Kafka's Last Trial

by Benjamin Balint

  In 1922, Brod asked Kafka to consider taking over the editorship of Der Jude, the Zionist monthly edited by Martin Buber and bankrolled by Salman Schocken. Five years earlier, in 1917, Kafka had published a couple of stories—“A Report to an Academy” and “Jackals and Arabs”—in the journal. In June 1916, Brod had written to Buber that Kafka’s deep longing for community, for escaping rootless solitude, made him the “most Jewish” writer of all.

  Kafka declined the offer, but not, as might be expected, for reasons of precarious health. “How could I think of such a thing,” Kafka replies, “with my boundless ignorance of things, my lack of connection with people, the absence of any firm Jewish ground under my feet? No, no.”

  Both the Promised Land and promised community remained unattainably distant. “What is Hebrew,” Kafka had written to a fellow tuberculosis patient Robert Klopstock in 1923, “but news from far away?”

  _____

  In the final year of his life, Kafka at last moved out of his parents’ apartment and escaped their orbit. From September 1923 to March 1924, he lived “a half-rural life,” as he wrote to Brod, in the outlying Steglitz district on the outskirts of Berlin. He had come here to live with Dora Diamant, a woman twenty-one years his junior who had broken with her family’s strict Hassidic orthodoxy. “The rich treasure of Polish Jewish religious tradition that Dora was mistress of,” wrote Brod, who visited their Berlin home several times, “was a constant source of delight to Franz.” Dora and Kafka attended introductory classes on the Talmud at the Academy for the Study of Judaism on Artilleriestrasse (today the Leo Baeck House) until January 1924, when his health deteriorated. He called the academy “an oasis of peace in wild Berlin and in the wild regions of the inner self.”

  At the pace of a page a day, Dora also guided Kafka through the first three chapters of Y. H. Brenner’s bleak last novel Breakdown and Bereavement (Shekhol ve-Kishalon) in the Hebrew original. The novel, which has been called “the most brutal self-flagellation in Hebrew literature,” was a remarkable choice. Brenner, the tragic rationalist of Hebrew letters, stressed that “exile [galut] is everywhere.” For Brenner, the Land of Israel is yet another diaspora. “I am not enjoying the book very much as a novel,” Kafka told Brod.

  Dora later said that she and Kafka “constantly played with the idea of leaving Berlin and immigrating to Palestine to begin a new life.” The couple fancifully imagined opening a Jewish restaurant in Tel Aviv; Dora would cook and Kafka would serve as the waiter, a position from which he could observe without being observed. (In Kafka’s eighteen-page handwritten Hebrew vocabulary notebook, he lists the Hebrew word for waiter—meltzar.) But the dream of Zion would remain a dream unfulfilled. Kafka allowed himself to imagine moving to Palestine only when his illness was so far advanced as to make the move impossible.

  In July 1923, Hugo Bergmann and his wife, Elsa (née Fanta), made one final plea to Kafka, inviting him to Jerusalem with them. “Once again the temptation beckons,” he said, “and again the absolute impossibility answers.” The Bergmanns left Prague with a photograph of Kafka instead; when they returned to Jerusalem, they placed it on the piano in their salon.

  As his tuberculosis waxed and his strength waned, Kafka reflected on the beginnings that went unfulfilled. “There was not the least bit of enduring resolve in the way I conducted my life,” Kafka confides in his diary in 1922. He goes on to list a series of the broken radiuses of his life’s circle: “anti-Zionism, Zionism, Hebrew. . . . attempts at marriage.” As with Felice, Julie, Milena, and Dora, Kafka, with his dread of conjugality, loved at a distance. He confessed as much in a letter to Brod in 1921: “I can love only what I can place so high above me that I cannot reach it.” Palestine—and the Hebrew language coming back to life there—proved unattainably distant. Marriage and the Promised Land: two forms of happiness deferred, yearned for but not possessed.

  In Eva Hoffe’s view, perhaps this was for the best. In the oppressive humidity of a midsummer’s afternoon in Tel Aviv, Eva and I walked along Dubnow Street. She was wearing a T-shirt brightly printed with an image of Marilyn Monroe and a loosely draped skirt. She carried three plastic bags of photos and documents that she wanted to show me, including her birth certificate and Czech passport. “Although I’m an Israeli and a Jew,” she said, “I can’t say I love this place.”

