The author of the biography Alexander Hamilton also wants lawyers to remember 1870.
That is the year that the U.S. Department of Justice was formally created1 and, according to Ron Chernow (in his latest bestseller Grant), that is when federal attorneys started to become a consolidated and professional group dedicated to defending civil rights.2
Before 1870, the federal government operated with an attorney general, who advised the President on legal affairs, but the attorney general worked out of an office in the Treasury building, with no real staff.3 United States Attorneys (then more commonly called U.S. District Attorneys) were located around the country, but they also lacked significant resources and had no formal chain of command.4
In Wisconsin, another historian called the federal legal presence at the time “skeletal,” and the U.S. Attorney, marshals, and federal judges in Wisconsin had no facilities of their own. They were forced to rely on state and county resources.5
U.S. Attorney versus Abolitionists
Runaway Slave Case. The quality of the federal attorneys was suspect as well, and nowhere was that fact more on display than in Wisconsin during the nationally famous case involving runaway slave Joshua Glover.
Steven M. Biskupic, Marquette 1987, is a partner at Biskupic & Jacobs, Mequon. He served from 1989 to 2009 in the U.S. Department of Justice, the last seven years as U.S. Attorney for the Eastern District of Wisconsin. The author acknowledges the assistance of Barbara Fritschel and Lucien Jung of the U.S. Courts Library, Eastern District of Wisconsin.
Glover had escaped from Missouri in the early 1850s and made his way to the Racine area, where he lived for several years. In 1854, Glover was discovered by deputy U.S. marshals and arrested under the Fugitive Slave Act, which had gone into effect in 1850. The controversial law provided that the captured slave was to be returned simply on the sworn statement of the slave owner. The captured slave was not entitled to present evidence on his or her own behalf. In addition, anyone aiding a slave or interfering with the capture of a slave faced federal prosecution and punishment of up to six months in jail.6
Against this backdrop, Glover was transported to the Milwaukee County jail to await return to Missouri.7
But when a group of Wisconsin abolitionists learned of the arrest, they stormed the jail and freed Glover, who eventually made his way to Canada. The actions caused a national uproar but also sparked federal prosecutions in Milwaukee of the abolitionists and constitutional challenges to the Fugitive Slave Act in both state and federal courts.8
Wisconsin’s U.S. Attorney at the time of the case was John R. Sharpstein, and his performance was infamous.
To convict the abolitionists, Sharpstein relied more on character assassination than evidence. In one trial, Sharpstein called the defendant a coward and likened him to Benedict Arnold. Sharpstein suggested that his opposing counsel was a drunk, even though the lawyer was an avowed teetotaler.9
In a closing argument, Sharpstein declared: “The whole matter of abolition is intended only to enable men to violate and trample on the law. I despise the whole lot of it.” He also suggested that abolitionists were hypocrites, because they could not truly believe that African Americans were equals.10
For good measure, he also used the argument to attack women’s rights.11
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It was still enough for a federal jury to convict the abolitionists of aiding an escaped slave, but Sharpstein soon faced a tougher task before the Wisconsin Supreme Court, which separately considered whether the Fugitive Slave Act violated the Due Process Clause of the Fifth Amendment (since it provided for the summary arrest and return of escaped slaves without any evidence being presented on behalf of the slave).12
This argument had been put forth by a bright young abolitionist attorney named Byron Paine. Sharpstein was reportedly caught “unprepared” for the constitutional challenge and was easily “outmaneuvered.”13
When the Wisconsin Supreme Court ruled against the federal government and struck down the Fugitive Slave Act as unconstitutional, a shaken Sharpstein immediately wrote to the U.S. Attorney General, asking for and receiving permission for a noted private attorney, Edward Ryan, to be appointed lead counsel on the cases going forward.14 From that point on, in the most significant federal case in Wisconsin’s young history, the U.S. Attorney preferred to stay in the background.
