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Title: A Question of Identity

Author: Frank Riley

Release Date: October 10, 2019 [EBook #60467]

Language: English

Credits: Produced by Greg Weeks, Mary Meehan and the Online Distributed Proofreading Team at http://www.pgdp.net

*** START OF THIS PROJECT GUTENBERG EBOOK ***

A QUESTION OF IDENTITY

BY FRANK RILEY

What is a Man?... A paradox

indeed—the world's finest minds

gathered to defend a punk killer....

[Transcriber's Note: This etext was produced from

Worlds of If Science Fiction, April 1958.

Extensive research did not uncover any evidence that

the U.S. copyright on this publication was renewed.]

Every pair of eyes in the hushed courtroom watched Jake Emspak walk slowly toward the prospective juror.

Around the Earth, and above it, too, from South Africa and Franz Joseph Land to the satellite stations adrift through the black morning, two hundred million pairs of eyes focussed on the gaunt figure that moved so deliberately across the television screen.

In the glass-fronted TV booth, where the 80-year-old Edward R. Murrow had created something of a stir by his unexpected appearance a few moments earlier, newsmen stopped talking to let the viewers see and hear for themselves what was happening.

Jake halted in front of the witness stand, both hands cupped over the gold head of the cane that had been his trademark, in and out of court, for most of a half century. The shaggy mane of white hair, once as black as the coal in the West Virginia mining country of his birth, stood out like an incongruous halo above the bone ridges of his face. The jutting nose, the forward hunch of his body accentuated the impression he always gave of being about to leap on a nervous witness. The magnificent voice, which could thunder, rasp, weep and persuade in all the registers of eloquence, now phrased his first question with disconcerting softness:

"What is a man?"

The prospective juror, a Bronx appliance distributor with sagging jowls and perpetual tension lines around his mouth, started visibly.

"I—I beg your pardon?"

Again Jake Emspak gently phrased his question:

"What is a man?"

The distributor, who could wake up out of a sound sleep and address a sales meeting of unhappy dealers, opened his mouth and closed it again. Jake waited patiently, rocking a little on the point of his cane.

Finally, the distributor said:

"I can't answer that—right off...."

"Thank you," Jake said mildly.

He turned to Judge Hayward and nodded his acceptance of the juror.

Up in the TV booth, Murrow smiled to himself and listened to his colleagues chew over the familiar questions: Why had Jake Emspak, the "million dollar mouthpiece", taken a cheap case like this away from the Public Defender? Who would possibly pay him enough to defend a punk like Tony Corfino—a bungling hoodlum who had killed two bystanders in a miserable attempt to rob a bank?

The Judge noted acceptance of the juror, then brusquely recessed court until 10 A.M. Monday.

The timing was excellent. Jake smiled with satisfaction, and his smile was like the slash of a paring knife across the skin of a dried apple.

He walked with Tony Corfino and the bailiff as far as the prisoner's gate.

"Don't worry," Jake said.

Tony's eyes were wide and bewildered, like the eyes of a confused child—or of an old man not quite certain whether he is awake or dreaming.

"I ain't worried," Tony replied. As he walked, there was the crackling sound of a bone twisting in a stiff joint.

From under his shaggy brows, Jake studied him carefully, and was content with what he saw. Tony could have been very young, or very old. Undoubtedly he was both, with a lot of in-between, Jake thought suddenly. The tangle of black, curly hair was the hair of youth. The cameo-smooth skin had the waxed perfection of an expensive doll. But the mouth and lips were still puffy, sensuous. And the eyes—Jake Emspak, for all his knowing, couldn't be sure about the eyes. Silently, he addressed a memo to himself: Check on the eyes.

At the prisoners' gate, Tony faced him.

"I ain't worried," he repeated. "It's just—well, I don't see why you're takin' my case—I can't pay anythin'...."

The thin smile slashed again across the wrinkled harshness of Jake's face.

"I'll be paid," he chuckled drily.

The District Attorney brought up the same question when Jake sat in his office two hours later. They had been studying each other across the desk, thinking of all the years that were gone, the good years dying with the new quarter of the century.

How many times had he sat here just like this, Jake wondered. How often had he come into this office to bargain and to deal, to cajole and plead—and always hovering like a hawk to pounce on any bit of information that could fit his case.

Now the D.A. was old, too. Older than Jake, if you measured a man's life by the inverse proportion of his distance from the grave. Even the limitless possibilities of medical science had about reached their limit with the D.A. He was heavier than Jake, and his skin was smoother, yet somehow it looked much older.

"I don't get it," he wheezed, with the shortness of breath that the latest bronchial replacement had not substantially relieved. "I just can't see Jake Emspak taking a case without a fee! Why, in the old days, you wouldn't defend your mother without a cashier's check in advance!"

Jake accepted the taunt without blinking.

"I'm touched by this solicitude for my fees," he retorted.

"Tony Corfino's guilty," said the D.A., moving up another pawn in the never-ending chess game between them. "He's a punk, and he's guilty. You know that, don't you, Jake?"

"Do I?"

"You know it—and damn well! I've got six witnesses who saw Tony walk into the bank with that sawed-off shotgun! I've got four more who saw him get panicky and start spraying lead! And there are a dozen others who helped load him on a stretcher after his getaway car went over the curve on the Parkway!... Hell, Jake, this is a two-bit case. Why are you taking it away from the Public Defender?"

"Now, Emmett," Jake mocked, "you know it's not ethical for me to discuss my client's case."

"To hell with your client!" The D.A. breathed deeply for a moment, then pressed ahead: "I don't care about that punk—I'm talking about you, Jake. What's this case mean to you?"

The chuckle started again, then died in Jake's throat.

"It means a lot, Emmett," he answered soberly. "For one thing, it's my last case...."

"What?" The D.A. looked stunned.

Jake nodded.

"I've been around the circle enough times for any man, Emmett."

