1008 comments is getting a bit unwieldy. I’m opening this thread to continue the discussion about the Mann vs. Steyn/Simberg/CEI/NRO suit. I’ll move some of the more recent comment on that thread here and then close that thread.
Closing comments here. Move discussion to Steyn-Mann steamroller?
Re: lucia (Feb 16 15:16),
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They make lots of loud noises too, and they leave lots of evidence behind that they’ve been there.
JD Ohio (Comment #124479)
“Let’s try it this way. Mann as the plaintiff has the burden of proof and has alleged that investigations cleared him.”
The Court has to decide, to some balance of probability standard, whether the alleged libel is false. Numerous investigations cleared Mann of wrongdoing. Including, for example, the NSF OIG. What does the defence have to set against that?
Boris, 124482,
You are grossly uniformed. The contents of the reports are hearsay and are not admissible unless human beings show up to justify them. Again however you evade the issue. Please show examples of people in Oxburgh and Penn State examining a significant issue with an open mind and not arriving at pre-ordained result.
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Also, with respect to most of the reports (particularly excepting Penn State) Mann was only tangentially involved) so the “investigations” couldn’t clear him of anything.
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Since you are venturing into areas of the law that you have no understanding of and continue to evade simple questions, I think I am done responding to you.
JD
JD Ohio (Comment #124486)
Wow! When it’s a matter of stolen emails found on the internet
“Circumstantial evidence of the authenticity of the document is permitted to authenticate it.”
But when it’s a published finding from, say, the NSF OIG,
“The contents of the reports are hearsay and are not admissible unless human beings show up to justify them.”
Still looking forward to the defence producing Mr FOIA
JD Ohio, am I incorrect to assume Mann would try to get the NSF OIG report admitted under the D.C. equivalent to federal rule 803(8)(C), which provides as a hearsay exception:
I don’t think it should be admitted under that rule since it doesn’t identify the investigators or author, and fails to provide any factual basis for its conclusions.
According to the NSF memo, “The University had been provided an extensive volume of emails from the Subject and determined that emails had not been deleted.” That certainly suggests both Penn State and the NSF OIG’s office have copies of the disputed emails.
FWIW, the Penn State report is here. The charges to the Inquiry and Investigatory committees are there contrary to what some, not Eli to be sure have claimed here. Among others they talked with Lindzen and that interaction is described in detail.
The truly strange thing about the whole matter was that there were no external complaints, but lots of bitching from the outside.
#1 seems to fit an accusation of fraud. So much for that bullshit attack
MJW – They might try to put it in as “not hearsay at all” on an “effect on the listener” theory. “We’re not introducing this report to say it’s true, only to show that Steyn was so overawed by it that he didn’t really believe the Stick was fraudulent…”
I think it’s a dumb argument, but the trial judges have apparently let the complaint go this far on the strength of this same argument (though they haven’t faced up to it directly, as they would have to in the face of an objection at trial).
More likely they’d call recipients of the emails…to see if they are all going to claim loss of memory. (If they do, maybe they introduce the most notorious ones under their own effect-on-the-listener theory, and leave the jury to decide whether “Team Lethe” is credible.)
Good.
Since there is nothing that incriminates Mann in the emails, I doubt he denies them.
Eli Rabett (Comment #124490)
If I assume the “investigations” were not initiated to investigate Mann, but instead to provide cover for him, it seems considerably less strange.
Joseph W. (Comment #124491)
As you aptly point out, you can’t discount much of anything when dealing with a biased judge; especially if the second judge proves to be as incompetent as the first. Even so, I can’t see the “effect on the listener” really applying unless the listener testifies to the effect. To hold that otherwise-inadmissible documents should have changed the defendants’ opinions, without having to establish why they should be relied on, strikes me as quite outlandish.
And it remains to be seen whether, at deposition, Steyn and Simberg say they read the report, or only read about it, and that too will affect whether they can try that move.
