He was the last hope for many inmates who depended on him, not only in
Wisconsin, but also in his native Illinois, in Indiana and across much
of the Midwest," said Joseph Kearney, an associate professor at
Marquette Law School and Eisenberg's friend.4 When asked in January uld continue in the pro bono
appeals program for the State Bar's Appellate Section (which he
chaired), Eisenberg responded, "Of course. I live for pro bono appeals!"
He listed his areas of interest and expertise as "prisoner rights,
mental health, all difficult clients that nobody else wants."
Don Wall, counsel to the circuit executive, reports that Eisenberg
accepted 20 pro bono appointments in the Seventh Circuit for the
35-month period stretching from May 27, 1999 to March 13, 2002.
Eisenberg himself told the Chicago Daily Law Bulletin that he
had accepted a similar number in the Eighth Circuit Court of
Appeals.5 Cornelia Clark, clerk for the
Wisconsin Supreme Court and Court of Appeals, estimates that Eisenberg
has worked on 51 cases in the appellate courts since he returned to
Wisconsin in 1995. And Marla J. Stephens, director of the State Public
Defender's Appellate Division, said that Eisenberg took public defender
appellate appointments at a rate of one per month since 1995, and he
never submitted a bill for his time.
Though he handled a huge quantity of pro bono appeals, the quality of
his work did not suffer. He won the Seventh Circuit's Walter J. Cummings
Award for excellence in advocacy on the part of appointed counsel twice
- in 1992 and 2001. "We asked him to take particularly prickly cases,
and he always did an outstanding job," said Judge Terence T. Evans of
the Seventh Circuit Court of Appeals. "His arguments were superb - among
the very best of attorneys who appear before the court."
Janine Geske, friend, professor, and former Wisconsin Supreme Court
justice, said that many people urged Eisenberg to slow down and take
fewer pro bono cases and community service projects. But he just nodded
and said that much work needed to be done. "In speeches to law students,
Howard always told them to `do well and do good,'" she said. "I believe
that Howard was driven by a spiritual force greater than any of us, who
told him to do lots of good on this earth."6
Nathan Eisenberg, a lawyer at Previant, Goldberg, Uelman, Gratz,
Miller & Brueggeman in Milwaukee, said that his father had "an
amazing capacity for warmth and compassion and a desire to pursue
difficult causes. He didn't believe in avoiding a task because it was
too hard or too time-consuming or too controversial. In fact, he taught
us that it was those very causes that most needed the attention of
caring individuals."7
Indeed, Eisenberg's energy and dedication to what some called
"kamikaze causes" are legendary. In a motion for an extension of time in
which to file post-conviction motions, Eisenberg described his work
schedule during December 2000. He filed post-conviction motions in a
homicide case, made a week-long fundraising trip to London, graded 115
final examinations, attended a day-long meeting of the Board of Bar
Examiners (which he chaired), argued a pro bono appointment to the
Eighth Circuit Court of Appeals, attended mid-year graduation for
Marquette University and presided over the law school graduation, made a
half-dozen fundraising visits to Marquette alumni, attended numerous
committee meetings, wrote three appellate briefs - for the Seventh
Circuit, Eighth Circuit, and Wisconsin Court of Appeals - and responded
to a dozen letters from prisoners seeking pro bono representation. His
motion states that: "Counsel has been in the office no less than 10
hours every day since December 17th, including Christmas and New Years
Day, except for December 24, on which he worked six hours." It also
indicates that he expected to file two more briefs in criminal appeals
during the first week of January 2001.8
Prisoner Pen Pals
Eisenberg's correspondence with prisoners is particularly impressive.
"He answered every single letter he received from a prisoner," said
Nancy Rogers, his administrative assistant.9There is a virtual archive of hundreds of
prisoner correspondence files in a large metal, four-drawer cabinet at
Marquette University Law School to corroborate her statement. Though
Eisenberg received many letters from prisoners seeking pro bono
representation each week, his replies were not cursory. He responded
fully and directly, sometimes sending legal advice, an opinion, or a
copy of one of his briefs from another case. "He offered hope to the
hopeless," Ms. Rogers said.10 But he was
also quite frank about their predicaments:
He told one prisoner, who was pleased to have a law dean as his
attorney:
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Photo: G. Steve Jordan
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"[Y]ou should understand that I do not work miracles. The large
majority of criminal defendants lose on appeal, and that includes my
clients. So having me as your lawyer is no 'magic bullet.' It is always
a significant uphill battle."11
He bluntly informed another prisoner that it was time to let go of
the past:
"You have spent your life trying to understand things. With great
respect, it hasn't really gotten you very far. ... You are in the
harshest prison in the state, and that sucks. You know that and I know
that. It's easy for me to say move on, but in reality you are in for a
life of misery if you dwell on things you can't understand. You can't
undo your crimes nor change how many people in free society think about
convicted felons. ...
