The Feds and J.J. Ewers
They threw the book at the one-time high-rolling Madison defense lawyer for doing cocaine is his law office. Was he a reckless attorney who thought he was above the law? Or the casualty of a drug war that’s starting to get personal?

By Chuck Nowlen
Published December, 1994, Madison Magazine
Copyright 1994, Madison Magazine

He was a portly small-town Falstaff in the criminal courts of Dane County – part teddy bear, part assassin, with a well-known taste for the party life. His tactical, aw-shucks cunning could lead juries to the palm of his hand.

As a defense lawyer, James Ewers could be brilliant: an orator, a strategist and a ball-buster for cops and prosecutors. Other times, though, he was clumsy as a plow boy; awkward, unfocused, especially after his marriage broke up. These were the times people thought he might have a problem with cocaine.

Which, in fact, he did for a while.

“It was common knowledge for years about him being involved with drugs,” says one prominent local defense attorney who requested anonymity because he is not closely familiar with many of the details of the Ewers case. “We used to say that he’s probably a government informant because they never seemed to pinch him.”

But James Ewers, or “J.J,” as he was known to his closest colleagues, was no friend of the government. He took the tough cases, the accused murderers and big-time drug dealers, and sometimes he thumbed his nose at his adversaries, particularly police investigators, whose work he scrutinized like a hawk.

His first employer also was the flamboyant Donald Eisenberg, who stared down the feds in court in the mid-1980s, beating criminal tax charges that the US Attorney’s Office desperately wanted to make stick. Charles Geisen, another former Eisenberg partner who is still practicing law in Madison, also beat a high-profile tax rap.

Eisenberg was eventually bounced out of the profession on another matter. But some say those two cases – which cost the IRS thousands of hours and more than a little embarrassment – galled the government to the point where it tailed Ewers and other former Eisenberg associates for nearly a decade, hoping against hope that someday they’d make a mistake.

And Jim Ewers was not the kind of guy who could stand much IRS heat. His friends describe him as all-thumbs with his finances and personal life, and as a robust partier whose idea of record-keeping was tossing his receipts and client lists into boxes for his accountant to straighten out.

Ewers also defended a lot of bad people over the years, like the perjurious local drug kingpins who ultimately blew the whistle on him – in exchange, of course, for lighter sentences of their own.

“George Paul (the IRS agent who took the lead in the Ewers case after also being part of the two previous Eisenberg prosecutions) is a very vindictive person,” says former Madison attorney Sarah Crandall, who defended both Eisenberg and, later, Ewers in the early part of his case. “Somehow, the IRS got the idea in their head that the Eisenberg firm was a bunch of drug dealers, which they are not. And they decided to go after them to the ends of the earth.”

Crandall adds: “There’s apparently not enough crime in the Western District of Wisconsin to satisfy some federal authorities. They want to justify their own existence by going after users like Jim Ewers instead of the people who are actually dealers.”

Ewers’s defenders also note pointedly that his indictment on drug and tax charges came five years after the last documented time he even used cocaine. By then, he had cleaned up his act, in terms of both his drug use and his financial habits. But it was too late to stop the government prosecution machine from rolling.

Whatever the case – and there are plenty of people who doubt the vendetta scenario – Ewers took the hard fall October 7 of this year. After a plea bargain, he was sentenced to five years in prison for keeping his Wilson Street  law office as a drug house and failing to file income taxes on time. At his sentencing, US Judge Barbara Crabb added about three years more time than even the government had requested, an unprecedented “upward departure” in the Western District of Wisconsin, and one that forms the basis for much of his appeal.

At the same time, Crabb acknowledged the tragedy of her decision. The 52-year-old Ewers, after all, had argued before her many times. “This is obviously a very sad day for the legal community, for all your friends,” she said before Ewers was led away. “It’s very difficult to sentence a person of your achievement and a person I’ve known for 20 years.”

The result? Ewers will now do prison time for a habit he has long since kicked, and which he insists didn’t come close to the scope alleged by his accusers. He will also likely never again be allowed to do the one thing in his life he could do really well – practice law.