  I mentioned coming across an interview Brod gave to the Israeli paper Maariv in October 1960. He had told the interviewer: “If Kafka had merited to reach the land of Israel, he would have created works of genius in Hebrew!” I added that in her forthcoming novel, Forest Dark, the American Jewish writer Nicole Krauss imagined a counterlife for Kafka and unspools a kind of “what if.” Krauss’ narrator discovers that Kafka came to Palestine between the World Wars, settling there in obscurity under his Jewish name Amschel (also the name of his mother’s maternal grandfather).

  Though she had never met Kafka, Eva reacted with acerbic incredulity. “Kafka wouldn’t last a day here,” she said, kicking the hem of her threadbare skirt against her shins.

  “Science Fiction: F. K. in Tel Aviv 1957,” pen-and-ink drawing by Jiří Slíva, 2013.

  “Franz Kafka in the Waves,” etching by Jiří Slíva, 2013.

  5

  First and Second Judgments

  Tel Aviv Family Court, Ben-Gurion Avenue 38, Ramat Gan

  October 2012

  Kafka is to Jewish literature what Dante is to Catholicism or John Milton to Protestantism: the archetype of the Writer.

  —Harold Bloom, 2014

  As the hearings in the Tel Aviv Family Court continued, so had the sales of Kafka’s manuscripts from Israel. In 2009, much to the consternation of Israeli authorities, two documents in Kafka’s hand were auctioned off in Switzerland. Both had at one point been in Esther Hoffe’s possession. One of the documents is an eight-page letter from Kafka to Brod (dated September 1922, and sold for 125,000 Swiss francs): “I know allusions of the terror of loneliness,” Kafka writes to Brod. “Not so much the loneliness of being alone, as that among people.” (Klaus Wagenbach called the letter “one of Kafka’s most beautiful ever.”) During the decade Esther had been selling off her Kafka manuscripts (1978–88), the National Library had never raised an objection. Now, it tried in vain to block the sale.

  Even as the trial progressed, it remained unclear which manuscripts Eva Hoffe kept at her home on Spinoza Street, and which in her bank vaults. Hoffe signed an affidavit in which she declared that she no longer had anything in her apartment that was written in Kafka’s hand. Eva herself contributed to the concern about their fate when she claimed burglars had broken into her Tel Aviv apartment during the trial. To this day, it’s not clear what was stolen from her apartment, if anything.

  There had been one attempt to catalogue the estate. In the 1980s, Esther Hoffe commissioned Bernhard Echte, a Swiss philologist and then-director of the Robert Walser Archive in Zürich, to draw up an inventory of the manuscripts in her possession. His inventory, running to more than 140 pages, lists some twenty thousand pages of material. A closely guarded secret to this day, the Echte inventory was not made available to the court.

  In 2010, Judge Kopelman Pardo of the Tel Aviv Family Court ordered the opening of the Hoffe family’s deposit boxes—four in a Zürich bank, and six others in Tel Aviv (Bank Leumi on Yehuda Halevi Street). Eva was permitted to be present neither in Zürich nor Tel Aviv. In Tel Aviv, she tried, in a rush of rage, to enter the room. “They’re mine, they’re mine!” she shouted. “A wild animal performance,” she remarked to me when she recalled that day.

  The Hoffe vaults in Zürich, at UBS on the Bahnhofstrasse, were opened July 19, 2010. Yemima Rosenthal of the State Archives had asked Professor Itta Shedletzky to lead a court-appointed team to review the material in the Swiss vaults and help inventory their contents. She would be paid by the Justice Ministry. Shedletzky, a respected expert on German literature at Hebrew University, is the editor of Gershom Scholem’s letters and coeditor of the critical edi
tion of Else Lasker-Schüler’s Works and Letters. She remembers as a teenager reading Brod’s novel on Cicero (Armer Cicero, 1955), serialized in the Neue Zürcher Zeitung. For Shedletzky, born in Zürich in 1943, it was a curious homecoming. She found herself in the city of her childhood, on the very street where she used to go window-shopping with her mother.

  Here, too, Eva showed up uninvited and tried to force her way into the vault room. She suspected the lawyers were hunting for a “hidden” will of Brod (later than his 1961 will), and feared one of the lawyers might pocket a manuscript. The Swiss bank manager threatened to summon the police if she did not leave the premises voluntarily. She adamantly refused. “I was trembling inside, but didn’t show them my fear,” she told me. Shedletzky took her aside and succeeded in calming her. “Ehud Sol looked at me as though I’d tamed a lion,” Shedletzky told me.