Both of them absorbed this thought in silence, and the long years walked between them. The D.A.'s lips set, and the steel of his jaw showed beneath the soft folds of his skin.

"I guess it'll have to be my last case, too, Jake," he said quietly. Then he banged his fist on the desk. "But what a helluva case! What a helluva two-bit case! We've had some good ones, Jake—I've got the scars of them all over me! But why do we have to go out on something as cheap as this?"

Jake Emspak stood up, all six feet of him, and he brushed back his long white hair with a gesture that was fierce and strong.

"It's not a cheap case, Emmett! It's big—bigger than any case we've ever fought out!"

The reporters were waiting for Jake outside the D.A.'s office.

"Is it true you're retiring, Jake?"

"This is my last case."

"Why are you representing Tony Corfino?"

"You couldn't keep me out of a case as big as this."

"Can you tell us why it's so big?"

"I can, but I won't. Not until I get before the jury."

"Is robbing a bank and shooting two people so important?"

"Not particularly."

"What else did he do, then?"

"Nothing that I know of."

"Jake, this isn't some kind of a joke, is it?"

"It's the most serious case I've ever handled."

"Mr. Emspak, it was reported that you received $100,000 from your last client. Are you being paid for defending Tony Corfino?"

"I never discuss my fees."

"Would you object to a televised interview with Tony?"

"Certainly not. How about tomorrow morning?"

The reporters left, baffled and intrigued. That night, Jake Emspak sat alone in his apartment high over Central Park West, chuckling with satisfaction as he read the headlines in the first editions:

FAMED CRIMINAL LAWYER IN MYSTERY CASE

The other headlines were substantially the same. Jake grinned. Things were working out fine, just fine. Publicity was a wonderful tool, if a lawyer knew when to use it, and how. He showed one of the headlines to his wife, whose picture was in a mellow gold frame on the stand beside his window chair. Marge had been dead since '67, but he still found it a quiet comfort to share things with her. She didn't have to answer, because words weren't necessary after you'd lived and loved with a woman for forty-three years. His thin smile became warmer as he turned toward her.

"Mystery case!" he chortled. "Mystery! The only mystery is why someone hasn't tried a case like this before!"

He paused, looked across the park at the spangle of lights, and added softly:

"But I'm glad no one did."

Ed Murrow called just before Jake went to bed.

"Sorry you got into this?" Murrow asked.

"You know better than that, Ed. I'm deeply grateful to you for tipping me off on this case."

"Well, don't forget to tip me off, too, Jake! I'm not too old to appreciate a scoop now and then!"

"Don't worry, Ed...."

Next morning, Jake was rested and ready to meet the challenge of Tony Corfino's TV interview. He knew there was a danger Tony might say too much, but it was a calculated risk that had to be taken. The case needed build-up, plenty of build-up.

The interview took place in the open square between the towering cell-blocks of Manhattan's new jail. When Jake and Tony came out, the TV cameramen and reporters had already taken their places. The city's crack newspapermen were seated on folding chairs in front of the cameras, along with two men from the District Attorney's office who self-consciously tried to look like members of the working press. Jake sat down beside Tony and hunched forward watchfully over the gold head of his cane.

Bert Brown of the Tribune, whose pipelines into the D.A.'s office had brought him many an exclusive, shot out the first question. It came with a whiplash crack:

"Tony, are you paying Mr. Emspak to represent you?"

Tony looked uncertainly toward Jake, and when the old lawyer didn't answer, Tony said quietly:

"No—I'm not."

"Is the Syndicate paying Mr. Emspak?"

"I don't know why they should—I never got into the Syndicate." Tony's answer was expressionless, yet his voice had a strangely subdued quality for a Tenth Avenue kid who had grown up fighting for crumbs from the tables of underworld kingpins.

Cassidy of the Times interjected:

"Do you know who is paying Mr. Emspak to represent you?"

"Nope."

Now the sun broke through the morning overcast and gleamed on the polished perfection of Tony's waxlike skin. A woman reporter from the Mirror asked in an abrupt, mannish voice:

"Tony—what happened to your face?"

"The Doc says it's some new kind of plastic surgery. I got burned in that accident...."

"When you were driving away from the bank?" Bert Brown snapped out.

"Yeah."

Brown grinned in triumph. It had been a neat double play. The two investigators from the D.A.'s office scribbled furiously. Jake Emspak continued to stare into the TV cameras without blinking.

From the back row, a Daily News man boomed out:

"Then you admit the shootings, Tony?"

Jake lifted one finger from the gold head of his cane. It was a small gesture, but it silenced Tony's answer and immediately commanded the attention of everyone present.

"My client," rasped Jake, "neither denies nor admits any connection with the crimes for which he is being tried."

Bert Brown grinned sardonically at him.

"Do you expect to win this case, Mr. Emspak?"

"We'll win it," Jake answered, in a voice so cold and certain and hard that the reporters involuntarily joined the TV audience in a collective gasp.

Jake stood up and motioned to the deputies. It was time to end the interview. Precisely the right time.

The reporters left without further questions. They knew from long experience when Jake Emspak would and would not talk.

By that evening, speculation—without the ballast of facts—was soaring to dizzy heights. Even the communist angle came in for its share of limelight. Was Tony Corfino somehow of value to the resurgent Red underground? Could Jake Emspak's fee be traced back to Peiping, new headquarters for the Comintern? But not even the most skilled commentator could adequately sustain innuendo on innuendo alone. Not by the grossest distortion of facts could any Communist connection be twisted out of Tony's record of juvenile delinquency, pimping, pick-pocketing, petty thievery, dope peddling, armed robbery, and—since the grain and sugar restrictions of '70—bootlegging.

But one of the more perceptive reporters had noted Tony's strangely quiet manner of speaking. Inquiries at the jail disclosed that Tony had apparently developed an interest in reading.

Here, indeed, was a fresh angle! By mid-afternoon, "Gentleman Tony" had been conceived and given birth. His sordid record was reinterpreted in a picaresque light, and he became something of a Tenth Avenue Robin Hood. A nation squeezed between the twin problems of mounting population and tighter food rationing took "Gentleman Tony" to its fancy. It was like a case of 24-hour flu.

