Preacher

Preacher is the iconic series by Garth Ennis, starring the Rev. Jesse Custer, a Texas preacherman who, accidentally possessed by some kind of supernatural being, unintentionally flattens his church, kills most of his congregation, falls in with a vampire, and goes on a rampage across at least two continents. So it’s basically a traditional, conservative morality play which maintains decent standards of… no, just can’t do it. It’s one of the most violent, disturbing, and alternatively terrifying, disgusting, and downright irreverent but also most interesting comics that’s been written in the last two decades. It’s up there with Sandman in terms of inventive comics, particularly in the non-superhero genres.

Those already familiar with the series will know that Custer gains the power of The Word, i.e. the ability to order anyone to do basically anything, and have them do it. Literally. If it’s impossible, they’ll either do it or (sometimes and) die trying.

Which raises an interesting series of legal questions related to theories of conspiracy and accomplice liability, but also some more subtle ones. There aren’t really any spoilers here, but we’ll move the rest inside for length’s sake.

Just to be clear: we’re considering all of this from the perspective of a prosecutor, judge, and jury that do not know about Custer’s power.  If the nature of Custer’s power were known, then the people he orders to do things would not be liable for their actions.  There are multiple possible defenses, including duress, temporary insanity, and simply lacking the required mental state to commit the crime charged.  The more interesting question is how it would play out when the nature of his power isn’t already known in a legally provable way.

I. Conspiracy

Let’s start with conspiracy, i.e. the crime of colluding with another person to  break the law at some point in the future. This collusion is a criminal act independent of the actual law to be broken. The theory is that two or more people acting in concert can do more wrong than a single person acting alone and are also more likely to actually go through with it, and so the legal system has long punished conspiracy as a serious offense independent of the crimes that a conspiracy may commit.

The question is whether Custer telling someone to break the law, and then having them do it, counts as “conspiracy.” We need to answer this, and all succeeding questions related to Custer’s use of The Word, from two perspectives: metaphysical and evidentiary.

From a metaphysical perspective, knowing what we do about Custer and his powers, the answer is clearly “No,” because any person Custer orders to do anything generally hasn’t “conspired” with him in any way at all. Indeed, we see several examples of people being told to do things they didn’t want to do, doing them, and becoming really upset about it. Custer orders one poor sod to count three million grains of sand on a beach before he can get up. He gets to about ten-thousand before the wind blows over his pile and he starts again, weeping. So the comic quite clearly implies that people subject to The Word retain their mental faculties and agency in every respect except obeying the command.

But then there’s the evidentiary perspective. A prosecutor faced with a person having, say, shot another person at Custer’s behest, has the following facts: Custer told A to shoot B, and A did it. That’s all that’s obvious about this situation. There’s no obvious compulsion, no threats, no physical force of any kind. Just The Word. Custer may even come out and say that he’s got supernatural powers, and A might confirm this, but really, what evidence have they got? Other than Custer going around and proving it—which he’s probably got no real incentive to do—the DA doesn’t have any decent reason not to charge them both. He might decide not to charge A with anything (you can charge only one person as part of a conspiracy, as it turns out), but he’d certainly be able to get an indictment out of a grand jury (or survive an initial motion to dismiss) if he decided to charge everyone. And unless A makes one heck of a witness on the stand, odds are decent that a jury would convict given the available evidence.

II. Accomplice/Accessory Liability

Then we come to a second possibility. Say Custer tells someone to commit a crime. They do. But Custer isn’t there at the time, he’s off doing whatever. Now we’ve got a defendant who wants to say that Custer told him to do something, and that’s the only reason it happened. Note that this is independent of the conspiracy charge: now we’re talking about whether Custer is liable for the crime itself.

Metaphysically, Custer is liable for the crime, because he was the one who ordered it. You can’t duck a murder charge by hiring someone else to do it, for example, and in fact hiring someone usually makes it first degree murder at that. So when he orders that a crime be committed, he’s just as guilty as if he were a normal crime boss.

But from an evidentiary perspective, again, all we’ve got is the defendant’s word for it. If Custer decides to deny that he said anything, then unless the DA has some independent source of testimony or evidence, he’s going to be hard pressed to secure an indictment, much less a conviction.

