The Case of the Speluncean Explorers: A Case Law Opinion by Michael O'Shea

FACTS OF THE CASE IN QUESTION:

The four defendants are members of the Speluncean Society, an organization of amateurs interested in the exploration of caves. Early in May of 4299 they, in the company of Roger Whetmore, then also a member of the Society, penetrated into the interior of a limestone cavern of the type found in the Central Plateau of this Commonwealth. While they were in a position remote from the entrance to the cave, a landslide occurred. Heavy boulders fell in such a manner as to block completely the only known opening to the cave. When the men discovered their predicament they settled themselves near the obstructed entrance to wait until a rescue party should remove the detritus that prevented them from leaving their underground prison. On the failure of Whetmore and the defendants to return to their homes, the Secretary of the Society was notified by their families. It appears that the explorers had left indications at the headquarters of the Society concerning the location of the cave they proposed to visit. A rescue party was promptly dispatched to the spot.

The task of rescue proved one of overwhelming difficulty. It was necessary to supplement the forces of the original party by repeated increments of men and machines, which had to be conveyed at great expense to the remote and isolated region in which the cave was located. A huge temporary camp of workmen, engineers, geologists, and other experts was established. The work of removing the obstruction was several times frustrated by fresh landslides. In one of these, ten of the workmen engaged in clearing the entrance were killed. The treasury of the Speluncean Society was soon exhausted in the rescue effort, and the sum of eight hundred thousand frelars, raised partly by popular subscription and partly by legislative grant, was expended before the imprisoned men were rescued. Success was finally achieved on the thirty-second day after the men entered the cave.

Since it was known that the explorers had carried with them only scant provisions, and since it was also known that there was no animal or vegetable matter within the cave on which they might subsist, anxiety was early felt that they might meet death by starvation before ac [original page number 1852] cess to them could be obtained. On the twentieth day of their imprisonment it was learned for the first time that they had taken with them into the cave a portable wireless machine capable of both sending and receiving messages. A similar machine was promptly installed in the rescue camp and oral communication established with the unfortunate men within the mountain. They asked to be informed how long a time would be required to release them. The engineers in charge of the project answered that at least ten days would be required even if no new landslides occurred. The explorers then asked if any physicians were present, and were placed in communication with a committee of medical experts. The imprisoned men described their condition and the rations they had taken with them, and asked for a medical opinion whether they would be likely to live without food for ten days longer. The chairman of the committee of physicians told them that there was little possibility of this. The wireless machine within the cave then remained silent for eight hours.

When communication was re-established the men asked to speak again with the physicians. The chairman of the physicians' committee was placed before the apparatus, and Whetmore, speaking on behalf of himself and the defendants, asked whether they would be able to survive for ten days longer if they consumed the flesh of one of their number. The physicians' chairman reluctantly answered this question in the affirmative. Whetmore asked whether it would be advisable for them to cast lots to determine which of them should be eaten. None of the physicians present was willing to answer the question. Whetmore then asked if there were among the party a judge or other official of the government who would answer this question. None of those attached to the rescue camp was willing to assume the role of advisor in this matter. He then asked if any minister or priest would answer their question, and none was found who would do so. Thereafter no further messages were received from within the cave, and it was assumed (erroneously, it later appeared) that the electric batteries of the explorers' wireless machine had become exhausted. When the imprisoned men were finally released it was learned that on the twenty-third day after their entrance into the cave Whetmore had been killed and eaten by his companions.

From the testimony of the defendants, which was accepted by the jury, it appears that it was Whetmore who first proposed that they might find the nutriment without which survival was impossible in the flesh of one of their own number. It was also Whetmore who first proposed the use of some method of casting lots, calling the attention of the defendants to a pair of dice he happened to have with him. The defendants were at first reluctant to adopt so desperate a procedure, but after the conversations by wireless related above, they finally agreed on the plan proposed by Whetmore. After much discussion of the mathematical problems involved, agreement was finally reached on a method of determining the issue by the use of the dice.