Eli Rabett (Comment #124490)
Mr. Halpern, you cite the fact that Penn State found that Mann did not, “engage in, or participate in, directly or indirectly, any actions with the intent to suppress or falsify data”. Yet we know that Mann withheld adverse R2 verification statistics and we know that Mann withheld the result on his “hockey stick” of removing the bristlecone pines from the reconstruction. We also know that Mann forwarded Jones’ request to Biffra, that Biffra delete emails. Tell us again that Penn State’s investigation was adequate. Unless of course you see nothing wrong about Mann “suppressing” his inconvenient data and abetting Jones’ coverup.
Boris (Comment #124493)
That’s something you need to talk to Nick Stokes about. He was the one who suggested Mann ought to prevaricate if asked whether he’d sent them.
MJW – I think Nick just said that Mann “no doubt couldn’t remember” if he wrote them, not that he should “strategically forget.” We’ll see what he really says in time anyway.
MJW (Comment #124499)
“That’s something you need to talk to Nick Stokes about. He was the one who suggested Mann ought to prevaricate if asked whether he’d sent them.”
Not at all. I said that he should only assure the court that they were a correct and unaltered version if he could honestly do so.
Which if he’s working from memory of ten years ago, is unlikely.
Eli:
The charges or mandate as you well know is a separate document. Obviously this is the case, since it was handed to the committee at the time it was formed, well before this report was written.
It is customary to make available this prior document because it allows us to determine how faithfully the committee followed their mandate. This comes up here because the NSF panel did receive such a set of instructions, this set of instructions is publicly available, and we can see that they did not faithfully follow their charged tasks. So it’s a real issue.
I don’t expect full transcripts for a faculty lead meeting, but publishing the minutes of the meetings is not unheard of. Have these been published? I haven’t found them. In any case, I would have expected the NSF committee to have taped the interviews and kept minutes on the deliberations. Why wasn’t this done?
So we’re a little hostile to the notion that academic committees don’t play it down the middle now?
Fraud is a act that implies motivation—that you are performing the act for the purpose of some immediate gain.
To focus a bit more on this, Mann clearly “falsified data”. He added fake data points to the beginning of the Gaspe series to keep his hockey stick shape in the earliest reconstruction period. Not only did he do this, he didn’t document anywhere that this is what he had done. (Similar tricks were played with the MXD data in Mann 2008.)
But is this falsification of data an act of fraud? I would say “no”, because I don’t think Mann’s motivation was to try and get personal gain from his act. I really think he thought the fudged data points wouldn’t affect the outcome very much, but that he’d keep a “good” proxy in the network that way.
I wouldn’t imagine a committee would investigate charges of outright fraud–that involves getting into a person’s head and figuring out why they did what they did, not just what they did. Universities aren’t equipped to do that, neither really are juries but we like to pretend they can do it. Eli’s indicated he thinks he’s really good at mind reading too.
I think Eli is showing a bit of fake outrage here. I think Eli is quite well aware of how university’s act to protect their own and their own butts. This committee did as well as could be done with the pressures that were on them, but largely the outcome was ineffective unless viewed as a whitewashing operation.
Boris, I don’t have a problem with not using R^2 actually. I think arguments can be made about the problems with it (I’ve commented above somewhere on this).
The issue never was that Mann choose to not use R^2, because he did use R^2. He didn’t quote the values for R^2 in cases where it failed to verify, which is a wholly different issue. It’s okay to say “R^2 can lead to false negatives”, that is a legitimate criticism.
It just needs to be addressed in the paper, and failing that, when the issue is brought up later, Mann should not have denied that R^2 was actually calculated and that his reconstruction failed to verify before 1820. Plus he should have provided his R^2 numbers and an explanation for why he thought these numbers erroneously failed to verify.
I have no idea why he didn’t report the results here (but similar results for ENSO are reported in the SI), but I do think he was really convinced (erroneously IMO) that his reconstruction passed the RE statistic.
No it doesn’t. There’s a reason we keep paperwork, so we can document what was actually done, versus what was said to be done.
Why you assume that a committee would diverge from their mandate and that the only way this could happen is for nefarious reasons, is a bit beyond me. In my experience, committees always diverge and the only way you keep them on track is by retaining the original mandates.
Documenting the process should be part of the evidentiary record provided by the committee.