III. Liability for Self-Harm

At various points in the series, Custer tells people do some… rather unpleasant things to themselves. The command “Eat your own gun” leaves one guy without teeth. The command “Count three million grains of sand” basically strands one guy on a beach, potentially until he starves. The command “[have sex with] yourself” has one guy perform a rather obscene self-surgery in an attempt to carry out the command literally. Is Custer liable for any of this?

Metaphysically speaking, absolutely. He’s using his powers to cause harm, and everyone knows it. So, yeah. There might have to be some creativity in what we call it—counting three million grains of sand? False imprisonment!—but there’s definitely crimes that can be identified here if we’re provided with all of the relevant information.

But evidentiarily speaking? Potentially, as it turns out. Here’s the thing: when we’re talking about Custer ordering people to commit crimes they wouldn’t otherwise commit but which are, aside from that, basically normal crimes, it doesn’t really look all that much like anything funny’s going on to an objective but uninformed observer. But now we’re talking about some truly, deeply weird happening. People don’t do stuff like that. People do shoot other people for no reason. People do drop their guns and run away from fights, even if doing so violates their orders. People don’t shatter all their teeth trying to swallow a pistol. Exceedingly few mentally ill people would do that, and the victims show no other signs of mental illness. So if we’ve got people who will testify that Custer gave a command and the other person just started hurting themselves or was unable to stop doing something… that starts to get kind of suggestive. It’s still going to be a tough sell to overcome reasonable doubt, but one could argue that there’s at least room for an indictment here, and a skilled prosecutor (and surviving victim) may well be able to sell it to a jury.

But one thing he wouldn’t be liable for is the sheriff’s suicide in the “Gone to Texas” story arc. The sheriff, having been given the rather obscene order mentioned above, shoots himself at the first opportunity to do so. Custer didn’t tell him to do that, he did it on his own. Subsequent suicide of a victim isn’t something generally attributable to tortfeasors. Because there’s an intentional act by the suicide, that breaks the chain of causation between their death and the tortfeasor’s actions. So while the sheriff’s uniquely-named son (this is a family blog!) may be ethically correct in thinking that Custer is responsible for his father’s death, the law wouldn’t probably recognize this. The only times when the law recognizes liability for another’s suicide tend to be cases where the defendant had some specific duty to the deceased, such as a psychological counselor. Custer’s about the furthest thing from that.

IV. Conclusion

A lot of what goes on here is just wildly illegal, but given the nature of The Word, even a skilled DA would have a difficult time convicting Custer for anything beyond conspiracy a lot of the time. He might have more luck with cases of self-harm, as those tend to be downright weird enough to make the inferences needed more plausible, but accessory/accomplice liability could be a very, very difficult thing to prove.

25 Responses to Preacher

  1. What about the case of Klan big D.C. Stephenson, who was convicted of murder on the ground that his actions led directly to the victim’s death, even though she deliberately and voluntarily swallowed poison?

    • She actually died of a staph infection related to her injuries. Or, at least, that was the evidence presented at trial. So the suicide issue was side-stepped.

      • I don’t think the Wikipedia entry is completely accurate. As discussed in the Indiana Supreme Court case, the state had two theories of the case: death from an infection caused by wounds received at the hands of the defendant and death by suicide for which the defendant was legally responsible. As the dissent in the case notes, the per curiam majority followed the second theory in upholding the conviction. Here’s the key section of the majority opinion:

        “So if it be true, as appellant contends, that the indictment alleges that Madge Oberholtzer voluntarily committed suicide, that is, that she took her own life while in sound mind, such an act on her part would constitute an intervening responsible agent such as would break the causal connection between the acts of appellant and the death of Madge Oberholtzer.

        But we cannot agree with appellant in this construction of the first count of the indictment, for it is alleged in said count, in effect, that Madge Oberholtzer was, at the time she swallowed the poison, distracted with the pain and shame inflicted upon her by appellant. If the allegations be true, and we must so consider them on a motion to quash, then the act of Madge Oberholtzer in taking the poison was not the act of a responsible agent, and the chain of cause and effect between the acts of appellant and the death would not be broken, and appellant would be guilty of murder, provided the alleged irresponsible mental condition of Madge Oberholtzer could be said to be the natural and probable result of the alleged treatment by appellant.