“You have to understand Jim Ewers. He’s very good at what he does and not very good at anything else – in many ways, he’s inept in society,” says Crandall, who now does legal research in Maine. “In so many ways, there was a genuine naïveté there. … He was never anything but a user, and even then for only one or two years in his life. So I don’t feel society is being protected from a dangerous person here. Meanwhile, how many cases are being untended while they go after people like Jim Ewers?”

These days, of course, it’s hard to find much of sympathy for anyone in the legal profession, but Ewers’s attorney, Tom Halloran, is one of many who think that a grave injustice has been done. Crabb’s upward departure was based mainly on the alleged quantity of cocaine involved – again, as outlined by notorious drug dealers, one of whom, Rodney Rhodes, had been convicted of 16 felonies and had committed perjury twice.

Plus, much of the drug dealers’ testimony pertained to one charge against Ewers that was ultimately dropped by prosecutors – that he had not only used cocaine in his office, but had also been part of a drug-dealing conspiracy. Even on that count, while Rhodes alleged that seven to 10 kilograms of cocaine had been exchanged in Ewers’s office during a seven-month period in 1989, Crabb in her decision cited 3.5 grams, a number that Halloran says “came out of the blue.”

“It’s like she believed Rodney Rhodes 50 percent,” Halloran says. “With all due respect – and I want to be clear that I respect Judge Crabb very much – I don’t think she had the legal authority to do what she did. … But like I’ve said before, that’s why God made courts of appeal and Irish whiskey. And, on this one, I intend to make good use of both.”

Other lawyers, meanwhile, doubt that Ewers’s fate had anything to do with his association with the Eisenberg firm. And they call government scrutiny part of the territory for criminal defense lawyers, who, after all, are held to higher ethical standards by judges and the State Bar.

“I don’t believe that they were out to get him personally,” says Jack McManus, the elder statesman of Madison’s criminal defense bar, noting that Ewers had left the Eisenberg firm long before its principal partner was indicted. “I mean, hell, if they think they’ve got some bad apples in a firm, you’ve got to expect that they’ll take a look at everybody. … I mean, here’s a guy up there defending drug dealers; he’s got to be clean as a hound’s tooth. … So I’m not saying the government goes out of its way to get you, but if you come into their sights, they pull the trigger. That’s just the nature of the game.”

Adds Jack Priester, another former Eisenberg associate who at one time fought off some government scrutiny himself: “I don’t buy (the Eisenberg/Ewers connection), and there are a couple of reasons why. First, you’ve got a different US Attorney. (John Byrnes handled Eisenberg and Geisen; Ewers was Peggy Lautenschlager’s responsibility.) Plus, if any of the allegations went back to the years when we were together, that would be one thing. But I don’t think that’s the case here.”

Still, Priester doesn’t discount the possibility that Ewers might have been targeted by someone other than the government. “I’m not saying who or why,” he says. “But, my God, the people they brought out against him were not exactly the type of people you’d like to invite for dinner. They brought every creep out of the woodwork.”

Halloran’s theory: “J.J. was always a very aggressive advocate for his clients. He had respect among judges and even among prosecutors. But I do think he was held in a different regard among law enforcement officers. Let’s just say he would make them work harder. He certainly availed himself of every legal obstacle he could to make them do their jobs correctly. That was his job.”

Judge Crabb declined to be interviewed for this story, and police records are unavailable while sentencing details are still pending. But US Attorney Lautenschlager scoffs at the notion that Ewers was either targeted for investigation or singled out for harsh treatment once he was caught.

“I think it’s fair to say that given the evidence shown in court, there is no question Mr. Ewers had involvement in keeping a drug house,” she says. “If  there had been some question, given Mr. Ewers’s knowledge of criminal law, you’d think he would have possibly considered a trial.”