  Ehud Sol, executor of Brod’s estate, recalled the moment. “In Switzerland, they took us to huge vault rooms, where the branch manager and staff were waiting for us, aware they were witnesses to an historic event. When we opened the vaults—and this is conduct unbecoming a lawyer—we had tears in our eyes,” he told the Israeli newspaper Haaretz. Given Sol’s reputation as a ruthless litigator, his admission that he had shed tears was a striking testament to the significance of the occasion. (Shedletzky, however, calls this story “nonsense.”)

  Four boxes yielded manuscripts Brod had deposited during the 1950s. The first glimpses proved tantalizing: In deposit box S6588, Brod had left a note, dated 1947, on a brown envelope, declaring that the enclosed three notebooks of Kafka’s Paris diaries belonged to Esther Hoffe.

  In deposit box S6577 they found, among other items, a brown file folder on which Brod had written in black ink: “Kafka’s Letter to his Father, original (property of Mrs. Esther Hoffe.)” Underneath, in blue ink: “My property [mein Eigentum]. Ilse Esther Hoffe, 1952.”

  Deposit box S6222 held two folders. On the first, Brod had written: “Kafka’s letters to me which have been published, originals, my property, belonging to Esther Hoffe.” On the second, Brod had written: “Kafka—my letters to Franz—belongs to Esther Hoffe—April 2, 1952, Tel Aviv, Dr. Max Brod.”

  Brod’s notes on the envelopes and files were photographed, and Ilan Harati of Israel’s State Archives checked the state of preservation of their contents. The discoveries seemed to confirm that Brod had given Esther Hoffe possession of the Kafka manuscripts during his lifetime.

  They also confirmed Brod’s obsession with collecting everything, especially anything with Kafka’s handwriting on it (including Kafka’s sketches and doodles).

  Shedletzky, tasked with jotting down an inventory of the material in the deposit boxes, felt unduly rushed by the Israeli lawyers in the vault room. But she had time enough to take note of correspondence Esther Hoffe conducted with the German editors of the critical edition of Kafka’s works, letters that proved that despite claims to the contrary, Hoffe allowed “systematic and regular” access to the Kafka papers in her possession. Incredibly, Shedletzky was never asked to submit her findings to the court.

  Her inventory remained incomplete in another way. Eva Hoffe told me she had been fined 15,000 shekels (roughly $4,200 today) for refusing a court order to submit her home to a search so that the manuscripts there could be inventoried. Such a search reminded her of “Gestapo tactics,” she said.

  The incomplete inventory of the Tel Aviv and Zürich vaults, running to 170 pages, listed some twenty thousand letters (likely including some seventy letters from Dora, Kafka’s last lover, to Brod), Brod’s unpublished diaries,* two-dozen unknown drawings by Kafka, and original manuscripts of Kafka’s short stories (including “Wedding Preparations in the Country”). In late February 2011, the inventory was submitted to Judge Kopelman Pardo.

  In the meantime, Eva Hoffe said she had to rely on handouts in order to survive. Although she, like her mother, received reparations from the German government, she said she had spent most of her savings to pay for her mother’s rehabilitation at Ichilov Hospital after Esther suffered a stroke. And her legal expenses were mounting. Claiming financial hardship, she had her lawyer Uri Zfat petition the court to release at least the monetary portion of her mother’s estate (including reparations Esther had received from Germany and that according to Eva had accumulated to some 4 million shekels, or more than $1 million). In August 2011, Judge Judith Stoffman of the Tel Aviv District Court granted the motion, and allowed Eva and her elder sister Ruth Wiesler to inherit 1 million shekels (roughly a quarter of a million dollars) each.

  For Ruth, a retired seamstress and aromatherapist, it was too little and too late. She had been so distraught over the trial that she couldn’t bring herself to attend the hearings or even to read the court protocols. She died of cancer at age eighty in 2012, leaving her sister Eva to carry on the battle alone. “I hold the National Library responsible for the death of my client,” Ruth’s lawyer Harel Ashwall told the Sunday Times. “They have behaved in a very aggressive and inappropriate manner. I think what they have done is to try and exhaust Ruth and Eva until they gave up.” Ruth had two daughters, Anat and Yael. Anat likewise blamed the tribulations of the trial for her mother’s demise. “A woman who was healthy all her life suddenly gets cancer and dies—she was absolutely annihilated from it,” she told Haaretz.