In the midst of all this, as Jake Emspak sat in his office Sunday morning, behind a mound of microfilmed court records dating back to the mid-fifties, he received a more serious-minded interviewer. The visitor was John O. Callihan, well-publicized sportsman, art connoisseur, world traveler and No. 1 man in the Syndicate. His mistresses, and a few old friends like Jake Emspak, called him Johnno.

"Greetings, Jake," he said, easing his athletic, tastefully dressed frame into the chair in front of Jake's desk.

"Hello, Johnno," Jake rasped. "I'm busy."

"I know. That's why I came."

"I can't talk about this case, Johnno."

"I'm not asking you to."

Johnno lit a long, pencil-thin cigarette, and continued reflectively:

"Jake, I've given you some big cases, paid you well—and always let you handle them clean, in your own way. Right?"

"Right enough."

"This is the first time I've ever come for a favor, Jake."

"Yeah?"

"Who's paying for Tony Corfino?"

"Nobody you have to worry about, Johnno."

"No other Syndicate—or anything like that?"

Jake shook his head, and his caller stood up.

"Thanks, Jake."

"Now, will you get the hell out of here!"

"Sure, Jake—give my love to Marge."

Jake lowered his head to hide the mist in his eyes. Johnno had sent a simple corsage of blue violets to Marge's funeral. And he sent one every year, on the anniversary of her death.

Jake went back to Gould v. Gould, 243 App. Div. 589, and stayed with it until nearly six o'clock, when he turned wearily to People v. Gibbs. This looked like an interminable case, even on microfilm. His eyes were strained from staring at the viewer screen, and his big hand was stiff from spinning the reel crank. He opened his fingers, and the knuckles cracked. Jake stared disgustedly at them. You could take a boy out of the coal mines, but not the coal mines out of the boy. His hand was too big for such a small crank. Someday, he'd have to buy an automatic viewer, or even one of those electronic brains they demonstrated at the last Bar Association meeting. But then, he wouldn't need anything after this case. And besides, he didn't trust such impersonal help. Leibowitz had taught him a good lawyer should do his own preparation. Leibowitz! The Vera Stretz case.... That was forty years ago! Jake shook his head to chase away the memories, and started People v. Gibbs, patiently searching for points of law to help him prove that a punk named Tony Corfino....

When court reconvened on Monday morning, the weekend's publicity showed its results. A bailiff whispered to Jake that people had been waiting for the doors to open since five A.M. Thousands had gone home disappointed. The fortunate who did get seats filled the courtroom with babble and shrillness as they waited impatiently for something to happen. A new note of excitement sounded when Tony Corfino walked in beside a Sheriff's Deputy. Jake had insisted that Tony be carefully groomed and dressed each morning before coming into court, and the women among the spectators buzzed with appreciation.

Promptly at ten, Judge Hayward stepped out of his chambers and looked, gimlet-eyed, over the courtroom. The hubub quieted, then faded to stillness. Jake was glad to have Judge Hayward on this case. At forty-seven, he was the youngest Superior Court judge and least wedded to precedent. He was impatient with legal sleight-of-hand, painstakingly insistent on a structure of evidence. "Any mule can kick a barn down; it takes a good carpenter to build one," he had once told Jake.

Selection of the jury proceeded at a creeping pace, which court reporters had come to expect with both the D.A. and Jake Emspak in the same courtroom. In their last clash, they had meticulously examined one hundred and fifty jurors before accepting twelve. But this time, the District Attorney was responsible for most of the delay. Not knowing why Jake had taken the case, the D.A. proceeded nervously and cautiously in questioning each juror: What is your feeling about capital punishment? Would you credit the testimony of an eye witness? Do you believe that a criminal must be punished as decreed by law?

Jake's questions were fewer, and less orthodox. Sometimes he asked: "What is your attitude toward science?" Or, again: "Are you a religious man?" But most frequently he came without preamble to what seemed to be the key to his case:

"What is a man?"

And while this went on in the courtroom, Jake continued his tireless preparations. Research, subpoenas, talking to witnesses, taking depositions, then more research and more subpoenas. Bound the case on the east, the north, the south and the west. Lincoln had said that. Jake's stomach rebelled, and he took to eating a bowl of baby cereal before going to bed in an effort to still its growling and grumbling. Those who knew how hard he worked continued to ask: Where's the money coming from? Why is this important anyway?

Whenever speculation started to sag, Jake shrewdly needled it by leaking a fact here, a rumor there. From Los Angeles, the ebullient old television commentator, George Putnam, still indefatigable in his late sixties, reported that a noted brain surgeon had been subpoenaed to testify at the Corfino trial. In New York, Ed Murrow asked the probing, provocative question: Why has Jake Emspak personally invited one of our great religious philosophers to appear as a defense witness?

"I suggest," hinted Murrow, "that you won't find the gold in this case by panning the mainstream. Or, as Plato said...."

The D.A. and his deputies sat up half the night studying an air-check of the Murrow broadcast.

By the close of the fourth day, selection of the jury had been completed and the trial was ready to begin. That evening, Jake worked on his notes until ten o'clock, and then went out for his customary walk through the memories and quiet of Central Park. As he paused at a crosswalk to watch a satellite platform sweep like a new planet across the sky, a long, black car drifted silently to a stop beside him.

The door swung open, and the District Attorney's tired voice said,

"Get in, Jake."

Jake got in, and neither of them spoke for awhile.

"Couldn't sleep," the D.A. said finally. "Can't even sleep with them damn pills anymore."

Jake didn't say anything. He stared at the back of the chauffeur in front of them. What could you say when an old friend was wearing out?

"Look, Jake," the D.A. continued, "do you really mean this is your last case?"

"You know I do."

"Then, how about a deal—You cop a plea, and Tony gets off with life...."

