Commentary: Late atty. had huge impact on WI law.

Byline: David Ziemer

As the State Public Defender for many years in the 1970s, and the author of law review articles and treatises, the late Howard B. Eisenberg left an enormous impact on the development of Wisconsin's criminal case law.

Despite full-time employment as dean of Marquette University Law School since 1995, and service in countless community activities, Eisenberg served pro bono at the center of many of the most important issues in Wisconsin courts. He made contributions to the case law in just the past seven years that would make any attorney proud, even if he had practiced a lifetime, didn't have a separate full-time job at the time, and had been paid for the work.

According to former Justice Janine P. Geske, he had 50 cases pending at the time of his death, notwithstanding his other obligations.

Chief Justice Shirley S. Abrahamson, who was friends with Eisenberg for more than 30 years, called Eisenberg's untimely death a tremendous loss that could require 10 to 20 lawyers to replace. Abrahamson described his work before the Supreme Court as always well-prepared, and always knowing what to stress, and what was only peripheral to the case.

Perhaps Eisenberg's largest stamp on Wisconsin's recent case law, in any one case, stems from his participation in In the Matter of Edna M.F., 210 Wis.2d 557, 563 N.W.2d 485 (1997). In that case, both the guardian and guardian ad litem for Edna M.F., an incompetent, supported the withdrawal of her life-sustaining treatment.

The Supreme Court appointed Eisenberg to argue in favor of preserving her life, which the court ultimately did, holding that support can only be withdrawn if the ward is in a persistent vegetative state and withdrawal is in the best interest of the ward.

In 2002 already, Eisenberg argued two cases that resulted in published opinions: Treat v. Puckett, 2002 WI App 58, 643 N.W.2d 515, which considered whether the Department of Corrections could delegate inmates' security classifications to a private prison; and State v. Meeks, 2002 WI App 65, 251 Wis.2d 361, 643 N.W.2d 526, which considered, among other issues, whether the attorney-client privilege prevents a defendant's prior attorney from testifying as to his perceptions or opinions of the defendant's competence to stand trial.

In April, the Wisconsin Supreme Court granted certiorari in the Meeks case (the court of appeals held that the prior attorney could testify). The court also appointed Eisenberg to handle another case currently pending before the court, State v. Lo, No. 01-1843, which will determine what analysis courts should employ in determining whether a defendant filing a successive appeal has established sufficient reason for not raising an issue in an earlier appeal.

In recent years, Eisenberg also filed amicus curiae briefs in two cases on behalf of the Wisconsin Association of Criminal Defense Lawyers on an...