07 December 2015

On Language: "Fuck the Fishermen"

In 1971, the Supreme Court of the United States overturned the "Disturbing the Peace" conviction of 19 year old Paul Cohen who went into a Los Angeles courthouse corridor wearing a jacket that read "Fuck the Draft".  Good call, in my opinion. Having spent some time in the United States Army, I know the word "fuck" can be extremely helpful in lots of circumstances. The Good Grey Lady New York Times will not print the word because it claims to be a "family newspaper,"  but for the rest of us, "fuck" is irreplaceable as a noun, verb, and as a participle. It can follow or precede nouns, verbs, adjectives, and adverbs, and, at least in the military, it is also useful when inserted in the middle of a word, e.g., as in "unfuckingbelievable."  That word might be the title of this piece, which is, my friends, a true story.

There is much talk these days about the size and power of the Federal government.  Tea Party'ers and neoconservatives want to shrink the federal government because, they say, that will encourage business, especially small businesses that are allegedly the foundation rock of our economy. They want to "get the government out of our lives'' and they say they want judges who will make common sense interpretations of existing laws, and not make new laws or regulations from the bench. The Liberals (who seem embarrassed by that label and now wish to call themselves "Progressives") want a strong federal government to promulgate laws and regulations to rein in corporate greed, while at the same time, they claim to want judges and federal law enforcement authorities who will protect the civil liberties of our citizens. While the prevailing meme in D.C. is that our government suffers from dysfunction because each group refuses to work with the other, there is one area where they seem to cooperate: Fuck the Fishermen.

Here's what happened:

John Yates, a commercial fisherman out of Florida, was in federal waters in the Gulf of Mexico fishing for red grouper aboard his trawler Miss Katie. Yates and his two crew mates were six days into his trip when he was boarded by Officer "Javert" Jones, of the Florida Fish and Wildlife Conservation Commission. While Florida had no jurisdiction over federal waters, Jones had also been deputized by the National Marine Fisheries Service, and was therefore authorized to enforce federal fisheries regulations. 

(The NMFS is a storied agency in Montauk. My favorite bumper sticker on pick-up trucks in town reads, "NMFS: Destroying Fishermen and their Communities since 1979".

Officer Jones and his assistant examined and measured 3,000 red grouper on board the Miss Katie, and found 98% to be in compliance with the 20 inch minimum size requirement. As in "Big Fucking Deal", this jack-booted law enforcement officer found 69 fish to be between 19 and 20 inches, and three fish a whopping 1.25 inches short. Under federal law, taking short red grouper is a civil offense punishable by a fine and possible suspension of one's valuable commercial fishing license. Jones ordered the crew to put the short fish into a separate crate to be further dealt with when the Miss Katie put into port.

But when the vessel docked, Jones found that some under size fish in the crate had been swapped out for larger (but still under size) fish, and a crew member, under interrogation, told Jones that Captain Yates had told him to effect the substitution and throw some of the smaller fish overboard.

Three years later, your federal government indicted and tried Yates for violating sections of federal law that could have put him in jail for 35 years!

That this federal litigation reached the Supreme Court of the United States exposes everyone in the judicial system to mockery:

Gotta back up a bit:  In 2001, we learned that to avoid federal investigators, Enron or its accountants had destroyed books, records and computer files.  The result was legislation called the Sarbanes-Oxley bill.  Under the heading "Criminal Penalties for Altering Documents", appears 18 USC Section 1519, entitled "Destruction, Alteration or Falsification of Records in Federal Investigations and Bankruptcy": 

"Whoever knowingly ... destroys ... or makes a false entry in any record, document, or tangible object with the intent to impede the investigation ... of any matter within the jurisdiction of any department of the United States ... shall be ... imprisoned not more than 20 years ... .”

Yup, you guessed it. The distinguished United States Attorney for the District of Florida, after thinking about this for 32 months, indicted Yates for violating three different sections of the United States Criminal Code, including this one, asserting that the fisherman "destroyed" a "tangible object".  The District Judge agreed the statute applied, as did the 11th Circuit Court of Appeals! WTF?  What are they smoking down there?

The Supremes granted review and produced 43 pages of turgid prose on the subject of legislative interpretation.  Though there is no dispute that Enron-inspired Sarbanes-Oxley was ''legislation designed to protect investors and restore trust in financial markets'' the case produced total confusion. The liberal Justice Kagan voted with three members of the hard right to affirm the conviction, and Roberts joined the Ginsburg opinion to the contrary. Justice Scalia asked the Solicitor General's lawyer "What kind of mad prosecutor would ask for 20 years for destroying fish?" but he then voted to affirm the conviction anyway! 

Not since law school have I seen phrases such as ejusdem generis,  and noscitur a socis, along with references to Black's Law Dictionary first published in the 19th century.  Shame on the Justice Department for pressing for affirmance of Yates conviction. In the end, common sense prevailed when Justice Alito broke the 4-4 tie with a concurring opinion joining Justice Ginsburg's. Alito wrote, "How does one make a false entry in a fish"?  Duh, why couldn't the "mad prosecutor'' who brought the case ask that question in the first place?

The whole thing is made even more ridiculous by the fact that Yates did not challenge his conviction under one of the other charges, and was sentenced to thirty days in jail.  The ultimate irony is that by the time the case reached the Supremes, the size limit for red grouper had been reduced to 18 inches.

All hail the NMFS!  Yup, unfuckingbelievable.

A bientot.



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