        Whether or not the alleged treatment accorded Madge Oberholtzer by appellant would naturally and probably result in rendering her distracted and mentally irresponsible was a question of fact for the jury. We think the facts and circumstances alleged and set out in the indictment were sufficient if proven to justify a finding of guilty by the jury.”

    • For reference, the Stephenson case is reported at Stephenson v. State, 205 Ind. 141 (1932). For a slightly more modern take on it, Professor LaFave’s treatise on criminal law states that an attacker will only be liable for the victim’s subsequent suicide if “[the victim] acts out of the extreme pain of wounds inflicted by [the attacker] or when the wound has rendered [the victim] irresponsible.” I haven’t read Preacher, so I can’t say whether the suicide would fall under either of those conditions, but it’s possible.

      • For another real-life situation one might be able to apply, there’s the cases of bullying causing suicides. In the case of children bullying children, it’s tricky because they generally can’t be tried as adults, but there’s that famous one where it was the mother of one of the girls who harassed that poor girl into suicide via Facebook.

      • TimothyAWiseman

        @Sean Duggan In the cases of bullying leading to suicides, the bullies are not being charged for the suicide directly. In one of the more famous cases centered around Lori Drew, she was convicted of a misdemeanor under the computer Fraud and Abuse Act because she violated Myspace’s terms of service. Although it is obvious the prosecutors were motivated by the suicide and it almost certainly influenced the jury, she was not directly charged for the suicide but only “unauthorized access” to Myspace.

        More recently some states have attempted to pass anti-cyber bullying legislation. But even there, those violating the laws are charged with cyberbullying, not with a suicide per se, since the suicide involves the intervening voluntary act of the person committing suicide.

        ArsTechnica has a good write up of the current situation at:
        http://arstechnica.com/tech-policy/news/2008/12/cyberbullying-laws-picking-up-after-myspace-suicide-case.ars
        And an overview of Lori Drew’s case at:
        http://arstechnica.com/old/content/2008/05/myspace-cyber-bully-mom-will-stand-trial-in-la.ars
        And if you want the court’s actual ruling, one of them is at U.S. v. Drew, 259 F.R.D. 449, 452 (C.D. Cal. 2009)

  2. The rationale in this post sounds like it could also be applicable to telepathic manipulation (or illusion and memory manipulation, in the case of Mastermind and the Dark Phoenix saga), or in a (slightly) more real-world scenario, a post-hypnotic suggestion. In these scenarios, however, I feel like actual telepaths or hypnotists could be called in as “experts” to attempt to prove the manipulation. (I don’t think it would be viable, however, to call in God or an angel to act as an “expert” on the power of Genesis.)

    • That’s precisely what happened in the Manhunter storyline where Kate Spencer defended Dr. Psycho in a murder case, which we wrote about here. The prosecution alleged that Dr. Psycho committed murder via psychic possession, and Dr. Midnite was called in as an expert witness for the prosecution to testify that brain scans of the victims (i.e. the possessed people, not the deceased) showed evidence of psychic possession.

      • You might be able to argue that God and angels* are experts on this matter, specifically as God is often referred to as the original designer of this universe and someone who would presumably be very familiar with anything in it. Of course you would have an interesting time proving that the individual giving testimony was actually God.

        *As in God and angels from the religions of Judaism, Christianity, Islam and associated sects of course.

      • Are there angels in Judaism? The first mention of angels in the Bible was in the New Testament.

      • Thanks for correcting me.

      • I can’t seem to reply directly to Gyre’s post, so I’ll reply here: If the Person were in fact God, I am fairly sure that the Almighty could use His power over the veil that separates us from Him to make it unquestionable to all present that He was, in fact, God.

        Of course, whether He WOULD do this is another question entirely…

      • Assuming the Judeo-Christian-Islamic God, couldn’t you just imagine God as a witness? “Do you swear to tell the truth, the whole truth, and nothing but the truth so help YOU?” The thought makes me giggle. Would God even have to swear to tell the truth and if so would he still swear on a Bible, Torah, Koran, or all three?Interestingly though, it would be difficult to have God as a witness as the sound of his voice would kill everyone within earshot. Would it be possible for God to give written answers to questions or would it be acceptable for God to testify through the Metatron in the same fashion a deaf person would use an interpreter?