“I get very little feeling of accomplishment or satisfaction when we prosecute cases with a certain amount of tragedy in them, and, if anything, we’re accused of targeting people in lower-income categories, which is certainly not what we have here,” she adds. “And, as far as there not being enough crime in the Western District of Wisconsin to justify our existence, I’ll tell you one thing: The week before last, I worked 63 hours. Last week I worked 52. And this week, I’ll work about 75.”

“So, no, I’m not looking for business,” Lautenschlager laughs. “We’ve been, I think, fair both in establishing (prosecution) guidelines and ensuring consistency in the way they’re carried out.”

Ewers also gets no sympathy from some of the clients who suffered during his drug-tainted low points as an advocate. Says one, proclaiming innocence from prison after paying $15,000 for Ewers’ services: “At my trial, it’s best characterized that he did as little as he dared. The judge even commented at one point that I was taking more notes than Mr. Ewers was.”

The former client, who requested anonymity for fear of harming her own chances of an early release, adds: “I have a friend who says, ‘What goes around comes around;’ and there are times when I’ve actually wished him dead. But this is so much nicer. As another of my friends tells me, ‘Vengeance is mine, sayeth the Lord.’ In this case, it couldn’t happen to a nicer guy.”

*

In fact, things could have been much worse for J.J. Ewers. His eight-count indictment, handed down on April 29, charged that between April and November, 1989, he conspired to distribute cocaine, possessed cocaine with intent to distribute and maintained his office as a drug house. It also said he failed to declare drug profits on his 1989 tax returns and that he failed to file timely returns in 1987, ’88 and ’89. If convicted on all counts, he would have faced 86 years in prison and more than $3.5 million in fines.

And yet, the US Attorney’s Office knew it had a problem. Its star witnesses, Rodney Rhodes and cohort Ira Williams, had obvious credibility problems. A third drug dealer, Virgil Vollmer, was a paraplegic who had had a few strokes by the time the indictment came down. He was therefore not the most potentially eloquent testifier in court.

This meant that if the drug-dealing conspiracy charges crumbled during a jury trial because of these unreliable witnesses, the rest of the case could easily follow suit.

Still, the government, whose case was put together by Assistant US Attorney Mitch Ballweg and IRS Agent George Paul, had a couple of trump cards. Since Vollmer was a paraplegic, he had friends who drove him to Ewers’s office where the drug exchanges occurred, and who admitted using some of the drugs themselves. (Ewers never denied using cocaine there, but he insisted that it was small quantities for personal use.) The government, then, also had potential corroborating witnesses, which made all the difference in the world.

“One of the things that’s most difficult in drug cases is where you don’t have a (fully documented) hand-to-hand delivery,” Lautenschlager notes. “In this case, we had both the persons who allegedly obtained the cocaine, but also the persons who obtained it from those guys. In other words, we had corroboration.”

Ewers had also made the mistake of mixing his personal and professional lives, and there are indications he traded legal services for cocaine. As one attorney interviewed for this story puts it, “That was incredibly stupid. If there’s one thing you don’t do as a lawyer, you don’t get personally involved with your clients – especially when it involves drugs.”

The upshot: The government stuck with the two charges where it had the best evidence – the drug house count, which did not depend on whether cash exchanges occurred, and the late-filing tax count. On the latter, Ewers was a dead duck, although, on its own, it wouldn’t have amounted to much. He had submitted a filing extension for 1989, bringing his deadline to October of 1990. He didn’t get his returns to the IRS until January 1991.

Still, Halloran was tempted to try the case. He had evidence that the government had tailed Ewers like bloodhounds for years, contacting a passel of former clients, only to come up with a mere three bad apples who were willing to sing. (Remember Ewers’s habit of including client lists with his mish-mash of financial records? Lawyers here wince when they hear about it: If Ewers hadn’t been so haphazard with his finances and client records, the IRS and drug investigators might never have had such a large a pool of potential witnesses against him.)

But Halloran also had a legal conundrum of his own. After his motion to litigate the drug-related charges separately was denied, he was left with a troubling Catch-22. On the drug-use charges, Ewers would have to be candid on the stand – he did, after all, admit to having a cocaine problem for a brief time. But that would only lend credibility to Rodney Rhodes and company in court.