"I am a lawyer, not a philosopher or a priest, but I have spent my
adult life representing convicted felons from serial killers, to spies,
to prostitutes. Those who spent their time in prison looking backwards
were miserable and usually ended up dead or back in prison shortly after
they were released. Those who looked forward did better while confined
and had a better life on the street when released."12
And in rejecting a prisoner's plea for him to attack the conditions
of confinement at an entire Oklahoma institution, Eisenberg confessed
limits to what he could do:
"I am Dean of the Law School. I don't have a staff or even students
who can do this work. Essentially, I am only one person. I do all of my
own typing (including this letter), all of my own research, and all of
my own work. I am not in a position to undertake litigation 1,000 miles
from home, without anyone paying the costs, and frankly, with not a very
good chance of winning. ... In short, there isn't very much I can do for
you. ... I am very sorry."13
The Eisenberg Example
In his speech "What's a Nice Jewish Boy Like Me Doing in a Place Like
This?" Eisenberg urged others to bring God into their daily lives. "Do
we go out of our way to do pro bono work, to help the needy, to listen
to those who have problems? Living a spiritual life must become
`business as usual' for each of us, Jew or Gentile, Christian or
Moslem."14
It certainly was "business as usual" for Eisenberg. Marquette
University sits in downtown Milwaukee. "Many of our homeless neighbors
don't have a clue how to access legal help, but they see `law' on the
front of this building and they think there may be somebody inside who
can help," he told Marquette Magazine.15 "When I think I can help them, I do. That's what
we're about. It would no more occur to me to tell that person to get out
of the Law School or call Campus Security than it would to kick a
student out of my office."16
Eisenberg also liked to take students to prison for client
interviews. "Part of the reason I do this kind of work with students is
because they come to law school with a lot of prejudices about people
caught up in the criminal justice system," he said. "When I take
students to see serious felons, they admit they are surprised these
people are human."17 He hoped the
experience would provide students with early lessons on their pro bono
obligations.
"In speaking to law school graduates on their admission to the bar at
the court and to the entering class at Marquette's freshman orientation
I have used Howard as their role model," Justice Abrahamson said. "He
represented the client well, continually educated himself, worked hard,
showed a sense of humor, committed himself to the poor and
underprivileged, and tithed to the community."
Pat Ballman, the State Bar's new president, sat next to Eisenberg at
a breakfast meeting on May 23. Though he felt sick, he minimized his
condition. That afternoon he was admitted to the hospital for a heart
attack. He passed away on June 4, 2002. "Eisenberg died very young, just
55," Ballman said. "But he lived more and accomplished more good than
most people could in 10 lifetimes. It will take a team of people to
carry on all the good work he was doing."
Eisenberg is truly irreplaceable to his family, friends, colleagues,
students, and the Wisconsin legal community. His death is also a
potential calamity to countless indigent people who will need legal
representation or just a sympathetic ear. But this need not occur. Nancy
Rogers, Eisenberg's assistant, knows exactly what Wisconsin lawyers must
do:
"For those of you from the legal community who said you wish there
was something you could do - there is. Carry on Howard's pro bono work.
There is an immediate need for attention to several cases and a
four-drawer file cabinet of [letters from] people who would like to know
that they will not be forgotten."18
Endnotes
1 Dogs and
Snipes, 79 A.B.A. J. 52 (Oct. 1993)
2 Id.
3 Howard B.
Eisenberg, What's a Nice
Jewish Boy Like Me Doing in a Place Like This? .
4 Joseph D.
Kearney, Eisenberg: A Hero Devoted to Justice, Milwaukee J.
Sent., 19A (June 6, 2002).
5 Jerry Crimmins,
Once a Burden, Appointment Now a Much Sought Plum, 148 Chicago
Daily L. Bull. 1 (Feb. 28, 2002).
6 Janine Geske's
eulogy, June 6, 2002.
7 Nathan
Eisenberg's eulogy, June 6, 2002.
8 Motion for
Second Extension of Time in Which to File Post-Conviction Motions in
State v. Kupaza, Case No. 00-CF-26, (Wis. Ct. App. Jan. 1,
2001).
9 Nancy Rogers'
eulogy, June 6, 2002.
10 Id.
11 Howard B.
Eisenberg prisoner correspondence file.
12 Prisoner
correspondence cited in Janine Geske's eulogy, June 6, 2002.
13 Howard B.
Eisenberg prisoner correspondence file.
14 Eisenberg,
supra note 3.
15 Joni Moths
Mueller, Justice for All, 18 Marq. Mag. 16 (Summer 2000).
16 Id.
17 Id.
at 14.
18 Nancy Rogers'
eulogy, June 6, 2002.