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.