Ryan’s courtroom performance was markedly better than Sharpstein’s, both in demeanor and in substance, though he shared Sharpstein’s contempt for abolitionism, women’s rights, and other reform movements.15
The legal cases against the abolitionists were resolved in 1858 by the U.S. Supreme Court in Abelman v. Booth.16 The Court held that Glover had been lawfully arrested and abolitionists properly charged and that the state of Wisconsin had no authority to invalidate a federal law.17 Still, the controversial case was debated nationally for several years until the start of the Civil War.18
Lawyers’ Work After Fugitive Slave Act. Attorney Ryan later would be elected to the Wisconsin Supreme Court, as would the abolitionist attorney, Byron Paine.19
Sharpstein left office as U.S. Attorney in 1857.20 He served as postmaster in Milwaukee (then an important patronage position) before returning to private practice, where controversy followed.21
In one case, Sharpstein was accused of taking a retainer but doing no work, resulting in a default judgment against his client. In another, Sharpstein was hired by a client to collect a debt but was accused of pocketing the proceeds for himself.22
Sharpstein left Wisconsin for California in 1864, purportedly because of ill health. In California, he enjoyed a renaissance to his legal career and was elected to the state supreme court.23
In Wisconsin, Sharpstein’s immediate successors as U.S. Attorneys did not necessarily fare better.
The most controversial was Levi Hubbell, U.S. Attorney from 1871 to 1875. Hubbell had previously served for eight years as a state supreme court justice but was forced to resign from the high court after being accused of taking money (Hubbell called them loans) from litigants appearing before him.24
The politically connected Hubbell nevertheless secured the U.S. Attorney appointment, but the end of his tenure again was marked by controversy.25
Hubbell was accused of dragging his feet on corruption cases, including high-profile charges against whiskey distributors in Milwaukee who had been bribing government revenue agents. After resigning, Hubbell immediately switched to the defense table and defended some of the very same distributors.26
New Identity for U.S. Attorneys
According to author Chernow, the performance of U.S. Attorneys nationwide on civil rights began to dramatically change in 1870 with the formal creation of the Department of Justice and then the ouster of attorneys such as Hubbell.
Under the direction of President Ulysses Grant and U.S. Attorney General Amos T. Ackerman, “the new Justice Department,” in the words of Chernow, “would forge its identity in the battle to slay the Ku Klux Klan.”27
By 1870, the Klan had been waging a murderous (and successful) reign of terror to prevent freed slaves from exercising their rights, particularly to vote. As one Southern governor noted, African Americans “have been dragged from their homes at the dead hour of night and most cruelly and brutally scourged for the sole reason that they dared to exercise their own opinion on political subjects.”28
By 1870, the Klan had been waging a murderous (and successful) reign of terror to prevent freed slaves from exercising their rights, particularly to vote.
Ackerman responded by empowering federal prosecutors to bring more than 3,000 indictments against Klan members. Ackerman’s successor as Attorney General, George H. Williams, went even further, and his U.S. Attorneys tripled the number of cases brought against Klan members.29
Chernow notes that the conviction rate against the Klan initially was below 50 percent, but he blames pushback from then-sitting federal judges, as well as the irony that in creating the Department of Justice, Congress initially decreased the total number of federal attorneys.30
But, Chernow says, “[t]the goal was not mass incarceration, but restoring law and order.”31 Chernow credits Grant and his attorneys general with achieving that goal, at least for a time.
After that point, the advance of federal prosecutions to protect civil rights was by no means a straight line. (As Chernow notes bitterly, “The retreat from Klan prosecutions would come later.”32) The dedication of federal authorities to protecting civil rights would ebb and flow for the next 100 years.
But protection of civil rights eventually became standard fare for federal prosecutors in Wisconsin and around the country.
From Sharpstein to Mulligan
The death of Milwaukee attorney William J. “Bill” Mulligan earlier this year serves as a reminder of the modern dedication of federal attorneys to protecting civil rights.33
Besides a long career in private practice at Davis & Kuelthau, Mulligan served as United States Attorney in Milwaukee from 1974 to 1978. His demeanor and dedication to civil rights were the opposite of Sharpstein’s.
In court, Mulligan made his points effectively without raising his voice or attacking the character of his opponents.
During his tenure as the top federal prosecutor in the Eastern District of Wisconsin, Mulligan successfully sued the city of Milwaukee for “a pattern and practice” of unlawful race and sex discrimination in hiring police officers and firefighters.
