Vol. 75, No. 7, July 2002

Remembering Howard Eisenberg
Of Habeas Law and Pink Ballerinas

Sidebars:

• Sharing Personal Reflections

Photo: Andy Manis

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:

Photo: G. Steve Jordan

"[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.