They provided benefits for injured workers. There was a great outgrowth of factories during that time, lots of injury so they took care of that and they also did some regulation of the factories that were growing up there in bohemia. Jewish background. His father grew up in jewish peasantry became relatively welltodo merchant store owner and kafka studied law and got a doctorate in law in prague when two german schools even though hes from jewish and czech background and so became a figure in german literary circles around the turn of the century. During his lifetime he only published a small number of short stories that he wrote three novels and all of them are published after his death and he actually left instructions may be halfhearted to his executor that the novels be burned because he didnt think he was satisfied with them but fortunately for us that instruction was ignored in his executor sort of reedited them in the form that we have them today. Host said he was a bureaucrat essentially on a daytoday races. Guest he was a bureaucrat on a daytoday basis that he knew the beast from the inside and he has a lot of her collections on bureaucracy. He was very effective as a lawyer. His employers would not allow him to be drafted into the worst world war although sometimes he wanted to do that because they said he was so essential for the organization. He wrote lots of report suggesting the improvement of safety provisions they are in the factories and after the war he actually was instrumental in creating the first we might call sanitary for returning veterans who were returning from war are tremendously injured and broken. So the picture of him that was often that of a tortured artist who writes these varied dark fantasy books but he was also a man of the world, very effective as a lawyer effective in the public arena a great friend. He had lifelong friends and was the life of the party sometimes. So its a very complex man. Host not necessarily as wellknown then in his lifetime as he is today. Guest thats right. There was some recognition by a few figures that this guy has got Something Special but his major works were not known and they havent been published of this judgment was based on a relatively small number of short stories that he wrote during the time the most famous the metamorphosis that the protagonist wakes up one morning and finds hes transformed into an great cockroach and then the rest of the story is about how his family adapts to that and live as a large bug. Host professor burns when we hear the term have to ask what does that mean to us . Guest it means an incomparable to us dark twisted darkly ironic, the result is irrational and usually destructive in some kind of way. If you run what we call a lexis or westlaw search you will see that word come up a lot in american case law. Judges are often inclined to use the word kafkaesque in describing the way our criminal Justice System works. So that is the term, that is where the term has come from and largely its because of this novel thats where the word comes from. Host lets start with that. What is due process and how to become a trial . Guest the usual translation of the process is the trial but its really a mistranslation because the process in the continental system doesnt really allow for what we think of as a trial, one large plenary dramatic encounter between two prepared sites in which the judge is relatively passive. There are process is sort of an Ongoing Investigation by an examining magistrate who just keeps asking questions until he thinks he has learned everything he needs to learn to decide the case. So its not though they dont have there are some experimentation these days but during this era there were trials in the sense that we know them and the point of the book is that their system is focused on the authority of the magistrate read the magistrate runs it and the lawyers have relatively less central roles. They certainly are not the Major Players that they are in the american adversary trial system and so its much more authoritarian if you want to think of it. He decides what questions are the questions to be asked you know the person who decides what questions to be asked is the person who decides what the truth of the matter is. So the process is this process process is actually closer to trial by which judgment comes to be passed in the continental system. We adversary lawyers in the angloamerican tradition like to call that a quiz a tutorial because it has that bad connotation of the inquisition about it and certainly kafkas works do have the kind of sense at the inquisition about them in the dark sense. Host so franz kafka wrote due process to trial in 1914 15. One was a published . Guest it didnt come out until the late 20s. Max braude was his executor and he put it together after his death and in 1924 died of tuberculosis at a very early age, very early at that time preantibiotic era. He rearranged the chapters to some extent to create what looks like a novel. It is the novel does the work of his that looks most like a novel because the protagonist joseph kay was arrested on the first page and execute them on the last page so it hasnt beginning, middle and end and but its often been said that the three novels that he wrote are not novels and our sense. They really are a series of parables. Every chapter is a kind of terrible. In some ways the same conflict is dramatized in each one of those chapters and here you kind of get a resolution but not completely. Host you open your book with that quote by Justice Anthony kennedy. The trial is actually hosted to reality than abizaid as far as that goes perception of the system. Its supposed to be a fantastic allegory but its reality. Its very important that lawyers read it and understand it. Guest thats right and i agree with Justice Kennedy on that reader might go so far as to say not only from the clients point of view that is in accurate representation of the system but even from a more objective point of view. There are elements that the american criminal Justice System that bear an uncanny and disturbing relationship to the picture of bessie puts it