O Attorney, Where Art Thou?

Posted By Navid Alband || 29-Oct-2010

Analyzing this clip from the movie O Brother, Where Art Thou under Texas law, a savvy prosecutor would have enough to put everyone (except the kidnapped boy) away for a very long time.

These three escapees are certainly guilty of escaping custody. § 38.06 of the Texas Penal Code states that a person has committed the offense of escape when a person in legal custody, pursuant to a lawful order of the court, escapes from custody. This offense is further enhanced, and is found to be a third degree felony, if the defendant has been charged or convicted and confined for a felony and was confined in a secure correctional facility for that felony.

Assuming that the Soggy Bottom Boys kill the color guard members to get their clothes, they may be guilty of capital murder in the state of Texas. Under Penal Code § 19.03 a person commits the offense of capital murder when the person (1) murders a peace officer, (2) intentionally commits murder in the course of committing other felonies, (3) commits murder for remuneration, (4) the person commits murder while escaping or attempting to escape from prison, (5) commits murder of an employee of the penal institution while incarcerated, (6) person commits murder while incarcerated, (7) murders more than one person, (8) murders someone under the age of 6; or (9) murders in retaliation. In this clip, they would have murdered three men falling under subsection 7. A savvy prosecutor may also pursue that they committed murder while under custody since they were convicted and incarcerated.

Turning to the klan members, under Article § 42.014 of the Code of Criminal Procedure a crime committed against a person because of the defendant's bias or prejudice against a group identified by race, color, disability, religion, national origin or ancestry, age, gender, or sexual preference is considered a hate crime. As the leader states in this scene, their goal is to dilute anyone that is not their "color, creed, and our hometown religion." That statement encompasses most of the requirements for a hate crime finding, so we will assume that would an easy ace for the prosecution. As a condition of punishment, a judge may require attendance in an educational program due to this finding.

A person commits an offense of aggravated kidnapping when he intentionally or knowingly abducts another person with the intent to inflict bodily injury. This offense is a felony of the second degree. V.T.C.A., Penal Code § 20.04. While we do not see the actual kidnapping in this clip, it is clear that the boy does not wish to be with these men and probably did not come willingly. And the klan members clearly intend to inflict bodily harm upon him.

In the alternative to aggravated kidnapping a prosecutor may also pursue unlawful restraint under Texas Penal Code § 20.02 that it is a crime when a person intentionally or knowingly restrains another person. This crime would be a felony of the third degree when the actor recklessly exposes the victim to a substantial risk of serious bodily injury.

One commits criminal homicide when he intentionally, knowingly, or recklessly causes the death of an individual. Because the klan was unsuccessful in their endeavor they would probably be found guilty of attempted criminal homicide. A person commits an offense of criminal attempt, when, with the specific intent to commit an offense he does an act amounting to more than mere preparation but fails to effect the commission of the offense. V.T.C.A., Penal Code § 19.01.

They may also be charged with organized crime and criminal conspiracy. A person commits the offense of engaging in organized criminal activity when a person, with the intent to establish, maintain, or participate in a combination, he commits or conspires to commit murder, capital murder, arson, aggravated kidnapping, kidnapping, deadly conduct, assault (among other crimes). V.T.C.A., Penal Code § 71.01. "Conspires to commit" means that a person agrees with one or more persons that they or one or more of them engage in conduct that would constitute the offense and that person and one or more of them perform an overt act in pursuance of the agreement. An agreement constituting conspiracy may be inferred from the acts of the parties. An agreement could be inferred from the extremely organized manner in which the klan members meets and act, some type of agreement must have taken place to orchestrate such a meeting to hang someone.

The klan members may therefore be charged with aggravated kidnapping, unlawful restraint, attempted murder with the presence of a hate crime, engaging in organized crime, and conspiracy.

And let us not forget the final act of the escapees in throwing the flag pole like a javelin and clipping the wire off the burning cross to fall on members. They would likely be charged with attempted criminal homicide for both acts as they intended their acts to kill some of the members so they might get away.

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