Alphas: Pilot

Alphas is the 2011 SyFy series about the X-Men a group of individuals with extraordinary abilities brought on by a poorly-understood “next phase in human evolution. The pilot was last July, and it showcases some of the legal issues we’ve talked about on the site previously. Spoilers within

I. Mind Control and Mens Rea

Mind control is something we’ve talked about previously. The idea we’re interested in here is that crimes usually have two elements: act (actus reus, “guilty act”) and intent (mens rea, “guilty mind”). An intentional act is viewed as being more morally significant than an unintentional one. As Oliver Wendell Holmes, Jr. said, “Even a dog distinguishes between being stumbled over and being kicked.”  Modern criminal law has developed a fairly sophisticated analysis for “degrees” of intent: deliberate, knowing, reckless, and negligent. These are, respectively, an act where the outcome is intended, an act where the outcome is known but not necessarily intended, an act where the risk of a probable outcome is known but ignored, and an act where the risk of a probable outcome is not known but should have been. There are also “strict liability” crimes for which no particular state of mind is required, but these are disfavored and generally limited to things like speeding or other administrative violations. Statutory rape is the main exception there, and some states have even moved away from that.

So in the pilot, when Hicks makes an incredible shot and takes out the federal witness, is that murder? No, it isn’t. Hicks shouldn’t be liable for anything, as he was completely controlled by another person. This is an effective and complete defense to any homicide charge. If he can prove it. The prosecution has the burden of proving the elements of the crime, but the defense has the burden of proving the elements of any defenses, and “I was brainwashed!” is an affirmative defense that Hicks will need to prove. Unfortunately, there are problems for both sides. The prosecution is going to need to convince the jury that Hicks made what appears to be an utterly impossible shot. But in their favor is the fact that it actually happened. Hicks is going to need to convince them that he was being controlled by someone else. That’s going to be a much harder sell. Unless, of course, Dr. Rosen testifies for him, which he’s impliedly threatened not to do if Hicks doesn’t play ball. But isn’t that blackmail?

II. Blackmail

That’s actually an interesting question. It turns out that blackmail is a very difficult jurisprudential concept. What’s the difference between “blackmail” and “driving a hard bargain”? Professor Eugene Volokh blogged about this just last month. The basic problem is that if I threaten to do something that I am legally allowed to do, or threaten not to do something that I am under no obligation to do… why is that illegal? Take the classic example: a threat to reveal that one has been cheating on one’s spouse unless money is paid. Thing is, revealing that one is cheating on one’s spouse is probably legally permissible, especially if one actually is cheating on one’s spouse. This is different from threatening to burn down one’s business unless one pays protection money. There, the threat is to do something illegal, so that’s clearly not okay. But how is threatening to reveal information which one is allowed to reveal unless money is paid any different than, say, threatening to sue unless money is paid? It’s a thorny problem, and Prof. Volokh plausibly suggests that there hasn’t been an entirely satisfactory answer there.

So what’s the threat here? Well, Dr. Rosen seems to threaten that he will not assist Hicks in mounting his mind control defense unless Hicks plays ball. Here’s the Model Penal Code definition, found in section 212.5:

(1) Offense Defined. A person is guilty of criminal coercion if, with purpose unlawfully to restrict another’s freedom of action to his detriment, he threatens to:
(a) commit any criminal offense; or
(b) accuse anyone of a criminal offense; or
(c) expose any secret tending to subject any person to hatred, contempt or ridicule, or to impair hiscredit or business repute; or
(d) take or withhold action as an official, or cause an official to take or withhold action.

Rosen isn’t threatening to do any of those things. Declining to testify in a criminal trial is not, generally speaking, a criminal offense. He would not be accusing Hicks of committing a criminal offense—the authorities already know who did it. He would not be exposing anyone’s secrets. And he is not an official, nor would he be causing an official to take or withhold action. Under the Model Penal Code definition, this isn’t blackmail at all.

Or is it? Might the threat be something more along the lines of “If you don’t help me, I’ll have the prosecutor bring charges.” That still wouldn’t fit (a)-(c), but might be “caus[ing] an official to take . . . action.” Then the question becomes whether Rosen has the “purpose unlawfully to restrict another’s freedom of action.” Here, the answer is probably “Yes,” as he’s getting Hicks to work for him against Hicks’ will. This is generally frowned upon.

So if one were to construe things that way, would Rosen be eligible for any defenses? The MPC has the following to say about defenses to blackmail:

It is an affirmative defense to prosecution based on paragraphs (b), (c) or (d) that the actor believed the accusation or secret to be true or the proposed official action justified and that his purpose was limited to compelling the other to behave in a way reasonably related to the circumstances which were the subject of the accusation, exposure or proposed official action, as by desisting from further misbehavior, making good a wrong done, refraining from taking any action or responsibility for which the actor believes the other disqualified

Note that there is no defense to (a), and we’re not talking about (b) or (c). Is the “proposed official action justified”? Well… Rosen doesn’t believe that, but Hicks is going to have a very, very difficult time proving it. Rosen knows that Hicks did it, and convincing the jury that Rosen knows about the mind control involves Hicks proving the mind control in the first place, something he needs Rosen to do. So we’re left with a situation where even if this is blackmail, Rosen is probably going to be able to establish a defense to any charges, as what Hicks needs to prove the blackmail claim is what he needs to prove his defense to murder in the first place.

