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.
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.
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.