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November 12, 2018

Ohio perspective on Dudley & Stephens and (in)famous perspective on defense lawyering

I hope everyone enjoyed as much as I did Friday's role play experience, and I also hope it gave everyone a primer on the operation of necessity (and duress) doctrines in Oliwood under the (unique) terms and structure used by the Model Penal Code.  We will be wrapping up discussion of these doctrine in our remaining classes before the Thanksgiving break, but we will not be talking any more about Dudley & Stephens.  Fortunately, if folks remain engaged by the legal and/or philosophical issues raised by the Dudley & Stephens case, there are lots of wonderful additional readings I can recommend.

A "classic" law professor engagement with the issues raised in Dudley & Stephens appeared in a Harvard Law Review article published 65 years ago.  The Case of the Speluncean Explorers by Lon Fuller is one of the most famous law review articles ever written, and the start of this Wikipedia article highlights why it is worth your time and attention:

It largely takes the form of five separate judicial opinions attributed to judges sitting on the fictitious Supreme Court of Newgarth in the year 4300.  The hypothetical involves five cave explorers who are caved in following a landslide.  They learn via intermittent radio contact that they are likely to starve to death by the time they can be rescued. The cavers subsequently decide to kill and eat one of their number in order to survive.  After the four survivors are rescued, they are indicted for the murder of the fifth member.  The prescribed penalty is capital punishment. Fuller's article proceeds to examine the case from the perspectives of five different legal principles, with widely varying conclusions as to whether or not the spelunkers should be found guilty and thereby face the death penalty under the law of Newgarth.  

Joyfully, for a wonderful, shorter and more recent consideration of these issues, one member of my criminal law class five years ago had the great initiative to imagine how a modern-day case of this nature might get resolved in Ohio. That student allowed me to post her analysis five years ago and I believe she will be fine with my reporting again.  Here is how she sets up the factual context:

Let's imagine a scenario in which four avid hikers, all associated with Ohio’s State Parks, decide to go for a winter hike at Serpent Mound, located in idyllic Adams County, Ohio. The group consists of Hatlen Books, a veteran tour guide, Dursley Dudley and Richard Stephens, members of the Ohio State Parks administration, and Peter Parker, a trainee guide, though noted as a talented climber.  The hike was predicted to be an easy one and take no more than a few hours to complete; it was more-so an excursion to view the aforementioned idyllic landscape.  The hikers deviated from the path because of an intense and unpredicted snowstorm that caught the band off-guard and limited their ability to navigate.  The band happened upon a previously unknown sinkhole that had formed sometime after the last ranger appraisal of the land (which has been some-time ago with state budget cuts).  The group was stranded on a rocky, but stable, covered corner of the hole with only snow for hydration and a 2lb bag of vegan trail mix Stephens brought on the trip.  Despite the group’s reluctance to eat vegan, they subsisted off the mix and an unlucky rabbit for 18 days.

Download Prosecuting Dudley & Stephens in Ohio


Moving from the substance to the style of criminal defense work, it is time for another movie afternoon on Friday, Nov 14.  Specifically, I plan to show a documentary about a famous (or infamous) criminal defense attorney, the 86-minute long documentary William Kuntsler: Disturbing the UniverseI figure we can start the movie at 3pm, to be followed by a happy hour if there is student interest.

November 12, 2018 in Course materials and schedule | Permalink


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