Student-Authored Post

By Jack Ellis (2L)


Welcome to the inaugural edition of Conspiracies and Creatures in the Courtroom: The X-Files Docket, where we examine the strange cases of the hit TV show from the perspective of the prosecutor who actually has to take them to trial. Today’s episode is “Pusher,” from the epithet of one Robert Patrick Modell, a hitman with a reputation for making it look like his marks end their own lives. As it turns out, Modell has the uncanny ability of supernatural suggestion. If he says jump, you don’t even ask “how high?”, you just do it. Even crazier than that, Modell uses his ability to cause FBI agent Frank Burst (foreshadowing!) to have a heart attack (his heart “burst,” get it?) merely by describing one to him. Over the phone no less. Modell is responsible for several deaths, but surely we, the prosecuting attorney, can get him on killing an FBI agent. Now you may be wondering, how can you prosecute a supernatural ability like that? Well, no mystery gets solved on the first guess. Which brings us to our first section…

Wrong Turns and Red Herrings:
Hypnosis. Is Modell’s ability just really good hypnosis? The episode doesn’t tell us for sure, but what we do know is that there is basically no case law that addresses criminal usage of hypnotism. Can you hypnotize someone without their consent? It’s unclear! The closest we can get is the case of Modi v. West Virginia Bd. of Medicine (W.Va. 1995) where a psychiatrist was hypnotizing patients as part of “depossession therapy,” basically performing an exorcism but more science-y, without consent. The court pretty much says the board failed to consider if depossession therapy was “experimental therapy” and required prior consent. Does that mean if Modell is using hypnotism to carry out his crimes, he can’t be stopped? It’s not like he’s the one actually killing them…

But wait! An important aspect of the episode is that Modell has already been arrested but uses his ability to escape and evade capture. That’s a felony right? And if someone dies while you’re committing a felony, that’s felony murder! Whether you’re the one who does it or not! Let’s take a look at the books….


Spooky Statutes

Here we go, the Model Penal Code states “[C]riminal homicide constitutes murder when . . . it is committed recklessly under circumstances manifesting extreme indifference to the value of human life. Such recklessness and indifference are presumed if the actor is engaged [in] . . . felonious escape.” (MPC § 210.2).

We got ‘em. Book him Tony. Wait a second, what’s this? It turns out in Virginia (where the episode takes place) Felony Homicide is defined as, “[t]he killing of one accidentally, contrary to the intention of the parties, while in the prosecution of some felonious act.” ( Va. Code Ann. § 18.2-33). Well that’s no good. Modell clearly intended for his victims, including Agent Burst, to die.

Well dang Tony, now what? You’re telling me our mens rea and our actus rea are right there but cancel each other out?! Wait! Don’t leave yet. We’re not giving up. You know we don’t just go by what statutes say. We go by what courts say they say. That means we need to look at…

Creepy Caselaw

First, let’s do our due diligence and look at a case of felony murder in Virginia, where the victim died of a heart attack, just like our victim in the “Pusher” case. In Spain v. Commonwealth (Va. Ct. App. 1988), a robber got into a standoff with police inside the house he was robbing after he threw the homeowner out, literally. The homeowner, Ethel WIlliams, ended up suffering a myocardial infarction (a heart attack) and died. The Court points out that while intent isn’t necessary, malice is, and the robbery is itself proof of malice. However, it’s not totally clear if the Court would’ve upheld the conviction if Spain hadn’t physically shoved Williams prior to her heart attack, pointing out the jury instruction reading, “It is not necessary for a conviction of murder that the wounds, injuries or trauma be the direct cause of death;“ while the medical examiner said, “Williams died of a stress-induced heart attack and that the robbery of a woman in Williams’ condition was a sufficient stress to trigger such a heart attack.” Ok, so stress enough? Or does trauma still require a physical act? And this doesn’t help us much with the issue of it needing to be accidental under the statute.

There is also a case someone being convicted for involuntary manslaughter despite using nothing but their words after their victim ended his life at their urging. This case does come to us from another jurisdiction, but it may be the best we can do. In Com. v. Carter (Mass. 2016), the Court stated plainly, “Effectively, the argument is that verbal conduct can never overcome a person’s willpower to live, and therefore cannot be the cause of a suicide. We disagree.” Basically, as long as the defendant’s conduct is “wanton and reckless,” meaning intentional conduct with a high degree of likelihood that harm will result, then it doesn’t matter if that conduct is only verbal. They also specify knowledge can be either actual or constructive, and since Modell knows (or at least believes) he has the ability to influence people, he has actual knowledge of the harm that could, and did, occur. Another interesting fact is that the opinion references another incident in which participants in a game of Russian roulette were guilty of involuntary manslaughter when one of the “players” died. In the exciting finale of “Pusher,” Modell uses his ability to make Mulder play Russian roulette with him. Needless to say, Mulder survived the encounter.

It looks like we could maybe argue our case at this point and try to thread a needle here, but, like Scully, I like to have science on my side. So also like our hero Scully, let’s get a little more academic, a little more…



After doing some digging, it turns out “homicide by heart attack” is not an entirely novel idea. In fact, the “Guide For Manner of Death Classification” even says, “Deaths resulting from fear/fright  induced by verbal assault, threats of physical harm, or through acts of aggression intended to instill fear or fright may be classified as Homicide.” It even gives an example of someone dying after someone yells “BOO” at them. But as we know, not all homicides are murder. So, can sudden cardiac death be murder? Well in his article, “Can Sudden Cardiac Death be Murder?” (J. Forensic Sci. Apr 1978) JH Davis, M.D. lays out the criteria for just such a thing. His five elements are:

1) The criminal act should have sufficient elements of intent to kill.

2) The victim should have realized that the threat to personal safety was implicit.

3) The circumstances should be highly emotional.

4) The death must occur during the emotional response.

5) The victim actually suffered a heart attack.

Wow! That all looks pretty good, except one potential hang-up. It looks like we’d need to prove Agent Burst was aware of the threat posed by the Pusher, but he never bought into his abilities. Wait, what? You’re right! It says should have realized and we know he should have, because Mulder was yelling at him to hang up the phone the whole time because of how dangerous it was.


With that, I think we’re ready. We’ve got a legal argument for trial that weaves together statutory interpretation, case law, and scholarly analysis to frame Modell’s supernatural suggestion as a lethal weapon. Despite the absence of physical contact, we aim to demonstrate that Modell’s unique method of killing does not exempt him from the reaches of the law. Because as attorneys, we too have the ability to alter minds with our words.

That’s it X-philes! Until next time, remember the truth is…. a question for the trier of fact.

(And if you’re wondering how you could even try a person who can take the stand and use his ability to escape again, you may be overthinking it).

Conspiracies and Creatures in the Courtroom: The X-Files Docket – “Pusher” by Jack Ellis (2L)

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