Does the Killer Whale Need a Lawyer?

CBSNews.com's Dan Farber on the Finer Points Of SeaWorld Tragedy

By Daniel Farber

(CBS) Animals kill people. People kill animals. People kill people, animals kill animals. The strong prey on the weak, the smarter species prey on the less intellectually well endowed. So it goes on planet Earth.

This week, a 12,000-pound male killer whale named Tilikum grabbed his human trainer in his mouth and drowned her in his SeaWorld tank in Orlando, Fla.

Tilikum has a violent history. In 1991, Tilikum and two female killer whales killed a trainer by drowning in Victoria, British Columbia. In 1999, the orca killed a man who had sneaked into the SeaWorld tank for a swim with the whales.

Tilikum is a serial killer. Perhaps, he should have been put into a higher security facility after the first, or even second, act of violence.

Chuck Tompkins, curator of zoological operations at SeaWorld Orlando indicated that the marine park plans to continue using Tilikum in its shows. "We need to evaluate our handling procedures and how we interact with him .... I can guarantee we will make any change necessary," he said.

Despite Tompkins' wishes, Tilikum, who is an acknowledged member of the top predator species in the ocean, could face the death penalty via lethal injection for his actions.

While Tilikum's actions cannot be condoned, he is also a product of his environment.

Tilikum is a wild animal, by human standards. But in the oceans of the world, the orca dominates as humans do on terra firma. Whales might think of humans as wild animals; diminutive creatures who nonetheless prey on them.

Orcas have an intelligence optimized for their environment. Their brains are nearly four times the size of a human brain. While brain size doesn’t necessarily equate into more intelligent behaviors, at least from a human point of view, according to various studies whales exhibit complex communication, elaborate social structures and cognitive capabilities, including learning-based foraging, cultural variation and possibly mirror self-recognition.

"I don't doubt the intelligent behavior in whales," said Dr. Patrick Hof, a professor of neuroscience at the Mount Sinai School of Medicine who has done research on whale brains. "The brain of the whale is organized quite differently from the primate brain, especially when you look at microscopic architecture of the cerebral cortex. It's quite likely as a result of adaptation over millions of years to the aquatic environment. The whale brain is wired completely differently from a chimpanzee or human, but it has functions that other animals don't have."

But no one is going to read Tilikum his rights or provide a court-appointed lawyer. The whale-human language interface has not evolved enough for inter-species communications at that level.

It could be that Tilikum needs to be represented by an attorney. A defense lawyer could claim that Tilikum was captured by humans against his will, and has been confined to small space. He is unable to socialize with his pod, which is very family-oriented, and is under extreme duress in an unnatural habitat.

He has also been exploited by marine parks for his splash and studliness. Like a Kentucky Derby winner, Tilikum is worth millions for his sperm, impregnating female orcas who spawn the offspring that puts people into the seats of SeaWorld and other marine parks.

"The setting of SeaWorld is completely foreign to whales,” said Dr. Hof. “A killer whale is a predator, a wild animal. Their hunting behavior is well documented and they can become extremely aggressive. The same situation has happened to elephants in Africa with the pressure of a growing human population encroaching on their habitat. They become anxious and stressed, and can become aggressive.

"In the end, it's an impoverished environment compared to their natural habitat-a big swimming pool, enriched food and some activity programs."

Tilikum cannot defend himself or be judged by a jury of his peers. The human judges should take into account the extenuating circumstances that brought the orca to this juncture.

See video at: http://www.cbsnews.com/stories/2010/02/25/opinion/main6243928.shtml