"Why, Emmett?"

"I don't want to see you wind up this way, Jake—losing a penny-ante case like this!"

"You know how I feel about this case."

"No deal, then?"

"No deal."

The D.A. wheezed angrily:

"Then I'm going to whip you, Jake—and that punk's going to burn!"

Jake didn't answer, and they drove slowly along the endless, winding roads of Central Park. The tires of the great car murmured over the pavement like a boat in the ripples of a lake, and the silent motor gave them a sensation of floating through the night.

Anger still fired the D.A.'s voice when he made his opening address to the jury. His final words were brutally to the point:

"We've all heard rumors about what the defense may or may not attempt to prove in this trial, but let us not forget that in the law of our land there is no place for medical quacks, parole panderers or all the bleeding hearts who drip sympathy for a killer like Tony Corfino! The chair is the only thing he and others like him will ever understand!"

The courtroom stilled to breathlessness as Jake Emspak stepped forward to deliver his own opening remarks. He moved, then paused, with a great dramatist's sense of timing. Ghosts of a thousand courtrooms and fifty years of practice moved and paused with him. Impeccably dressed, his long silver hair artfully disheveled, he folded his blue-veined hands over the gold head of his cane and swayed for a moment in silence, thoughtfully contemplating the jurors. When he spoke, his voice had a quality of remoteness that was peculiarly compelling:

"I would like," he began, "to quote from a Supreme Court Justice who died before some of you were born. It was Benjamin Cardoza who said—'Law in its deepest aspects is one with the humanities and with all the things by which humanity is uplifted and inspired. Law is not a cadaver, but a spirit; not a finality, but a process of becoming; not a clog in the fullness of life, but an outlet and a means thereto; not a game but a sacrament'...."

He waited fully a half-minute before continuing, and not a person in the courtroom stirred.

"The defense," Jake went on quietly, "will rest its case on two major points:

"First, we will prove that the law has not kept pace with the progress of science and the forward march of human thought.

"Second ..." here Jake paused again, while he looked slowly from the jurors, to the judge and finally to the District Attorney. "Second," he continued, with a ghost of a smile on his thin lips, "we will prove that Tony Corfino is not Tony Corfino!"

Jake stood for a moment in silence. Then, with a slight, almost curt nod of his head, he turned away and walked back to his seat beside Tony Corfino. Tony stared at him wordlessly, with a look in his eyes that Jake had not yet fathomed.

The courtroom exploded into bedlam. Judge Hayward gaveled peremptorily for silence, and motioned to the District Attorney to begin presentation of the People's case.

If the D.A. was puzzled by Jake's opening remarks, he gave no sign of it. His marshalling of the evidence was grimly efficient. There was a quality of the inexorable about the way he moved up his witnesses one by one. It was like the maneuvering of a skilled boxer who seeks to take his opponent out, not with one punch, but with a carefully executed combination of punches.

Tony Corfino was not Tony Corfino? The D.A. smiled sardonically as he pointed to the pale defendant and asked the witness to identify him.

"And is this the man who entered the bank on the morning of last October 17?"

"Yes, it is," replied the nervous, overly plump young woman.

"Were you in a position to observe him closely at all times?"

"Yes."

"Where were you?"

"In—in the Note Window ... right next to where he—he came up and pointed his gun."

"Thank you."

With elaborate courtesy, the D.A. turned to Jake:

"Does the distinguished defense counsel desire to cross-examine this witness?"

Jake nodded gravely, and advanced toward the witness stand. The young woman watched him apprehensively. In the TV booth, the regular court reporters leaned forward with anticipation. Many a time had they seen Jake Emspak take the most positive witness and reduce him to a quivering, stuttering symbol of uncertainty. "Show me an eye witness," Jake had once observed, "and I'll show you a liar."

Now, as Jake began, there was a note of friendliness in his voice:

"You say this is the man who entered the bank on the morning of last October 17?"

"Yes—yes, sir.... It is!"

Jake nodded understandingly.

"Suppose," he continued, "we look at it another way for a moment: Is the man who entered the bank on the morning of last October 17 the same man who now appears as defendant in this trial?"

The young woman bit her lip, smearing some of the lipstick on her large front teeth. She hesitated, thinking through the question, then nodded firmly.

"Yes—of course!"

"How do you know?"

"Why—he—he looks the same!"

"Exactly the same? I suggest you look him over carefully before you answer."

The young woman stared at Tony, then dropped her eyes in confusion.

"Exactly the same?" Jake pressed.

"Well ... I'm ... I'm not sure...."

Jake teetered on the point of his cane, thoughtfully contemplating the now flustered witness. Then, unexpectedly, he turned to Judge Hayward and said,

"No further questions, your Honor."

The D.A. blinked in surprise. It was not like Jake to stop once he had a witness in full retreat. The court reporters looked at each other disappointedly. Maybe the old man should retire!

Jake continued to treat prosecution witnesses with similar restraint. He would lead them up to the brink of uncertainty, then leave them there. As a result, the District Attorney was able to complete presentation of his case by the middle of the second morning.

"The People rest," he announced, with grim satisfaction.

Jake Emspak's first defense witness was a youthful looking man of about forty who quickly identified himself as a well-known authority on fingerprints, an expert who had many times been called to assist the police in major criminal cases.

"Is it not true," Jake began, "that in the tradition of modern law, fingerprints are regarded as the most positive method of identification?"

"That is correct."

From a mass of data on his desk, Jake extracted a single sheet of photostatic copy and handed it to Judge Hayward.

"I have here," he said, "a certified copy of one Tony Corfino's fingerprints—taken at the time of his arrest and conviction five years ago on a charge of Grand Theft, Auto...."

The Judge accepted the photostat and handed it to the clerk for entry into the record. Jake then retrieved it, and gave it to his witness.

"Now, Sir," he went on, "will you please take the defendant's fingerprints and compare them to this photostatic copy."

