Consider the following parable contained in Franz Kafka’s famous novel The Trial (German: Der Prozess):
Before the Law*
Before the law sits a gatekeeper. To this gatekeeper comes a man from the country who asks to gain entry into the law. But the gatekeeper says that he cannot grant him entry at the moment. The man thinks about it and then asks if he will be allowed to come in sometime later on. “It is possible,” says the gatekeeper, “but not now.” The gate to the law stands open, as always, and the gatekeeper walks to the side, so the man bends over in order to see through the gate into the inside. When the gatekeeper notices that, he laughs and says: “If it tempts you so much, try going inside in spite of my prohibition. But take note. I am powerful. And I am only the most lowly gatekeeper. But from room to room stand gatekeepers, each more powerful than the other. I cannot endure even one glimpse of the third.” The man from the country has not expected such difficulties: the law should always be accessible for everyone, he thinks, but as he now looks more closely at the gatekeeper in his fur coat, at his large pointed nose and his long, thin, black Tartar’s beard, he decides that it would be better to wait until he gets permission to go inside. The gatekeeper gives him a stool and allows him to sit down at the side in front of the gate. There he sits for days and years. He makes many attempts to be let in, and he wears the gatekeeper out with his requests. The gatekeeper often interrogates him briefly, questioning him about his homeland and many other things, but they are indifferent questions, the kind great men put, and at the end he always tells him once more that he cannot let him inside yet. The man, who has equipped himself with many things for his journey, spends everything, no matter how valuable, to win over the gatekeeper. The latter takes it all but, as he does so, says, “I am taking this only so that you do not think you have failed to do anything.” During the many years the man observes the gatekeeper almost continuously. He forgets the other gatekeepers, and this first one seems to him the only obstacle for entry into the law. He curses the unlucky circumstance, in the first years thoughtlessly and out loud; later, as he grows old, he only mumbles to himself. He becomes childish and, since in the long years studying the gatekeeper he has also come to know the fleas in his fur collar, he even asks the fleas to help him persuade the gatekeeper. Finally his eyesight grows weak, and he does not know whether things are really darker around him or whether his eyes are merely deceiving him. But he recognizes now in the darkness an illumination which breaks inextinguishably out of the gateway to the law. Now he no longer has much time to live. Before his death he gathers in his head all his experiences of the entire time up into one question which he has not yet put to the gatekeeper. He waves to him, since he can no longer lift up his stiffening body. The gatekeeper has to bend way down to him, for the great difference has changed things considerably to the disadvantage of the man. “What do you still want to know now?” asks the gatekeeper. “You are insatiable.” “Everyone strives after the law,” says the man, “so how is it that in these many years no one except me has requested entry?” The gatekeeper sees that the man is already dying and, in order to reach his diminishing sense of hearing, he shouts at him, “Here no one else can gain entry, since this entrance was assigned only to you. I’m going now to close it.”
*Translation by Ian Johnston of Vancouver Island University, Nanaimo, BC, of Frank Kafka’s “Before the Law” (German: “Vor dem Gesetz”).
Kafka’s parable sprung to mind after I read Scott Greenfield’s disturbing post about criminal defense attorney and blawger Rick Horowitz— on his encounter with Juvenile Justice Court security. In his post entitled “Overlords“, Rick paints a disturbing picture of what can only be characterized as Kafkaesque:
This morning, when I arrived at the Juvenile Justice Court for a case, I found four or five deputies at the front. A deputy district attorney was walking ahead of me. She went through the metal detector without stopping, and (I assume, based on the direction she was heading) on to her office. I put my bag on the x-ray machine belt, as always, and pulled out my identification to show, as always. But I was stopped.
“You have to empty your pockets.”
“What?,” I asked.
“You have to empty your pockets.”
The officer said something about a new security issue or something along those lines. He stated that they were making all court personnel and attorneys empty their pockets now.