Hicks is screwed.

III. Conclusion

So far, Alphas looks pretty interesting. It’s taking a slightly more realistic take on extraordinary abilities than most comic books tend to, and we’ve already seen evidence that the show is going to have a lot to do with how Alphas live in the civilian population without having that be a blatant analog for race or gender orientation issues. That, by itself, shows promise. Discrimination issues are interesting, but it’s an area that other comic books and related media such as the X-Men have covered pretty well. We’ll have to keep watching.

13 responses to “Alphas: Pilot

  1. Wait… IS mind control an affirmative defense? It looks like one, but if intent is an element of the crime, the prosecutor has to prove it exists.

    • Yes, I’m not sure I entirely agree with my co-author’s categorization there. I suppose one could categorize mind control as a kind of insanity or even involuntary intoxication, but I think negating the element of intent or even of voluntary action is the most straightforward way to describe it.

      Thus, the most likely way for the case to proceed would be for the prosecutor to say “it plainly appears that Hicks shot the witness” whereas the defense would say “no, he wasn’t in control of his actions and certainly didn’t intend to shoot the witness.” It’s a defense, but not an affirmative defense.

    • If mind control is a defense, wouldn’t it also be a crime for the controller? Not necessarily that the controller is doing the controlling (mind control to help someone steady their nerves while performing a heart-lung transplant might not be as frowned upon), but that the control led to the commission of a crime. It seems to me that it would be akin to hiring a contract killer. The controller didn’t pull the trigger himself, but he was the one who initiated the chain of events that directly led to the victim’s death. Clearly the hired killer doesn’t have the same defense as the mind-controllee, but the mind-controller should at least be guilty of the same crime as the person placing the hit.

      • Actually the controller might be even more guilty than cases of hiring an assassin. Not only are they forcing someone to be part of a murder (which could easily be a traumatic experience) but they are the person who in some way is sending the signals to the nerves that cause the muscles to move and pull the trigger. In a very real sense the controller is the actual murderer.

  2. It’s a bit of a stretch, but surely a judge is “an official”, and giving or withholding evidence/testimony could cause him “to take or withhold action” (ie, convict or not convict depending on the evidence withheld), so could that be construed as criminal coercion?

    • Can’t a defendant subpoena a witness in a criminal case to force them to testify? If Dr. Rosen didn’t testify truthfully, he’d be guilty of perjury. If Rosen was extremely reluctant to testify (not answering questions fully), couldn’t he be declared a hostile witness and then asked leading questions?

      • Of course, we also have the fact that, even if it is perjury, is it provable? My impression is that, at least so far, very few people know about Alpha powers. Dr. Rosen simply has to lie convincingly. Even if eventually people know about Alpha powers, unless someone’s been gathering evidence about his knowledge, he can likely get away with shrugging and saying, “Hey, I didn’t know about it then.”

  3. Christopher L. Bennett

    “It’s taking a slightly more realistic take on extraordinary abilities than most comic books tend to…”

    And that realism, the focus on subtler powers that didn’t entail any massive violations of physical law or common sense, was what drew me to the show to begin with. Unfortunately it hasn’t quite stuck with that original intention, since the show was taken over by different producers after the pilot. It’s still somewhat more credible than a lot of sci-fi shows and movies, but it’s tossed in some Alpha abilities that really stretch suspension of disbelief.

    On the subject of legal issues raised by the show, I think the most interesting discussion may be when we get to Rosen’s actions in the first-season finale.

    • Well, I think the most interesting legal question was the holding of “dangerous” alphas in the Binghamton facility, apparently with no judicial oversight. The “chip-in-the-head-to-control-superhumans” comes a little too close to Act III of Marvel Ultimate Alliance 2 for my taste… it seems like a high-tech plan for a problem that has a low-tech solution… lobotomy or medically-induced coma, either one should do the job (if we’re too squeamish to just execute them for having dangerous superhuman powers). No, I’m NOT advocating eugenics as a “final solution” to the alpha problem, just pointing out that it WOULD be on the table (A theme well explored in various X-Men iterations).

    • I agree with your assessment, and also agree that it’s still a pretty good show. I hope more people try it.

  4. Can we have examples of deliberate, knowing, reckless, and negligent where the result is the same but the state of mind is different?

    Deliberate: I deliberately shoot you and you die.

    Knowing: I know that shooting you could be fatal but I shoot you anyway without meaning to kill you.

    Reckless: I close my eyes and fire my gun without knowing you are standing in front of me and you die.

    Negligent: I point my gun at you and somebody jumps up and says boo and I fire a shot and kill you.

    Is that about right?

    • That’s pretty close. Your negligence example is close to recklessness, since pointing a gun at someone you can see is a known risk. Let’s add another detail: the shooter thought the safety was on, but it wasn’t, so when they got frightened they fired the gun unexpectedly. The shooter should have known that the safety wasn’t on, so that’s negligence.

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