During his tenure as the top federal prosecutor in the Eastern District of Wisconsin, Mulligan successfully sued the city of Milwaukee for “a pattern and practice” of unlawful race and sex discrimination in hiring police officers and firefighters.34 Mulligan also brought suit to ensure fair housing for African Americans.35
And, 120 years after Sharpstein railed against abolition in a Milwaukee courtroom, Mulligan hired Charles N. Clevert Jr., the first African American federal prosecutor in Wisconsin history.36
All of which may not justify a full-blown musical, but still merits a happy tune.
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Which of your law professors had the greatest influence on your subsequent career?
As with many Marquette Law School graduates who subsequently practiced criminal law, I believe Professors Daniel Blinka and Thomas Hammer had the greatest influence on my career. Both taught courses related to criminal law and procedure, as well as trial practice. The two are former Milwaukee County Assistant District Attorneys with a wealth of practical experience, but also had spent considerable time studying and writing about the theories and practices underpinning criminal law, such as the evolution of the rules of evidence.
The distinct lessons that I recall taking from the two include: no trial is ever going to be perfect; that all the nonlawyer participants in the trial (defendants, victims, witnesses, jurors) deserve your respect; and (perhaps most importantly) regardless of how strong the evidence favoring one side or the other appears to be on paper, you never know for sure how a trial is going to turn out. I feel indebted to both of them for these lessons and many others.
Steven M. Biskupic, Biskupic & Jacobs, Mequon.
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1 U.S. Department of Justice, About DOJ, www.justice.gov/about (all sites listed herein last visited July 5, 2018).
2 Ron Chernow, Grant 700-01 (New York, NY: Penguin Press, 2017). Chernow’s Alexander Hamilton was the inspiration for the musical Hamilton.
3 Id. at 700.
4 H. Robert Baker, The Rescue of Joshua Glover: A Fugitive Slave, the Constitution and the Coming Civil War 30 (Athens, OH: Ohio University Press, 2006).
5 Id. at 11, 30-31.
6 Id. at 1-3, 26-57.
8 Id. at 22-23, 85 et seq.
9 Id. at 91.
12 Id. at 114.
13 Id. at 94.
15 Id. at 94-95, 115.
16 Abelman v. Booth, 62 U.S. 506 (1858).
17 Baker, supra note 4, at 22, 78.
18 Id. at 162 et seq.
19 Id. at 94-95, 105.
20 History of the Federal Courthouse in Milwaukee and the Federal Court in the Eastern District of Wisconsin, at V-3 (on file in the U.S. Courts Library, Eastern District of Wisconsin).
21 John R. Berryman, History of The Bench and Bar of Wisconsin 427-28 (Chicago, IL: H.C. Cooper Jr. & Co. 1898).
22 See Huebschman v. Baker, 7 Wis. 542 (1859); Cotton v. Sharpstein, 14 Wis. 226 (1861).
23 Berryman, supra note 21, at 428.
24 Id. at 96-98; see also Impeachment of Judge Hubbell of Wisconsin, Monthly Law Reports (March 1854).
25 Parker McComb Reed, The Bench and Bar of Wisconsin 509-10 (Milwaukee, WI: P.M. Reed 1882).
27 Chernow, supra note 2, at 701.
28 Id. at 702.
29 Id. at 708-11.
30 Id. at 708.
32 Id. at 711.
33 Mulligan died May 1, 2018. See Bill Mulligan Dies, http://nafusa.org/ (May 7, 2018 entry).
34 See United States v. City of Milwaukee, 395 F. Supp. 725 (E.D. Wis. 1975); United States v. City of Milwaukee, Nos. 74-C-480, 74-C-333, 1975 WL 11839 (E.D. Wis. July 25, 1975).
35 See United States v. Westbanick Corp., 63 F.R.D. 366 (E.D. Wis. 1974).
36 Comments of Charles N. Clevert Jr. at Eastern District of Wisconsin Federal Courthouse Memorial for William J. Mulligan, May 18, 2018. Clevert was hired by Mulligan in 1975.