The jurors craned forward curiously as the fingerprint expert opened his kit and went methodically about the business of fingerprinting Tony Corfino. When he had finished, and returned to the witness stand with the new prints, Jake Emspak demanded:

"Is there any similarity between those fingerprints and the fingerprints of one Tony Corfino?"

The expert looked from one set of prints to the other, and quickly replied:

"There can be absolutely no doubt about it—these are not the same prints."

Red-faced with anger, the District Attorney heaved himself to his feet and strode toward the bench.

"Objection, your Honor!" he stormed. "This is the most outrageous deception I have ever witnessed in a courtroom. Frankly, I am astounded that opposing counsel would stoop to such tactics!"

Judge Hayward's voice had the bite of steel drill as he directed:

"Will you please explain to the Court exactly what you mean?"

"It's a matter of record," the D.A. snapped, "that the defendant was seriously injured in the accident that resulted in his capture. Massive burns were part of his injuries.... Bone and skin grafts were necessary to repair the damage to his hands—as well as to other parts of his body. Naturally, his fingerprints would be different! The Defense Counsel knows that!"

Jake smiled, and replied mildly:

"Of course the Defense Counsel knows that, and will certainly make the full extent of the defendant's injuries a part of the trial record. However, I have called this particular witness to show that Tony Corfino cannot be identified as Tony Corfino by what is still regarded as the most infallible method of criminal identification."

"Your Honor," retorted the D.A., "This so-called testimony is totally irrelevant and immaterial. I request that it be stricken from the record!"

"It is most relevant to our case," Jake shot back. "Furthermore, the Defense will prove that Tony Corfino cannot be identified as Tony Corfino by any known method of criminal identification!"

Judge Hayward's eyes narrowed speculatively. He thought the matter over for a moment before stating, with unconcealed interest:

"This may well be a legal situation without precedent. The Court will withhold ruling on the objection for the time being."

The next defense witness was a specialist on agglutination of the blood.

"Agglutination," he explained, adjusting his glasses pedantically, "is a biological reaction consisting of the mutual adhesion of the red corpuscles. It is also a method of establishing individualization of blood."

"I see," said Jake. "Now, tell us—how has this method been used to establish identification in a criminal case?"

"It is sometimes used where the victim's blood leaves stains on the murderer's clothing—as well as the victim's own clothing. If both blood stains produce the same biological reaction, the murderer is either guilty—or has a great deal of explaining to do!"

Jake meticulously selected another exhibit from the material on his desk.

"Will you identify this, please?"

"It is a piece of cotton stained with the blood of this—this defendant."

"When was it stained?"

"In the test I made last week."

"Did you compare it with the stains on garments worn by a certain Tony Corfino at the time of his accident?"

"I did."

"What did you find?"

"The two samples were entirely different?"

"Could we assume, then, that the blood of a man known as Tony Corfino does not flow through the veins of this defendant, who also bears the name of Tony Corfino?"

The witness rubbed his hand thoughtfully over the high, polished dome of his forehead.

"You could put it that way," he conceded.

With the skill of a symphony conductor calling upon the diverse instruments under his baton, Jake Emspak continued to bring forward a bewildering variety of witnesses to prove that in the identifiable details of his physiology, Tony Corfino indeed was not Tony Corfino. The D.A. watched in furious silence. Once, when Jake passed near him, he muttered:

"This is contemptible!"

Imperturbably, Jake turned back to the witness stand, where a radiographer from Scripps Institute was taking the oath. Patiently, he led the witness through a description of how the radiographies of the nasal accessory sinuses and mastoid processes could be used to establish the identity of an individual. Jake then produced medical records from a juvenile correctional institution in eastern Pennsylvania, where Tony Corfino had sojourned during his seventeenth year. Comparison with recent hospital records showed a striking difference between the two radiographies.

The opthalmologic method of Capdevielle was next explored by Jake to show that the eyes of Tony Corfino were not the eyes of Tony Corfino. The technique of Tamassia and Ameuille was employed to prove the same point about Tony's veins. The umbilicial method of Bert and Vianny intrigued the courtroom and TV audience with structural dissimilarities of Tony's navel. By means of projection on a large screen, Jake demonstrated to the jurors and Judge Hayward that Tony Corfino, defendant, had an entirely different electrocardiagram from the Tony Corfino whose crushed body had been pulled, more dead than alive, from the wreckage of a burning automobile.

Late that afternoon, Ed Murrow commented to his news audience in the cadence that had been his trademark for more than forty years:

"We know not yet where this trial is taking us, though Jake Emspak is beginning to show the direction. Perhaps, we, too, could ask ourselves the question: What is a man?"

Less philosophically, a space-weary young captain, sending in his nightly report from the satellite station, Vanguard VI, queried:

"If this Tony Corfino isn't Tony Corfino, who or what in the hell is he?"

Part of the answer to this question was on display the next morning when the jury filed into Judge Hayward's courtroom. Before them, and angled toward the TV cameras, was a chart nearly eight feet tall. It showed, in outline, the figure of a man. The figure was covered with small black dots, each bearing a white number. In all, there was seventy-two dots.

As soon as court was in session, Jake called a short, squarely-built man of about fifty to the stand. There was a bulldog set to his jaw and mouth. He identified himself as Dr. Theodore Clendenning, Chief of Staff at City Hospital.

"Dr. Clendenning," said Jake, "I assume you are familiar with the medical and surgical care received by the defendant at your hospital?"

"Quite familiar," the doctor retorted, impatiently.

"Then, may I direct your attention to this chart. It indicates areas in which artificial parts were used to replace the damaged or destroyed natural parts of a certain Tony Corfino's body. Will you name them, please, as I point them out with my cane."

Tapping the chart like a school-teacher signalling for the attention of his pupils, Jake Emspak started at the outline of the head.

"Vitallium skull plate," snapped Dr. Clendenning.

Jake's cane touched the nose.

"Vitallium nose plate."