Before the dice were cast, however, Whetmore declared that he withdrew from the arrangement, as he had decided on reflection to wait for another week before embracing an expedient so frightful and odious. The others charged him with a breach of faith and proceeded to cast the dice. When it came Whetmore's turn, the dice were cast for him by one of the defendants, and he was asked to declare any objections he might have to the fairness of the throw. He stated that he had no such objections. The throw went against him, and he was then put to death and eaten by his companions.

After the rescue of the defendants, and after they had completed a stay in a hospital where they underwent a course of treatment for malnutrition and shock, they were indicted for the murder of Roger Whetmore. At the trial, after the testimony had been concluded, the foreman of the jury (a lawyer by profession) inquired of the court whether the jury might not find a special verdict, leaving it to the court to say whether on the facts as found the defendants were guilty. After some discussion, both the Prosecutor and counsel for the defendants indicated their acceptance of this procedure, and it was adopted by the court. In a lengthy special verdict the jury found the facts as I have related them above, and found further that if on these facts the defendants were guilty of the crime charged against them, then they found the defendants guilty. On the basis of this verdict, the trial judge ruled that the defendants were guilty of murdering Roger Whetmore. The judge then sentenced them to be hanged, the law of our Commonwealth permitting him no discretion with respect to the penalty to be imposed. After the release of the jury, its members joined in a communication to the Chief Executive asking that the sentence be commuted to an imprisonment of six months. The trial judge addressed a similar communication to the Chief Executive. As yet no action with respect to these pleas has been taken, as the Chief Executive is apparently awaiting our disposition of this petition of error.

Question: As a presiding judge in the case, how would do you find the defendants?


Judge Michael O'Shea's Opinion:

In rendering my opinion and concurring with a justice presiding on the bench, I first must submit my own personal analysis of this complicated and horrific case. The circumstances surrounding this case are indeed extraordinary and further investigation is required to seek the largest amount of truth and justice granted to the defendants here in Court.

One of the main textual arguments presented by Chief Justice Truepenny is that the statue under scrutiny is not ambiguous and is plainly stated for applying the law rather than interpreting the law. The statue states, “Whoever shall willfully take the life of another shall be punished by death.” Truepenny’s argument has much strength which, at face value, can be applied to this case in question. First, the language of the statue applies directly to what the defendants did to Roger Whetmore. There is no question into the matter that the men on trial “willfully” took the life of Whetmore. However, let us reflect on another aspect of this peculiar case. Since it is under the testimony of the defendants that Whetmore was in concurrence with the decision to cast lots to determine his own fate, can this case not be cited within another statue of assisted suicide? If one “willfully” committed an act taking another’s life while the both parties consented to the benefit of such destruction, does this not beg the question of the personal philosophy of the person killed in this tragic case? Could Whetmore have been following the philosophy of utilitarianism, which is derived from obtaining the greatest amount of happiness to the greatest amount of people? If we judge that these defendants are in fact murders, does all accountability of Whetmore’s death reside in the defendants alone, or should Whetmore be partly responsible as well, since he initiated the plan and accepted his death? It is my assertion that to merely apply the statue on the grounds of the text is to ignore the basic foundation of why law has become law. If we cannot and should not use prudence when looking at each separate case, our man made laws become not only obsolete but also null and void.

In this regard, I agree with Justice Foster in presenting the argument that the Law of the Commonwealth is at stake if we try to textually apply the law in this case. It is under these circumstances we can push the textual argument aside, and look towards prudence as a form of influence upon the decision.