“A court person went through just ahead of me,” I said, motioning in the direction the prosecutor had gone. “You didn’t check her.”
And then one of them told me it was because of my blog post yesterday. He even specifically referenced the sentence that they found so offensive. “So now you’re a security risk,” I was told.
Because of something I wrote. Something which — I will admit — was offensive. Something which, in retrospect, I even wish I had not said (but not because of what happened today; I still haven’t stopped being intermittently amused and deeply concerned by the illegality of what happened today). After all – I probably shouldn’t say this — but I actually like some law enforcement officers.
Greenfield sums it up well:
How offensive was Rick’s criticism? It doesn’t matter. Payback for being critical of law enforcement in a blawg is intolerable. Rick has had much to say about his perception of the police state and the dwindling options available to us to stop the decline. His voice has no doubt angered those who depend on the love and ignorance of the public for compliance to their authority. He has pissed people off.
But Rick Horowitz will not suffer the indignity and payback in silence. And every blawger, and reader, and judge, and person, should be aware that this is how the Fresno sheriff tried to teach Rick Horowitz a lesson.
Gideon’s point about ‘police state creep’ is apposite:
In thinking about this, something amusing occurred to me. People love the justice system; they love law and order and despise the only friend they’d have if they ever got in trouble: the defense lawyers. You know what happens if you piss off a judge? More jail time, a bad ruling, higher bail. You know what happens if you piss of a prosecutor? More charges, worse offers. You know what happens if you piss off a sheriff or marshal? A beatdown in lockup.
What happens when you yell and scream at and threaten your lawyer? Nothing. “Your Honor, I know my client indicates that he’s unhappy with me, but I’m willing to continue to represent him.”
The Rick Horowitz’s of this world will continue to fight and stand in the way of this abusive justice system and you won’t even know it and you might even despite him for it. But he doesn’t do it for the thanks; he does it because that’s what he believes in.
Eric L. Mayer finds a silver lining in Rick’s trial by ordeal:
His is a win because we are caused to think about a few things:
- If someone is offended at something you say, they can screw with you and make your life difficult. This can happen even if they are paid with your tax dollars and purport to operate to support and defend the Constitution.
- Those with actual government authority can retaliate against us in ways that make our life difficult, even if they are merely offended and you did nothing legally wrong.
- Law enforcement is necessary and beneficial, but there is the constant danger of them operating with the mentality of a fraternity or pack. When they stray, they still wield power and authority. We protect ourselves by being vigilant and keeping our cool.
- The fellow attorney who stayed in the area “just in case” deserves a drink, or lunch, or, hell, even a fruit smoothie (I hope you comported to this appropriately, Rick.). There are occasionally events that show that we lawyers, even those who compete for the same business, are a pretty darned tight-knit group. This was one of those times. Celebrate it, and then demonstrate it more often.
- We must constantly remind government officials that we are watching them.
- We are caused to ask ourselves this: What if Rick was completely alone with the several officers at the security check?
In Blawg Review #319, I wrote about the Power of Myth and the Myth of Power and said,
Where power resides in the State; wielded by the wealthy, the privileged, and oftentimes, the corrupt; lawyers play different roles in the theater of the Rule of Law. Some are foot soldiers, others, field marshals. The few who are elevated to the Bench become judges; some forgetting from whence they rose up.
Yet, all lawyers, ultimately, must either succumb or rebel against the myth that the law treats everyone equally.
Rick Horowitz did not succumb. He did not surrender. He did not retreat.
Rick did not storm the garrison or fall on his sword.
What he did was far more subversive. He bit his tongue but did not let those in power cut his tongue off.
He spoke the truth and shone a light to expose an injustice. He spoke up when others would have remained silent.
He is a rebel. He is a legal anarchist. He is a Trial Warrior.
- Blawger Rick Horowitz Will Not Be Silenced (simplejustice.us)
- Huge Win for Rick Horowitz (unwashedadvocate.com)