Swiftly, the tip of the cane moved around the outline of the body, pausing only long enough for the doctor to name each part:

"Plastic tear duct ... vitallium jaw bone and implanted dentures ... paraffin and plastic sponge to fill chest after removal of lung ... plastic esophagus ... tantalum breast plate ... tantalum mesh to patch chest wall ... vitallium shoulder socket rim and shoulder joint bone ... vitallium elbow joint, radius bone, ulna bone, wrist bone, finger joint ... spinal fusion plate ... vitallium blood vessel tubes."

Jake put down his cane, and turned conversationally toward the doctor.

"Dr. Clendenning, is it true that this Tony Corfino's reproductive organs were destroyed in the accident?"

"Virtually so."

"And is it not also true that the defendant in this case is now capable of becoming a parent?"

Dr. Clendenning glanced at his watch and sighed.

"What you are referring to," he answered, "has been rather elementary surgery for the past ten years."

"But the children of Tony Corfino would not then be the children of Tony Corfino?"

Dr. Clendenning looked toward Judge Hayward with a pained expression. Receiving no sign of any kind from the Judge, he turned back to Jake Emspak.

"I have given you the medical data," he said angrily. "You can draw your own conclusions."

Jake nodded, and replied with emphasis:

"I am sure this Court and the Jury will do just that."

He studied the chart for a moment, then tapped the outline figure in the area of the eyes.

"Tell us, Dr. Clendenning, what did your staff do about Tony Corfino's eyes? I understand the flames had reached them."

"Cornea transplants were necessary."

"And where did you obtain the corneas?"

"Mr. Emspak—I'm sure you know that most people nowadays will their eyes to the Cornea Bank!"

"Can you tell us anything about the corneas that were transplanted in Tony Corfino's eyes? From what type a person did they come?"

"I'd rather not answer that?"

Jake turned to the Judge.

"Your Honor, unless there is a legal reason why the good doctor should not answer, I ask the Court to direct that he do so."

Judge Hayward hesitated, then directed the witness to answer.

"They came from the eyes of a priest," growled the doctor.

Jake Emspak raised his cane to the chart once again, then apparently changed his mind and lowered it.

"Dr. Clendenning," he asked quietly, "am I correct in believing that the construction of parts for the human body is now an important industry?"

"That's right," the doctor said grudgingly. "It's grown tremendously in the past twenty years—from a $160-million-a-year business in 1957 to nearly a billion today...."

"One further question, if you please, Doctor," said Jake. "What is your definition of a man?"

The doctor thought for a moment, and smiled coldly.

"I'm afraid it would not assist your case," he replied.

"We are only looking for some basic truths."

Dr. Clendenning bunched his square shoulders and leaned forward aggressively.

"I can think of no better definition," he snapped, "than one given by a distinguished physician in the earlier years of this century. He defined the human body as an animal organism, differing in only a few respects from other animal organisms, and fitted for the performance of two main functions: The conversion of food and air into energy and tissue; and the reproduction of other individuals of its species!"

So coldly, with such an air of finality did he speak, that his words brought an audible gasp from two women in the jury box. Jake Emspak remained impassive.

"And this is all you see in a man?" he prodded gently.

The doctor's jaw set stubbornly.

"As a philosopher," he retorted, "I may engage in some speculation in the company of Plato, Schopenhauer or the Archbishop of Canterbury, but my speculations would themselves be based upon speculations and not upon any scientific data resembling observed facts!"

"Then, from your point of view, the defendant in this courtroom is not the Tony Corfino—the same man—whose broken body was brought into your hospital eight months ago?"

"Obviously not."

"Thank you, Doctor."

Jake walked slowly from the witness stand to the jury box, and then back to the bench.

"Perhaps," he said softly, "a ten-minute recess would be in order...."

Judge Hayward drew a long breath, exhaled and nodded. With the sound of his gavel, tension ran out of the courtroom like water from a punctured barrel.

When court reconvened, Jake began bringing to the witness stand a parade of educators, religious leaders and philosophers who kept the courtroom alternately fascinated and bewildered for the next two days. They came from London, Rome, Johannesburg, Philadelphia, Tokyo and Chicago. They came from every oasis of learning where men could still find profit in thought, without relating the profit to the cash register or the thought of technology. They spoke in words and symbols that sometimes soared beyond space itself, and left the world's TV audience groping for stability in earthbound cliches. The paradox was incredible: All this thinking, all this culture—all of everything brought into a courtroom to defend a bush-league hoodlum. Reporters ceased to ask who was paying for this display; they simply marveled at the pyrotechnics. Through it all, Jake Emspak moved deftly, surely, extracting from each witness the pure essence of relevant thought:

Man is a creature destined to live in two worlds. He is surrounded first by the realities of this world—and he is called to live with eternal realities that transcend this world....

The human person is a body, and therefore subject to the laws of matter, to spatiality, temporality and opacity. As such, he is a meeting place for passing forces, a crossroads of contacts and reactions. But the human person is also a spirit, that is to say a reality that transcends apparent reality. There is within him the wakened or nascent ability to comprehend space and surpass time....

The human self is an object, of a sort—and, as such, can be described as the empiricists have described us. But the human self is also, and more essentially, a subject, which never appears to the view of others or even to the most determined introspection. The self as object is finite, but the self as subject touches the infinite; it is the meeting place of time and eternity, of man and God....

For all its advances, the 20th century is still a child of the 19th, when the impact of the developing sciences of physics and biology produced a change in the concept of nature and Man's place in it. From Malthus and Darwin, Spencer and Feuerbach, Vogt, Buchner, Czolbe and Haeckel evolved a reductive naturalism in which the spiritual quality of man is ruled out and he becomes a unique emergent of a blind natural process—a creature who must make of nature what he can....

The next five million years of evolution will be in the human brain, where Man must ultimately be defined. Until Man appeared, evolution strove only to produce an organ, the brain, in a body capable of protecting it, and carrying out its will. The ancestors of Man were irresponsible actors playing parts in a play they did not understand. Man continues to play his part but wants to understand the play....