  _____

  In October 2012, half a year after Ruth’s death and five years after Esther Hoffe’s death, Judge Talia Kopelman Pardo of the Tel Aviv Family Court issued a fifty-nine-page judgment. She opened on a lyrical note. “It is not every day, and certainly not as a matter of course, that a judge plumbs the depths of history, revealed before her fragment by fragment, shard by shard, more enigmatic than intelligible. A simple request filed by the plaintiffs, the daughters of the late Mrs. Esther Hoffe, to execute her will has opened a portal onto the lives, desires, frustrations—indeed the souls—of two of the twentieth century’s great spirits.”

  Justifying the reopening of a case brought against Esther Hoffe and decided by Judge Shilo forty years earlier, the judge took the unusual step of citing a passage of fiction—Kafka’s The Trial:

  In an actual acquittal, the files relating to the case are completely discarded, they disappear totally from the proceedings, not only the charge, but the trial and even the acquittal, everything is destroyed. An apparent acquittal is handled differently. There is no further change in the files except the adding to them the certification of innocence, the acquittal, and the grounds of acquittal. Otherwise, they remain in circulation; following the law court’s normal routine they are passed on to the higher courts, come back to the lower ones, swinging back and forth with larger or smaller oscillations, longer or shorter interruptions. These paths are unpredictable. Externally it may sometimes appear that everything has been long forgotten, the file has been lost, and the acquittal is absolute. No initiate would ever believe that. No file is ever lost, and the court never forgets.

  The 1974 decision in favor of Esther Hoffe had not been forgotten, Judge Kopelman Pardo wrote, but now the unpredictable oscillations had swung in a different direction. Kopelman Pardo rejected Eva Hoffe’s probate of her mother’s will. She did not rule on whether Brod owned Kafka’s manuscripts, but she did accept the Israeli state’s argument that Brod had bequeathed his estate—Kafka papers included—to Esther Hoffe not as a gift but in trust. If certain conditions are not met, a gift may be legally invalid despite the donor’s or testator’s intention.

  Although Brod intended to give the manuscripts to Esther Hoffe as a gift, they remained in his de facto control; he alone decided their fate. Even after signing promissory notes to Esther, Brod behaved as though the Kafka papers remained his. In April 1952, for example, Brod wrote to Marianna Steiner in London, listing which of Kafka’s manuscripts belonged to him and which to Kafka’s surviving family heirs. He makes no mention of having given anything to Hoffe. In August 1956, Brod signed a document specifying under what conditions he would allow the
German scholar Klaus Wagenbach to consult those papers: only in Brod’s apartment, only for research and not for publication, and so on. Brod, and not Esther, granted the permission and set the terms. Finally, in an interview he gave the Israeli newspaper Maariv in October 1961, Brod said: “I’m still deliberating what to do [with the Kafka manuscripts].” The interviewer asked if he could see them. “No! I keep them in a bank vault.” He says I, not Esther and I. (Judge Kopelman Pardo did not address the testimony Esther Hoffe gave in the 1973–74 case, according to which Kafka’s manuscripts of “Wedding Preparations in the Country” and “Descriptions of a Struggle” “were in my safe since 1947, and when he [Brod] wanted it for work, I brought it to him.” In a hearing on January 11, 1974, Hoffe likewise testified to Judge Yitzhak Shilo about Kafka’s manuscript of The Trial: “I received it, I think, in 1952, and put it in my safe. He [Brod] gave it to me. I took it out of his house. Only when he worked on it did I bring it to him.”) In any case, Esther never dared to sell one of Kafka’s manuscripts while Brod was still living. (Eva Hoffe claimed that her mother chose not to sell the manuscripts in Brod’s lifetime for the simple reason that he was consulting them for his work in editing and publishing Kafka’s writings.)

  Under clause 873 of the seventh volume of Mecelle law, the Sharia-based civil code of the Ottoman Empire that Israel adopted until it passed its own gift laws in 1968, the judge ruled that Brod’s gift to Hoffe had not been completed or consummated.* (Eva Hoffe took the suggestion that the gift that had defined her mother’s life was unconsummated as an especially sharp affront.) The Kafka manuscripts had never left Brod’s literary estate, Kopelman Pardo ruled. The judge interpreted Brod’s will as subject to the principle of “successive heirs.” In other words, since Esther Hoffe had made no other arrangement in her lifetime, Brod’s literary estate must be placed in the custody of a public library or archive as stipulated in Brod’s will. Esther had the right to decide where the literary estate would go, but having not exercised that right she did not have the right to pass that decision to her daughters.