I just finished reading the Penn State report. What a joke! The conclusions that Mann followed good scientific practice were based on a) he got a lot of grant money; b) he got a lot of papers published.
“Decision 4” reveals the purpose of the “investigation”:
Clearly that purpose was to inspire public confidence in Mann and in climate science.
I’m a bit puzzled about Wahl’s comment though. I believe low-frequency noise is going to give you an excess of false positives, not false negatives. The reason we usually apply more than one test is so we can eliminate spurious verification, not to avoid spurious fails to verify.
Boris, the Penn State inquiry concluded Mann did not delete e-mails, despite an e-mail saying that he would, and that he would forward to others to get them to delete e-mails.
It would be considered less of a whitewash, if their conclusion explained how it was that Mann lied to his colleagues. Instead they said Mann showed us e-mails with little detail.
The biggest fraud in the hockey is the choice of the 1000 year time frame. Even if the temperature was “flat” from 1000 to 1870 or so and then began rising, it varied tremendously before 1000. Whatever the forcing due to CO2 caused warming is, it is no match for other forcing’s which have repeatedly driven the earth into ice ages.
“Like Mann, Andrew Fastow of Enron was a bully toward anyone who disagreed.”
That is just priceless. The scumbag deniers who threaten to rape scientists and murder children are whining about being “bullied” by bad old Dr. Mann.
Don’t commit libel and you won’t get sued. Easy.
Mann cannot deny the veracity of the mails.
You all are forgetting something
Eli, a proper investigation would have led to the inquiry being called, ‘Piltdown Mann Redux’.
Steven Mosher (Comment #124510)
“Mann cannot deny the veracity of the mails.”
The question is, how do they get admitted?
Maybe following discovery, if permitted, and if they exist where sought.
Otherwise the defence has to establish, not just that there were emails of this general form, but that they haven’t been altered. If the custody of the files can’t be traced, that is a big task.
Buck, Jos Hagelaars has a good summary of what there is going back a few millenia.
Nick is brought into court for failure to pay for the albino chimp he purchased. Here’s the scene:
Q: Here’s a contract for the purchase of an albino chimp. Is that your signature at the bottom?
N: Well, it looks like my signature, but of course it might be a forgery. You can’t prove it’s my signature, because you can’t provide a chain of custody showing that the contract was securely protected each minute since it was signed. If, in fact, it was signed at all.
Q: Did you sign a contract for the purchase of an albino chimp in Feb 2013?
N: Well, I signed *a* contract. You can’t prove that what you showed me is what I signed. And I don’t remember every word so I can’t say for sure that’s what I signed…
Judge: Nick’s right. Nothing can be proven except that it is impossible to prove anything. Case dismissed for lack of certainty.
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Steven Mosher – has your threshold been crossed yet?
Nick Stokes (Comment #124512)
You attach the emails you want to use to a Request for Admissions (Rule 36) and ask Mann to admit or deny the authenticity of the emails. If he denies their authenticity, he has to explain why he cannot authenticate the emails.
HaroldW (Comment #124514)
I don’t have a chimp, and it’s not albino.
Will J. Richardson (Comment #124515)
“why he cannot authenticate the emails”
If you were presented with an alleged copy of an email from ten years ago and asked: “Is that exactly what you wrote”, could you be sure?
What’s the point Carrick, you and the Furies will never be satisfied. After all that is the point of being a fury. Anyhow, some more reading for youhere
This is really getting beyond stupid.
Carrick
“He didn’t quote the values for R^2 in cases where it failed to verify”
Seriously? Are we back to this strange point again. He published R2 values (comparing the reconstruction to the NINO3 region) that were just as low as the R2 values when comparing the recontsruction to the NH mean… It makes no sense to say that his results failed to verify. It makes no sense to say he ‘hid’ poor results.
I don’t think that you actually understand what he did.
I don’t think you actually understand what comparing a reconstruction from 1500-1980 against a verification period from 1854-1901 means.
My understanding is the he chose to compare the data to the NINO3 region, becuase this was an independent reconstruction over a similar time period.