“Jim was concerned that if he doesn’t get to testify, then he doesn’t get to deny what Rhodes and Williams were claiming,” Halloran explains. “On the other hand, if he testifies, then on cross-examination about drug use in his office, he’d have to be upfront about it. We were very concerned about that.”

Ewers, then, decided to take the government’s deal. And when the US Attorney’s Office didn’t seek an upward departure at his sentencing hearing, Halloran was confident that his client would get 18 months to two years at most.

He was dead wrong: 24 hours before sentencing, Halloran got a call from Crabb’s office notifying him that the judge was looking at bumping up the sentence based on the amount of cocaine involved.

That irked Halloran no end. After all, the quantity testimony was part of a count that had been thrown out. And if the government itself was uneasy about the credibility of its witnesses, why should a judge accept them nearly chapter and verse?

“She (Crabb) apparently felt that the government underestimated Rodney Rhodes’s ability to withstand cross examination,” Halloran says now in retrospect. “I also think she may have underestimated my ability to get at him.”

“I certainly had substantial ammunition,” Halloran adds. “He had 16 felony convictions and admitted perjury at least two times in court, and my guess is that a jury of 12 people from the Madison area would have had some doubts. … And because the upward departure was based on Rhodes’s bravado, I certainly wish now that we would have at least had an opportunity to go after him.”

Another lawyer close to the case, however, has another theory about Crabb’s initiative: “There was a rumor all over town that James Ewers could do more cocaine in a week than anybody, and there was other significant evidence that he was obtaining cocaine in lieu of retainer fees. I would say that these things were rumored enough that, personally, I believed them myself. Maybe that was the case with Judge Crabb as well.”

*

Sooner or later when you talk to Madison defense attorneys about the Ewers case, you get down to opinions on the government’s war on drugs. And, here, it’s a bit of a split, with many holding Ewers up as an example of a politically attractive, but ultimately unproductive, prosecutorial zeal.

Stephen Hurley, perhaps Madison’s most talented defense attorney, says the case illustrates a failure to get at the real adversary in the drug war; namely, human nature.

“It’s really a sad story. I mean, they got him on something that would be no big deal if he wasn’t who he was,” Hurley says. “It’s sad, so sad in the end, getting someone for an addiction. … Most statistics show that as with all crime, drug use is a crime of age and experience: You reach a certain point, and you realize that you can’t function unless you stop. So it’s not a question of deterrence. … People don’t really think before they do drugs any more than they do when they come home every night and have a cocktail.”

Noting that Ewers will probably never be allowed to practice law again, Hurley adds, “Make no mistake about it, a few years in the penitentiary with no parole is no slap on the wrist. Now, a school bus driver in many ways has a far greater public trust, but if that bus driver overcomes an addiction to drugs, he or she will be back driving that bus after a while. That’s not the case with lawyers. In the same circumstances, they’ll do their time and get out, but then all they’re able to do is drive a truck or something somewhere.”

Jack McManus, meanwhile, agrees that the drug war seems to be a losing proposition, and he favors legalization to get rid of the profit motive that seems to defy government crackdowns. Until that happens, though, McManus stops far short of favoring legal breaks for people who get caught.

Particularly lawyers, McManus says, who are, after all, trained to know the battlefield well.

“With a lot of younger defense lawyers, drug prosecutors are the enemy, and this sometimes slips into, ‘They’re devils,’” he says. “But I don’t believe that at all. If I were a prosecutor, I would say to people, ‘Hey, I don’t make these laws. If you’ve got a problem with them, get them changed, for God’s sake. Meanwhile, I’ve got to do my job.’”

“Don’t be tempted to shoot the messenger,” McManus adds. “And as far as Jim Ewers is concerned, it may not be a deterrent to the general population of drug users. But I’ve gotta tell you, if you’re a user as a lawyer, it’s sure going to give you pause.”