Man is a blending of the rational and intuitive processes. Ethical conclusions reached by logical thinking were attained several thousand years ago by the religions, which proves that man's rational processes are strangely slower than his intuitive processes....

Jurors shifted impatiently in their seats, yet their attention would inexorably be drawn back to the witness stand. Courtroom spectators, who had come to be titillated by the sensational, stayed to grope with concepts they could not understand. The TV audience, spoon-fed for so many decades, tried doggedly to chew and digest adult foodstuffs. Sets were turned off in anger or despair—and then turned back on again.

"What is a man?"

The pivotal nature of this question became steadily more evident.

If Tony Corfino was not Tony Corfino, was he then not more of the real personality, the human entity, than the original Tony had ever been.

"In restoring the damaged areas of the brain," a surgeon testified under Jake's skillful prodding, "we thought it wise to perform a lobotomy at the same time, thereby relieving anti-social tensions and pressures."

(The body is at once a means of expression for the soul, and a veil; it reveals and it hides....)

"During the convalescent period," a consulting specialist informed the courtroom, "we recommended treatment with sodium dilantin and electroshock therapy, thereby producing a change in this patient's electroencephalograph."

(The body presents all the problems of matter: It is a limitation, a weight, a force. It seems almost a miracle when it is overcome, penetrated and ordered by thought and spirit....)

"Subsequently," the psychiatrist stated, "this patient underwent extensive therapy, aided frequently by hypnosis and sodium pentathol. His respiratory, vascular and circulatory systems began to show increasing stability."

(Released from its warped framework, brought into balance with instincts inherited from our animal ancestors, the body becomes, in a way, an image of the soul, a sign conveying something of our personal mystery....)

And then Jake called the hospital Administrator to the stand. Speaking with great deliberation, so that each word registered, Jake asked:

"Is this type of medical care ordinarily given to a prisoner-patient?"

"The type of care depends upon the case, Mr. Emspak. In a case such as this, I would regard the treatment as routine. You see, in the past decade our approach to any patient has become one of total therapy...."

"And in the case of a prisoner, what do you do when the therapy is completed?"

The Administrator looked surprised.

"Why, we return him to jail—in accordance with the law."

Jake Emspak stood in silence, contemplatively staring down at the blue veins on the back of his hands. At length, he announced:

"Your Honor, the Defense will conclude tomorrow morning, after one more witness—a man who goes by the name of Tony Corfino...."

The sweat on the pale, polished skin of Tony's forehead stood out like drops of summer rain; they seemed to have fallen there rather than seeped out through the pores.

A polygraph lie detector had been set up under Jake's direction and wheeled close to the witness stand. A technician opened the front of Tony's shirt and made fast the pneumograph tube with the aid of a beaded chain. Next, a blood-pressure cuff, of the type used by physicians, was fasted around Tony's right arm. A set of electrodes was attached to the palmar and dorsal surfaces of the hand of the other arm. The recorder showing the graph lines had been specially constructed so as to be visible throughout the courtroom, and to the television cameras.

The technician had already been on the stand to explain the simplified and easily read graph lines of the modern polygraph: A shallow breathing line denoting suppression; a heavy breath line denoting relief; the respiratory block, fast pulse and slow pulse lines; the rise in blood pressure tracing.... It was all there on the screen—the emotional picture of a man testifying at his own trial for murder.

"Objection, your Honor!" shouted the D.A. for the tenth time that morning. "This procedure is definitely irregular and immaterial! Defense Counsel has been making a mockery of the Court for days, but now he has stepped completely out of line!"

Jake clucked soothingly.

"What," he inquired, "is irregular or immaterial about a defendant voluntarily taking a lie detector test? I believe that I have heard the District Attorney challenge clients of mine to do so on several occasions! Now, we are merely permitting the Court and the Jury to view the test in progress...."

Once again, the Judge withheld his ruling, and the D.A. sagged dejectedly in his chair. The strain of the last few days—sitting in the courtroom and listening to witnesses he knew not how or why to cross-examine—had taken its toll. His eyes were bloodshot, and fits of wheezing seized him spasmodically, but the set of his jaw was still unyielding. Jake grieved for him.

Tony Corfino's reactions, as he sat in the witness chair watching the final preparations, would be difficult to catalogue. He looked both aloof and nervously concerned. His curly black hair was damp from the way he constantly brushed the sweat back off his forehead; his puffy lips seemed in constant need of moistening. But his hands were folded quietly in his lap. He seemed to Jake like a man lost to the past, adrift in the present and unrelated to the future.

"Will you give us your name, please?" Jake asked casually.

"Tony Corfino."

"Where were you born?"

"I ain't—I'm not sure.... On the West Side, I suppose...."

On the recorder over Tony's head, the graph lines rippled in smooth patterns.

Suddenly changing his manner, Jake rasped:

"Have you ever committed a crime?"

Tony frowned in bewilderment.

"I know that I have, but sometimes.... Well, I kinda wonder...."

"Do you remember what happened last October 17?"

"You mean the bank ... the shootin'?"

"That's right."

"I've read so much—heard so much talk—that I ain't sure just what I remember...."

Tony's eyes—or the eyes of the dead priest through which Tony had vision—reflected his torment. Jake moved around so that Tony would be facing the jury when he answered the next question.

"Tony," directed Jake, "think about this question before you answer it: Are you the man who tried to rob that bank—then got excited and killed two people?"

Jake knew this question was the one element of gamble in his entire case. The way it was answered could be a summation or refutation of all the evidence and testimony he had so painstakingly assembled.

The jury sensed this, too. So did Judge Hayward. His keen eyes flickered alertly from the defendant's face to the lines on the polygraph recorder.

Now Tony's hands were no longer folded quietly in his lap. They were locked together, and the new veins in his wrists stood out under the new skin. His lips worked silently as he groped for words.

And then the words burst into an anguished outcry:

"No! I couldn't!..."

