Roberta Duncan

Business Law and Ethics

31-May-11
The Case of the Speluncean Explorers

Synopsis

 5 members of the Spelucean society became trapped in a cave due to a mudslide

 An effort that resulted in the death of 10 men lead to the rescue of 4 of the 5 members of the
cave exploration party on the 32nd day of their imprisonment. One member was not found alive
due to circumstances that took place during the party’s imprisonment
 The exploration party was lead on the expedition and was lead through the prospect of food
sources during imprisonment by Roget Whetmore
 Whetmore represented the exploration party when inquiring about food stores
o Initial food stores: 2 days worth
o Food stores on day 20: not enough to last the additional 10+ days the rescue crew
needed to free the team
o Availability of alternative, traditional food stores in the cave: None
o Other non-traditional alternatives: Consume a member of the team
 Chairman of the Committee of Physicians – confirmed that consuming a
member of the team would allow that team to survive at least 10 days longer
 Advisors on the process to identify the member of the team to be consumed –
cast lots
 Committee of Physicians – none would comment on the process
 Judge or government official – none would comment on the process
 Priest or Minister – none would comment on the process
 Roger Whetmore did not survive imprisonment
o Lots were cast
o Whetmore wanted to wait another week before deciding to consume a member of the
party
o Whetmore’s lot was cast by another member of the party and he did not object to the
fairness of it
o He lost the lot and was consumed by the other members of the party
 The 4 surviving members of the exploration party were indicted for the murder of their
colleague (Roger Whetmore), were convicted and sentenced to death by hanging in accordance
with the Commonwealth statute NCSA (NS) 12-A: “Whoever shall willfully take the life of
another shall be punished by death.”
 At the trial, the trial judge made this ruling because the law of the Commonwealth permitted
him “no discretion with respect to the penalty to be imposed”
 After the trial, the jury and the trial judge petitioned the Chief Executive to have the sentence
commuted to imprisonment of six months

Opinion

The trial judge and jury request for clemency, appears to be consistent with the explanation of clemency
below as it pertains to the desire to “afford relief”:

"Specifically, executive clemency is a central mechanism to afford relief from undue

harshness or evident mistake in the operation of the legal system or enforcement of
 Roberta Duncan
Business Law and Ethics
31-May-11
The Case of the Speluncean Explorers
criminal law. It is therefore effectively a check on the power of the judiciary. Clemency
provisions are broadly found to be fundamental aspects of major criminal justice systems
worldwide, with the exception of China. In the United States, executive clemency may
take the form of a pardon, commutation of sentence, remission of fine or restitution, or
reprieve. A pardon may reduce or set aside a sentence, even before formal charges or
conviction is acquired, but generally a pardon only restores a person's reputation or
reinstates a citizen's civil liberties; commutation of a sentence substitutes a milder
sentence without relieving the criminal stigma of the crime committed; and a reprieve
postpones a scheduled execution."1
Although I do believe strongly that the interpretation of the law as a key role of the judge, the trial judge
in this case does not appear to have exercised his right to do so, but preferred to challenge the Chief
Executive to sidestep his “responsibility” to exercise this same right. The trial judge should have fulfilled
his duty an upheld the spirit of the law. However, given that this was not done and based on the
information above, if the justices are not able to overturn the decision of the trial judge, clemency or
pardon, appear to be the only appropriate mechanisms to resolve this matter.

There are several key pieces of information provided during this case that lead to my opinion that the
trial judge and jury upheld the letter of the law, but did not uphold the spirit or intent of the law. Laws
are developed to protect both the individual and the society at large. However, there are several
aspects of society in which the greater good of the community takes precedent over the good for the
individual. This is where the interpretation of the law is important, as the letter of the law does not
cover every possible scenario that could occur to violate the law. The interpretation of the law is
important to consider in each case that sits outside of “normal” circumstances.

There are a few speculations that one can make in a case such as this:

1. The interpretation of this law started with the members of the exploration party, continued with
the individuals who did or did not advise them, carried through to the judge and jury, and
subsequently to the Supreme Court: The underlying sentiment through each of these groups is
consistent; the law did not have practical application within the context of this case in which
survival of the members of the exploration party was the ultimate goal. The survivals of the
members of the party are what lead to the development of the rescue committee, rescue team
and public support for efforts to ensure that the men were saved. The trial court decision
should be reversed. In fact, if the trial court decision is upheld, there are several accomplices to
the “murder”, as well as individuals who committed “murder” that would need to be brought to
“justice”.

Rational for the trial of accomplices:

 Loaded gun – The rescue committee confirmed that in the absence of any other food
source, human flesh would serve as substance to maintain survival

1
Andrew B. Whitford, PhD, Associate Professor of Public Administration and Policy at the University of
Georgia School of Public and International Affairs, and Holona LeAnne Ochs, PhD, Assistant Professor in
the Department of Political Science at Howard University Graduate School, in their Nov. 2006 American
Politics Research article "The Political Roots of Executive Clemency"
 Roberta Duncan
Business Law and Ethics
31-May-11
The Case of the Speluncean Explorers

 Failure to report – The rescue committee was aware that one or more members of the
exploration party could be lost during the imprisonment if rescue efforts took longer
than food stores could last. The council not only refused to provide guidance to the
members of the party on the potential implications of their decision, the council also did
not notify officials or seek legal advice on how to handle this situation in the event that
the members of the party were left with no other alternatives
 Failure to provide an alternative – The rescue committee, well aware of the status of
rations for and the medical condition of members of the exploration party, did not
provide alternative solutions (i.e., don’t kill anyone, but each parts that can be replaced
by prosthesis) or try to drill a hole to the trapped party through which food and water
could be provided