A more careful examination of the case leads me to another pertinent point. Justice Tatting writes a rebuttal to Justice Foster’s opinion rejecting the belief that these men were not in a “state of law” when they murdered Whetmore, rather a “state of nature.” I beg to differ with Justice Tatting for several reasons. First Tatting asks the question to Foster, when did the defendants actually enter upon the “state of nature”? The “state of nature” is not concurrent with positive law rather it is a part of natural law. It is only human nature which compels us to survive if survival is indeed at stake. While inside the cave, the defendants entered into natural law when they realized that they could not survive unless they ate the flesh of one of their group members. As it is unclear to Tatting why they are in that state, it is perfectly clear to me that the reason they encountered this “state of nature” was because survival was hopeless. This “state of nature” is essential to understand because as Justice Foster says “A man whose life is threatened will repel his aggressor no matter what the law may say.” It is clear here that these defendant’s lives were clearly at stake.Upon using prudence I shall now turn my attention to another reasoning which I can use to adjudicate this tragic case. When a man made law is enacted or enforced, there is always a reason why the law was constructed in the first place. Often times however, a man may break the letter of the law but not the spirit of the law. For example, in Commonwealth v. Staymore the defendant was convicted of leaving his car parked for more than two hours when the statue clearly states that that is a crime. However, if we examine the actual reasoning behind the defendant leaving the car parked for more then two hours we stumble across the fact he was prevented from doing so because the streets were obstructed by a political demonstration in which he took no part in. If we can use the same method of reasoning in that case as in this case then these defendants are not murderers in the slightest degree because the law shall not apply to extraordinary circumstances such as this situation.

Although I am reluctant to rule based upon “judicial activism” I must follow common sense in which many of these justices, such as Justice Keen and Truepenny have grossly overlooked. The mere fact that the justices have to hear about this case and the mere fact that they have to write an opinion on the case is brought into the light by these four men’s survival in the cave. If it were the case that all five men had died of starvation, a slow and miserable death, then would we not wish that at least four of the men inside that cave could still be alive today? It is my declaration that we should be celebrating the fact that these men survived a grueling wait in a cave for more then 30 days, and we should let them move on with their lives as they have already suffered enough. If the men had not acted in the destruction of one man’s life, we would be talking today amongst ourselves the tragic case of the five men who died in a cave from starvation. One must seriously reflect on this question and ask themselves if they truly would rather have one human dead or five humans dead, for this case seeks no other option. As a firm believer in the right to life, these men have only done what is necessary to survive where death seemed inevitable. The strong analogy posed by Justice Foster seems to be extremely telling in itself. Justice Foster explains that if a society is willing to risk the lives of ten individuals to save five, is it safe to say that we can risk one individual for the sake of four other individuals? The answer should be in the affirmative.

Justice Tatting brings in an analogy which is not apt to the situation at hand. Since we can use prudence as a form of reasoning, Tatting asserts that our logic, to remain consistent, must find a man innocent if he steals bread from a store because he is starving to death. This analogy has many problems. First, the dynamics behind a man who is free to other resources and the outside world is significantly different than men who have no other options or resources readily available. Since the man who stole bread at the store could just as easily go to a church service for food, or apply for welfare, or food stamps, shows us that him resorting to stealing was not a last and dire option. To reason with prudence when breaking the law, the defendant must expound that all other options were exhausted and that there was no possible way he could have survived had he not robbed the store for bread. For the typical thief I can safely assume that in Tatting’s analogy not all other options were sought to bring about comfort to this hungry man, therefore the act of stealing is wrong by nature. The defendants on trial today not only exhausted every means possible, but they were in such dire need for food that they ate one of their friends for mere survival. This fact in itself can show you that, since these men had no prior record to cannibalism, they were desperate for survival.

The question of self-defense can also play a vital role in making a decision based upon the circumstances in the case. Justice Keen presents the argument that since Whetmore never threatened the lives of the defendants then one cannot claim they were acting in self-defense. However, I disagree with Keen and find that Justice Foster is right on this issue. When one conforms to a law, there is always a purpose or motive behind why a law becomes law. If killing in self-defense was murder then it could never fully operate in a deterrent manner because it is human nature that we choose life over death. It is self-defense because without his death, the defendants would not be here in court today. The mere fact that Whetmore agreed to his death wouldn’t classify it as murder, but more so along the grounds of assisted suicide.

Although this is a tragic and devastating case, I must admit that I am not prepared to allow more death to ensue because our positive law was not in effect within their need for survival in the realms of natural law. I must rule that these defendants are innocent of any and all murder crimes brought against them today.