The polygraph lines leaped into jagged peaks. Blood pressure, respiratory block, pulse and breathing—all climbed and dropped wildly, recording their damning message for the world to see.

The D.A.'s lips twisted in a mirthless smile of triumph. Up in the TV booth, reporters sputtered, split infinitives and shattered syntax in frantic efforts to describe and interpret what had happened.

Jake Emspak stood and waited, a sear and wrinkled leaf hanging motionless in the wind.

(If the self is merely a node in a complex casual series, if self is solely energized and motivated by the sovereign need of survival and security, then the idea of a bridge between Man and the infinite is a pious illusion....)

Tony Corfino stared down at his twisted hands, and slowly they unlocked. He looked up at Jake, and the doubt and fear and bewilderment were gone at last from his eyes.

"That ain't so," he said quietly. "I did it ... I know I did it ... an' I know it was wrong ... I deserve the chair!"

(Thus Man escapes himself in freedom, and is therefore never a fully predictable or manipulatable object—only a window through which we peer with blind eyes into the reaches of the universe....)

The District Attorney's summary to the jury was a model of legal craftsmanship. Boldly disregarding the broader issues raised by Jake, he hewed firmly to the line of criminal responsibility and punishment.

Point by point he reviewed the facts of the crime. Witness by witness he retraced the eye-witness testimony. He produced photographs of Tony's body being loaded from the wreckage of the car into the ambulance, and from the ambulance into the prison ward of City Hospital. He proved beyond any reasonable doubt that Tony had never been out of custody from the moment of his apprehension.

"Even the defendant admits to his responsibility for the crime," the D.A. continued coldly.

Only in his concluding remarks did the District Attorney make reference to the defense presented by Jake Emspak.

"I wonder," he asked, smiling for the first time, "if any of you tried—as I did—to carry through to its ultimate conclusion the line of reasoning presented with such detail and admitted virtuosity by the defendant's counsel? If the fabricating of replacement parts for the human body has already become a billion dollar industry, if psychiatry continues to achieve new miracles, how many people in this world could now—or in the near future—seek to escape their responsibilities by taking refuge in the argument that they were no longer themselves? At what point would we draw the line? If fifty-percent of a man's body has been replaced is he neither himself nor a new person? If fifty-one has been replaced, is he no longer the husband of his wife or the father of his children? Can he then walk blithely away from his responsibilities, proclaiming 'I am a new man'?"

A titter went through the courtroom. Judge Hayward gavelled immediately for silence, but the D.A. winked at the TV cameras. His point had been well made.

When Jake Emspak stepped up to the jury box to deliver his own final plea, he promptly picked up the challenge.

"I have known the District Attorney too well, for too many years," he said, "to believe that he has considered only the superficial aspects of this case. If you should find the defendant guilty, I am sure he would be the last to oppose consideration of all the matters I have raised in the determination of a just sentence.

"And I grant you that if a verdict of guilty is reached, the letter of the law will be fulfilled, and an eye for an eye can be paid.

"Likewise, if the verdict is not guilty, the letter of the law most unquestionably will be violated—but its spirit will be vindicated!

"I am asking you to take a bold step, across a new frontier.... Yes, down through the ages, law has become a living, meaningful instrument of human dignity because—at each crossroad of decision—men and women were not afraid to depart from precedent!"

Oldtimers in the court had never before heard Jake Emspak summarize a case in such dispassionate, objective tones. Usually, his voice and argument ranged the gamut of emotional and semantic appeals, plucking at each member of the jury like the strings of a harp. Today, he seemed to be making an effort to hold himself in check.

"This is the trial of a living man for the crime of a man who no longer exists," Jake continued quietly. "Science destroyed that man—completely and with absolute finality! In his place is a man with a new body, new thoughts, new blood and new reproductive capacity. The fact that this new man can be brought to trial violates justice in its deepest and truest meaning! It points inescapably to the fact that the law must be revised to bring it up to date with present reality...."

Jake paused and was silent for so long that he appeared to have forgotten his surroundings. When he finally continued, his voice was so soft that the jurors unconsciously leaned forward to catch his words:

"There is still another dimension to this case—one that transcends science ... and the law. It is one I approached with great uncertainty, because it leads down a path I am walking for the first time....

"Some of the testimony brought out in this trial may not have been new to all of you, though it was new to me. Perhaps you have all formed your own conclusions with regard to the relationship between the spirit or soul of Man, and his outer shell ... the house in which man lives. But if this house becomes a prison for the real man, and science releases him to live in a new dwelling, then did the man ever actually exist until his release? And if the man who lives now did not exist at the time of the crime for which he is tried, can he then be judged guilty?

"Ladies and gentlemen of the jury—we await your answer."

Twilight faded, and across Central Park the skyline of the city changed from steel and concrete to a gossamer web of light and shadow. Jake Emspak sat in peace by his window, the fingers of his right hand resting gently on the gold frame of his wife's picture. He touched a button on the arm of his chair, and in a moment Ed Murrow's features came into focus on the wall-screen.

"The jury in the Corfino case is now locked up for the night," Murrow began, his 80-year-old voice more vibrantly alive than ever. "Tomorrow we may—and very likely will—have a verdict.

"But whatever the verdict, this case has served an epochal purpose—to our time as well as to the law. We have paused for an instant in our frantic drive for technological advancement to ponder the essential meaning of man—and the worth of the human entity.

"It may take years to evaluate and appreciate all of the complex testimony Jake Emspak put into the trial record, for each of us will see in it only what we want to see or are capable of seeing....

"But we may be assured that in the generations to come this case will be footnoted throughout the opening worlds of space by serious students of the law, the sciences and the humanities.

"For tonight, it should suffice to say: Thank you, Jake Emspak—Well done!"

Jake touched the button again, and the screen went dark. Between old friends, there was much that words left unsaid.

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The Project Gutenberg eBook of A Question of Identity, by Frank Riley

A QUESTION OF IDENTITY

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