The Whale Whistler from 1001 Nightmares

When I heard that a marine biologist and operator of a whale-watching tour boat was facing a steep prison sentence for maybe, in a way, lying about one of her employees whistling at a humpback whale, I knew I needed to revisit the issue of mens rea and environmental crimes.  In fact, the same Business Crimes professor I mentioned in my early post on environmental crimes introduced me to this story, which can be found here.  See a related Wall Street Journal Blog post here.

Harassing whales is illegal, and why shouldn’t it be?  Sure Moby Dick harassed the Pequod, but Captain Ahab was kind of jerk.  Other than that, there’s the case of, I think, the Essex, which might have been the inspiration for Moby Dick, but beyond that I sure can’t provide a list of belligerent behemoths.  So don’t harass the whales!  Chances are, they didn’t do anything to you.  And chances are, the accused biologist Nancy Black didn’t do anything to the whales either.  At least as the WSJ article suggests, the federal government doesn’t have enough evidence to prove that Black or her crew harassed the whale, so prosecutors charged her with lying under 18 U.S.C. § 1001, a “handy charge” the government can throw around when they don’t have anything else.

The Wall Street Journal explains that this statute originated from a pretty focused law:

Statute 1001’s precursor, the False Claims Act of 1863, had a relatively narrow focus:  It was intended to punish contractors and suppliers who were defrauding the government during the Civil War.

Does anyone remember where we put Bush’s “Mission Accomplished” banner?  Anyway, § 1001 can benefit white-collar prosecutions:

[T]he law can be useful in financial or accounting-fraud cases where catching a suspect in a lie that could carry a prison sentence can be a powerful tool for enlisting that person’s cooperation in unraveling the broader crime.

So it’s not all bad.  I don’t mind if the government has some extra leverage against the Enron types.

The fact that struck me the most from this case was that NOAA, the National Oceanic and Atmospheric Administration, has inspectors who in this case led of a team of federal agents to seize Black’s files, photos, and computers from her home.  I thought NOAA just provided people to talk about hurricanes and El Nino on the evening news, but I boy was I wrong.  At the time of a 2010 report from the Commerce Department’s inspector general:

some 90% of agents [in NOAA’s investigative branch] were criminal investigators although most of the agency’s work involved civil regulatory matters.

That figure is kind of astonishing, but I wish I knew if there was much, if any, difference between criminal investigators and civil investigators at NOAA.  Is it just a difference in job title?  Or are criminal matters wickedly over staffed?  I don’t know, but I do know that Kalinda investigates both civil and criminal cases on the “The Good Wife.”

This case troubles me.  I recognize that I might not know the full facts of the matter, but the facts as I know them do match up with a pattern of criminal enforcement that troubles me.  This cases troubles me because it reinforces the pattern I’ve seen of the government, whether federal or state, making an accusation from which the accused just can’t escape.

I think it’s only human nature for prosecutors and other law enforcement officials who’ve worked on a case and have come to believe in the case to want to see it through to their idea of a satisfying conclusion.  I also think it’s only human nature for those folks to want to put another win in their column, so if they can’t win with the meat of their case, they’ll find another way to win.  When this phenomenon is presented on something like “Law and Order,” the cops and prosecutors are heroes doing everything they can to keep monsters off the streets, but when this phenomenon arises in real life, a human being is being stripped of some degree of his or her humanity and faces losing his or her freedom.  That’s why a “handy charge” like § 1001 as it may have been applied here troubles me.

Further if the facts of this case are taken as presented in the article quoted above and in other media reports, I think this prosecution could do more harm than good in the long run to prosecuting environmental crimes.  People are already skeptical of environmental regulation.  The EPA, rightly or wrongly, is a favorite target of Republican politicians.  Prosecuting someone over whistles directed at whale seems to me to corroborate the thesis against environmental regulation.

Finally, I don’t understand how anyone could even suggest that whistling at a whale could actually harass the whale?  Could the whale even here it?  Wouldn’t the waves and splashing water have drowned out the whistle?  Maybe there is more to this case, but I have know idea.  But I do know that when Captain Kirk beamed a couple of humpback whales into a smelling, old Klingon Bird of Prey and flew them to the future, the whales got over it.


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