the law of capitalized in the book the law as he describes it in the book. Host you walk us through a case study. Who is david kerosene no . Guest David Saraceno was a young man, 18 years old. He was arrested for arson and there had been a fire in a parking lot where a group of school buses were so he was arrested and interrogated by several detectives, interrogated under the suspicion of arson and appointment make in the book is that in the how to manuals that detectives use for interrogation the first premise is assumption of ill. You assume that the person you are interrogating is guilty and he steered the conversation to the point where the only question is how did you do it, when did you do it not why did you do it but never did you do it and this was a young man only 18 years old. These guys were very aggressive and top with him. They basically said we know you did it. We found your fingerprints on the scene. That was a lie. We found accelerant which is a chemical that makes buyers move faster. We found accelerant on your boots which was also a lie. He said those were my dad boots, not mine. They said the only way our you are going to be raped in jail is going to be bad for you so let us help you and give us what we want here. He said he wants me to lie about this and they said you do what you think you need to do. You do what you think is right so he did. And this is a pattern that repeats itself to many times, hundreds of times in the american system. Its attacked is basically fed him enough of the details of the event such that he could piece together a relatively coherent story discontinuities and loopholes because he didnt do the crime. He did confess and as is the case in 85 of the cases he was convicted at trial, no surprise there and while he was, after his trial and his conviction other investigators, ill bet they were insurance investigators although the sources i have them describe it. They discovered who really did set the fire so they learn somebody else had set the fire after the trial and the prosecutors and the courts came to be aware of that. Unfortunately for the prosecutors the statute of limitations for arson had run by that time so they couldnt prosecute the actual perpetrators. So they were stuck with saracino and perhaps they were worried about a civil suit from him. What they said to him was okay we will dismiss the arson charge if you confess to a lesser included offense, a lesser charge destruction of property. He said no i am not going to do that. I didnt do it and im not going to take a chance. They made him another offer. They said that the confess to impeding an investigation by falsely confessing after they had coerced this confession, you could walk away with probation. So he was tired of this ordeal. Sorry to keep spending his Parents Money on criminal defense of the confess. That is confessing to basically keep changing your story in order to meet the perceived needs of the bureaucracy and the theme of this book is our system both the system up policing and the system of prosecution have become bureaucracies. They have their own ideas. They have their own imperatives, their own ways of doing things and theres really no way of avoiding that pressure. Host professor burns when you write the story of David Saracino in the book is a very compelling story that you are defense lawyer by practice so if the prosecutor were sitting here how would the interpretation of this story be different . Well i mean the prosecutors have come to concede that there are prosecutions have been false prosecutions. There has been a lot of study of false convictions in the United States and one of the major bases of that of false convictions are false confessions. Its antiintuitive than the folks who wrote these manuals one who taught at Northwestern Law School actually 50 years ago basically said if we can get a confession we can be assured that the person who confessed was the perpetrator because people dont confess falsely and jerry still believe that no surprise about that. That turns out not to be true. It turns out the psychological pressure that can be brought to bear on an isolated individual by extremely adept interrogators can break down young people, people of limited intelligence and even what would we would call ordinary people to the point where they think their only way out is to confess. Thats basically the message given to joseph kay in the book. We can only help you to confess. You have got to confess and that kind of psychological pressure has produced many false confessions in the United States. So that is one of the major sources of false convictions in the United States. Hossa does the public understand its legal rights and its rights once it enters into the criminal Justice System . Guest thats answered this way. Career criminals and very sophisticated white caller or most may understand their rights for someone who is not a career criminal or i sophisticated whitecollar criminal does not really understand his rights involved though we see the miranda warnings given on television they are almost universally waved by defendants because of the pressure. Its hard to understand it if you have a then there but the pressure to get out of the stifling hostility of that room and the pressure to befriend the person who is your oppressor and stockholm syndrome i want to be on the same side as the guy with a power who can hurt me, that pressure is so great that its easy for an experienced interrogator to convince somebody to please him, to give him what he wants and thats especially true of young people and especially true of people with limited intellectual abilities. Almost everyone waves their miranda rights even if they are given and sometimes they are not not. So that is a relatively less important because its almost universally waved. The whole pressure the encounter is i can only help you if you talk to me and we are the ones who can help you. And it works. Host the third chapter you write turns her on criminal Justice System the action as we actually administer it. You first sketch out some the salient aspects of the social graph background with and which our criminal