Rational for an additional murder trial:

 Decision to take the life of another – The committee knowingly sent a team to rescue 5
men under circumstances where the lives of members of the rescue team were placed
at risk. As a result, a man died and the rescue effort continued until a total of 10
members of the rescue team were killed (“murdered”).
2. The interpretation of this law drove the rescue team to decide that they had to initiate and
implement rescue efforts in order to avoid the possible interpretation they “willfully” allowed
the men in the exploration party to die. This would also mean that they did not fully assess the
risk of this decision within the context of the number of lives that they “willfully” would allow to
be taken through the danger of such a rescue effort

Opinion in regards to the justices:

Justice Point/Position Agree Opinion

Truepenny – I disagree
with justice Truepenny’s
underlying opinion that
the trial judge made the
right decision. I do not
agree that clemency is
the next viable option.
The role of the justices is
the next viable option
and justice Truepenny is
acting in a manner that
is similar to the trial
judge.
Foster –I agree with
justice Foster, however
/
Disagre
e
The trial judge followed Disagre See previous comment
a course that was fair, e
wise and the only
course that was open
under the law
Our sympathies incline Disagre This is not a matter of sympathy.
us to make allowance e The letter of the law is not meant to
for the tragic condition cover every conceivable scenario, as
in which these men the law could never be written to
found themselves cover everything.
Clemency seems Agree See previous comment
admirably suited to
mitigate the rigors of
the law
I believe that something Disagre The letter of the law is not meant to
more is on trial in this e cover every conceivable scenario, as
 Roberta Duncan
Business Law and Ethics
31-May-11
The Case of the Speluncean Explorers

Justice Point/Position Agree Opinion

/
Disagre
e
not on a few points of case that the fate of the law could never be written to
his argument. these unfortunate cover everything.
explorers; that is the
law of our
Commonwealth
I do not believe that the Agree The letter of the law is not meant to
law compels the cover every conceivable scenario, as
monstrous conclusion the law could never be written to
that these men are cover everything.
murderers. I believe, on
the contrary, that it
declares them to be
innocent of any crime.
Positive law vs state of Disagre Does not appear to have strong
nature e arguments that are grounded in legal
precedents
What these men did Agree Based on the testimony of the
was done in pursuance defendants, Whetmore wanted to
of an agreement postpone the decision, but did not
accepted by all of them appear to disagree with the decision
and first proposed by
Whetmore himself
Ten workmen were Agree See previous comments
killed in the process of
removing rocks from
the opening of the cave.
Did not the engineers
and government
officials who directed
the rescue effort know
that the operations they
were undertaking were
dangerous and involved
a serious risk to the lives
of the workmen
executing them
Self defense Agree In addition to previous comments,
survival is a form of self defense.
Tatting – I disagree with Code of nature – If one Disagre Although I do not agree with the
justice Tatting in the party attempts to e code of nature, this argument
perspective, which is withdraw, the others offered by justice Tatting only
similar to justice may take the law into demonstrates a case where the law
Truepenny, that the their own hands and (regardless of being a code of nature
letter of the law is to be enforce the contract by or a statute in the Commonwealth) is
followed without violence. It is a code violated. If this was the case, the
 Roberta Duncan
Business Law and Ethics
31-May-11
The Case of the Speluncean Explorers

Justice Point/Position Agree Opinion

/
Disagre
e
interpretation. Unlike under which a man may defendants would have rightfully
justice Truepenny who make a valid agreement been convicted of murder. I fully
appears to infer that empowering his fellows recognize that the testimony of the
interpretation of the law to eat his own body. defendants leads one to believe that
is within the scope and Whetmore never tried to back out of
the remit of the Chief the agreement, but only to postpone
Executive, justice Tatting it and that this may not be entirely
believes that there is no true. However, there is no evidence
room for interpretation to indicate that it was not true.
Purpose – If hunger Disagre Regardless of how the thief
could not justify the e perceived his options, he did have
theft of wholesome and options. The individuals trapped in
natural food, how can it the cave though the matter through
justify the killing and and sought council before arriving at
eating of a man? the conclusion that there were no
options.
I am struck by the Agree See previous comments.
absurdity of directing
that these men be put
to death when their live
have been saved at the
cost of the lives of 10
heroic men.
Unfortunately,
however, the men have
been indicted and tried,
and we have been
drawn into this
unfortunate affair
I declare my withdrawal Disagre This is virtually the same stance that
from the decision in this e the trial judge took; rather than be
case associated with making a decision
that requires interpretation of the
law, pass the responsibility onto
others
Keen – I disagree with Whether clemency Agree See previous comments
justice Keen should be extended to
these defendants if the
conviction is affirmed…
that is a question for
the Chief Executive, not
for us
Deciding whether what Disagre This is a core role of the legal system
these men did was e and cannot be separated from the
“right,” “wrong,” question of the meaning of the
 Roberta Duncan
Business Law and Ethics
31-May-11
The Case of the Speluncean Explorers

Justice Point/Position Agree Opinion

/
Disagre
e
“wicked,” or “good”…is statute
irrelevant to the
discharge of the office
as judge
The sole question is Agree See previous comments
whether the
defendants, within the
meaning of NCSA (NS)
12-A, willfully took the
life of Roger Whetmore
Handy – I agree with justice Handy with the exception of the role of public opinion which I believe
that law should not be swayed