This post was inspired by some questions in the comments on the last mailbag post. There was some disagreement in the comments regarding the facts, but after reviewing the episode I think it’s arguable that each party was threatening the other, so we’ll consider it from both angles. Now, on to the questions (and the spoilers).
I. The Setup
For those who haven’t or don’t plan to see the episode (it’s available on Hulu), the facts are pretty straightforward. The mayor’s son is being treated by a psychiatrist, who at first generally entertains the son’s theory regarding the town being cursed, apparently as a window into the child’s psyche. The mayor wants the psychiatrist to disabuse him of this notion, but when he does so the child runs away.
After the psychiatrist rescues the child, he decides to go back to his earlier method of treatment, which the mayor is unhappy with. The mayor threatens to have him fired. The psychiatrist counters that the mayor may soon find herself in a custody dispute regarding the child and that he will likely be called to testify regarding her fitness as a parent. The implication is that if she interferes with his treatment or has him fired then his testimony will not be positive, though it is not entirely clear whether his testimony would be honest or changed out of spite. The episode ends with the psychiatrist apparently able to return to his old methods.
The first question is: “Is this blackmail? Does the fact that there is no hearing planned yet change the answer?”
Blackmail is typically synonymous with extortion, which is the term used in most criminal codes. Maine defines theft by extortion thus:
“A person is guilty of theft if the person obtains or exercises control over the property of another as a result of extortion and with intent to deprive the other person of the property.” 17 A.M.R.S.A. § 355(1).
In a sense this answers the question regardless of who was doing the threatening. Neither the mayor nor the psychiatrist were trying to obtain or exercise control over the other’s property, so neither could be guilty of extortion. If the mayor had been trying to get free treatment that might qualify as theft of services under § 357, but simply trying to control the method of treatment likely doesn’t qualify as a kind of theft.
That doesn’t mean the psychiatrist is necessarily off the hook, however. He could be guilty of improper influence under § 603:
1. A person is guilty of improper influence if he:
A. Threatens any harm to a public servant, party official or voter with the purpose of influencing his action, decision, opinion, recommendation, nomination, vote or other exercise of discretion;
2. “Harm” means any disadvantage or injury, pecuniary or otherwise, including disadvantage or injury to any other person or entity in whose welfare the public servant, party official or voter is interested.
The mayor describes the psychiatrist as “an employee” and suggests that she has the power to have him fired, which would be an “action, decision, recommendation, or other exercise of discretion.” If the psychiatrist is implying that he would alter his expert testimony solely in order to disadvantage the mayor, that could qualify as improper influence. If, on the other hand, he’s simply stating that the mayor’s interference in this treatment plan would tend to indicate that she is not a fit parent and his testimony would reflect that, then that would not be improper.
The fact that there’s no hearing planned wouldn’t change the answer, since the crime of improper influence is complete the moment the harm is threatened. Whether the harm ever comes to fruition or even ever could doesn’t matter.
The next question is related to the issue of improper influence: “if he gives the court different testimony solely because he has been fired by one of the parties, is he committing perjury?”
For the answer we have to look to the definition of perjury in Maine, found in § 451.
“1. A person is guilty of perjury if he makes:
A. In any official proceeding, a false material statement under oath or affirmation, or swears or affirms the truth of a material statement previously made, and he does not believe the statement to be true”
A child custody hearing is certainly an official proceeding, the expert’s opinion is a material statement, and he would be under oath, so the issue is whether he would believe the statement to be true or not. As with improper influence, it comes down to whether the psychiatrist honestly regards the mayor as an unfit parent because of her interference in the child’s treatment and threats to have the psychiatrist fired. If he does, then it wouldn’t be perjury. If, on the other hand, he thinks she is actually a fit parent but testifies otherwise out of spite or what-have-you, then it would be perjury.
Of course, good luck to the prosecutor on that one. Absent a smoking gun memo it would be very difficult to prove that the psychiatrist was lying.
IV. Threatening to Fire Someone
The last question is “Is the threat to get him fired itself legal? Does it matter that she’s not his direct employer, so she’d be getting him fired by using influence?”
I’ll admit that her threat is more than a bit sketchy, at least morally-speaking, but it’s not necessarily illegal, particularly if he is an at-will employee. It’s possible that the threat violates some Maine law regarding the firing of public employees. It’s also possible that the psychiatrist is a member of a municipal employees’ union or otherwise has an employment contract (possibly an implied one) that would prevent him from being fired except for good cause. If the mayor had him fired knowing that he could not be fired legitimately, that could support a charge of official oppression:
“1. A person is guilty of official oppression if, being a public servant and acting with the intention to benefit himself or another or to harm another, he knowingly commits an unauthorized act which purports to be an act of his office” § 608.
The psychiatrist would also have a civil wrongful termination claim in that case, of course.
Once Upon a Time continues to be a pretty good show, and we’ll continue to keep an eye on it for legal issues!