  3. In the classic example of strapping a bomb to someone and telling them to rob a bank or you will blow them up, can’t the instigator be charged with more than just conspiracy in regards to the subsequent robbery? I would think that the Preacher’s situation would be similar, if not even stronger – at least a person with a bomb strapped to them still has the option to just let themselves be blown up instead of committing a crime, Jesse’s victims don’t have even that option.

    • So it’s important to note again the context in which the post was written: we’re assuming that people don’t know about Custer’s power. If people knew about and could prove Custer’s power, then the victims wouldn’t be guilty of conspiracy because they were acting under duress, while insane, or simply lacked the ability to form an agreement to commit a crime (take your pick). But as a practical matter they could quite easily be found guilty of conspiracy because all the evidence points to a conspiracy.

      In the bank robbery case, the victim is acting under duress and so isn’t liable for the robbery or conspiracy, while the mastermind is guilty of robbery, assault (strapping the bomb to the person), and likely all kinds of other crimes.

  4. In a related note, assuming charges could be brought, is there anything that the prosecutors could legally do to prevent Custer from simply testifying “* Find Me Not Guilty *”?

    • That’s a tricky one. Assuming he was somehow prevented from using the Word, the prosecutor could argue that he should only be allowed to testify via typing or some other non-vocal method. Very few constitutional rights are absolute, and a defendant can lose the right to be present in the court room through disruptive behavior, so I could see a court applying the same logic to the defendant’s right to testify on his own behalf.

      But suppose Custer did manage to tamper with the jury by commanding them to find him not guilty. A mistrial could be declared and Custer re-tried if the jury hadn’t reached a verdict yet, but what if the tampering wasn’t discovered until after the acquittal? Could the prosecutor do anything about it after the fact? And there the answer seems to be no. As we discussed in the context of jury tampering by the Joker and Catwoman, the finality of an acquittal is pretty dang close to an absolute right:

      “A judgment of acquittal, whether based on a jury verdict of not guilty or on a ruling by the court that the evidence is insufficient to convict, may not be appealed and terminates the prosecution when a second trial would be necessitated by a reversal. … To permit a second trial after an acquittal, however mistaken the acquittal may have been, would present an unacceptably high risk that the Government, with its vastly superior resources, might wear down the defendant so that “even though innocent he may be found guilty.”” United States v. Scott, 437 U.S. 82, 91 (1978) (emphasis added).

      “The constitutional protection against double jeopardy unequivocally prohibits a second trial following an acquittal, for the public interest in the finality of criminal judgments is so strong that an acquitted defendant may not be retried even though the acquittal was based upon an egregiously erroneous foundation.” Rodrigues v. Hawaii, 469 U.S. 1078, 1079 (1984) (emphasis added).

      The only circumstances under which a modern court has upheld a retrial after acquittal was Aleman v. Honorable Judges of Circuit Court of Cook County, 138 F.3d 302 (7th Cir. 1998). In that case the defendant bribed the judge before his murder trial even began, and so the courts held that he could be “retried” because he’d never been tried in the first place because he was never actually in jeopardy of a conviction (it was a trial before the judge; there was no jury). That wouldn’t be the case here if Custer waited until near the end of the trial before tampering with the jury.

      Some scholars have argued that even the Aleman case was wrongly decided and that even a fraudulently obtained acquittal is sufficient. The Supreme Court declined to take up the case, so the issue is not fully settled.

      • Assuming he did simply order the judge (and/or jury) to find him not guilty, would the best recourse by the government be to simply charge him with something else and demand that he be rendered unable to speak?

      • That’s a possibility as long as there was something to charge him with and an effective means of stopping him from speaking (Does his power work if you can’t hear him speak? If it doesn’t then a SWAT team equipped with industrial-strength earplugs could arrest and muzzle him.) At the very least they could always charge him with jury tampering.

      • The Word doesn’t work on anyone who can’t hear Custer… or who doesn’t understand English, as that’s all Custer speaks. Several characters have survived encounters with him by putting their fingers in their ears, and a strike team was once assembled with no English-speakers. Really gave him a run for his money.

  5. It’s interesting exploring the theory here, but I suspect in actuality someone with that power could use it in court to get off (or instruct anyone trying to arrest them that they did not see him).

  6. But, Segev, by the Babel Fish argument, wouldn’t that prove that God DOESN’T exist?
    Then they could go on to prove that black is white, and get run over at the next zebra crossing.

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