Justice System operates to imprison one out of every 100 men. Guest there is much concerned about this today. The new jim crow is a book that was written just recently. It got a lot of attention so we incarcerate many times the population of other advanced industrial democracies of western europe. We in coarser rate more people than did the soviet union on a percapita basis in iran and that is an extraordinary feature of our world. Now, there are some pushback these days and worry about it. I am waiting to see whether or not this is talk or whether something was going to be done about this. And the kafkaesque perception on this is issue probably will not, that this is functional, mass incarceration is functional in our kind of society. The populace will not tolerate levels and levels of street crime we saw in the United States in the 60s and 70s. Political response to that was to allow prosecutors to succeed more often, that is to get more plea bargains and to take folks up the street. We now have one author said a system of incarceration that resembles the soviet gulags more than anything else. Prisons placed at great removed from the Population Centers filled with individual guilty, many of them guilty of drug crimes but other crimes as well so that solves the problem for us. It solves the problem of social dislocation and of the threat that the ballfield especially violent street crimes by strangers and politicians and even former prosecutors had a good ear for that. Even democratic politicians headed good ear for a meeting that perceived need to make our streets safe. The way we have done that is to incarcerate one out of 100 of our fellow citizens which is extraordinary the number. Its even more dramatic in minority communities. Host you talk in your book about the unknowability of procedural and substantive criminal law. Guest one theme in the book is the law or the law cant be known. Theres a scene at the beginning of the book where the guards show up at joseph kays room and say we are arresting you for violation of the law and joseph kay says that i didnt do anything wrong. They said do you know what the law is and he says i dont know what the law is. How can you be sure you havent violated it . Have you lived a perfect life and in the novel he is german at one point if he doesnt know what he is accused of and doesnt know what the law says to write his autobiography as a way of proving to the court that he has never violated any law which horse is a preposterous suggestion or he has never done anything wrong. In the United States our criminal law has flowered if you can call it that over the last 25 years. The easy approach that legislators are taken to solve many different kinds of social problems does is to pass a criminal law. There are now so many criminal laws especially federal criminal laws that its hard not to violate the one or another of those laws in the course of living an ordinary life. Our last three president s of the United States have admitted to violating drug laws at one point or another and its only the indulgence of prosecutors over the past that have kept them from being of accused and perhaps incarcerated during that time so the growth of the criminal law is a mode of social control and an individualist animistic capitalist fastmoving society has been our go to solution than the result of that is a law that no one can really know. You cant know all the elements of it. Even some of the studies that all the time claims not to know it. Till stunts a professor at harvard who died recently sadly at an early age wrote a book called the collapse of american criminal justice and one point he makes in the area is insofar as you want to look to the written law to determine what the criminal law is. We really dont have a criminal law because what determines whether an individual is prosecuted or not is the prosecutorial discretion that prosecutors have to prosecute across such a large range of possible criminal laws that anyone can be a defendant. So its only the indulgence of prosecutors to keep any of us from being dipped in those. Thats true with regard to substantive law and the procedural law as well. Theres a long section in there more to talk about the search and seizure law the law of interrogation, the law of evidence that is so complex and so shot full of discretion that government actors can maneuver that law to produce whatever results that they choose. Now, most of our prosecutors or defense decent people but nonetheless the worst kafkaesque results dont often occur although they do occur but thats a big newly worry a certain position to be in. The skull of these decent people as you describe them are part of the american criminal Justice System. Is there a way to get out of the Current System currently as it exists . Guest when this manuscript was circulated one of my reviewer said the part of the book that is dark and bleak and describes well how well threatening our system is and how kafkaesque it is very convincing but your last chapter in which you say we do have some paths open to us that kafka could not imagine being a Central European lawyer thats less kafka asked. You want to leave us with that hope so that one reviewer said your dark assessment is more convincing that the hope that you offer. Since then another viewer said this is a tremendously dark book book, my book is and you are not really offering us hope so ive been criticized for being too hopeful and also too pessimistic i think there are elements of our system that kafka could not have imagined that offer hope. What is the jury trial. The jury trial has become less and less available less the one out of 20 criminal cases actually go to trial. Ours is on the ground is basically a system of the least interrogation followed by plea bargaining. If you make the minimum sentences for enough charges high enough and the maximum send you allow prosecutors to multibyte charges a plea bargain is an offer that you cant refuse and only a mad and will go to trial and exposed himself to a 30year sentence when he has offered a threeyear sentence. Our system on the ground is a system of plea bargaining int