Nick Stokes (Comment #124516)
Mr. Mann, did you not have copies of these emails?
Mr. Mann, have you not admitted previously that the emails were stolen from CRU?
Mr. Mann, do you have any reason to believe that this is not a correct copy of your email?
Mr. Mann, when answering the requests for admissions, did you not check your emails to determine whether or not this correctly represents your email?
Mr. Mann, did you not tell the Penn State Investigating committee that you did not delete emails?
Nathan (Comment #124518)
Not only did he hide adverse R2 statistics, but he denied making the calculation because that would be “foolish” and “incorrect”.
Nick Stokes (#124516) – 🙂
MJW: Rule 803 8(C) Public Records
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The relevant portion to me is: “A record or statement of a public office if: (A) it sets out: (i) the office’s activities; (ii) a matter observed while under a legal duty to report,”
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First, there is a question whether Penn State is a public or a private university. It has a hybrid status and is designated as a state-related University. See http://en.wikipedia.org/wiki/Commonwealth_System_of_Higher_Education Wikipedia states: ” Legally, however, the universities remain separate and private entities, operating under their own charters, governed by independent boards of trustees, and with its assets under their own ownership and control thereby retaining much of the freedom and individuality of private institutions, both administratively and academically.” If it is considered private, the rule doesn’t apply at all.
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Second, the report to be admissible must set forth the office’s activities. Don’t know whether that means the general activities of the public body (for instance, public utilities commission regulates energy companies) or whether it means that the activities that were the subject of the report. I am sure there are cases on this, but I don’t have time to research them.
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Third, the biggest hurdle is that the contents of the report are only admissible under this rule if the contents were made under a public duty to report. I doubt that any of the whitewashes were made under a public duty to report.
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Fourth, Don’t know whether UEA is public or private or whether this rule would admit foreign public documents. I suspect that there are cases on this, but don’t have time to research them.
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This rule gives Mann a little bit to argue if public investigations were done, but I doubt that any of the investigations were done pursuant to a duty imposed by law, so I don’t think this hearsay exception would apply. All of the hurdles that I mentioned would have to apply for the exception to apply, and on top of that if circumstances showed that the report was unreliable it would not be admissible.
JD
Will
There’s simply no logic to what you are claiming.
He published R2 values that were just as low, so there’s no reason for him to ‘hide’ them.
Also, what R2 stats are you claiming he hid and what was their purpose? I don’t think you know.
JD Ohio
” I doubt that any of the whitewashes were made under a public duty to report.”
This is a really bizarre thing to say. How on Earth would you know this?
Will J. Richardson (Comment #124519)
“Mr. Mann, do you have any reason to believe that this is not a correct copy of your email?”
The court needs a reason to believe that it is a correct copy.
If Mann has a copy, it will presumably be discovered
“Mr. Mann, did you not tell the Penn State Investigating committee that you did not delete emails?”
I doubt he made such a blanket statement. Have you ever deleted an email?
Nick
“I doubt he made such a blanket statement. Have you ever deleted an email?”
More to the point, he couldn’t have actually ‘deleted’ them. They’re on a server. Sure he could delete them from his inbox but that doesn’t really delete them
JD — I think there’s a larger point before you even get to hearsay, and that’s personal knowledge.
I mean, you can’t demonstrate your innocence simply by saying “Somebody else thinks I was innocent,” not even if that person was a (drumroll) public university. Even if you called the investigators themselves, so that it wasn’t hearsay at all, they wouldn’t be allowed to come in and testify that they think Mann is innocent of fraudulent hockey-sticking.
Likewise, and happily, the police can’t come into a criminal case and give their opinion that the man on trial is guilty, let alone introduce their police reports to show he must be, because look, it says so right there in the report.
So I think that report is only getting in, if it is getting in, to demonstrate its actual or likely effect on the readers, particularly Steyn and Simberg. In which case the truth of the report is incidental, and the hearsay rule doesn’t apply. (Though some of the other rules might.)
Nick,
Even if Mann fails to authenticate, the emails would still be relevant to Steyn and Simbergs state of mind: that is, what the defendants believe. That state of mind is relevant to this case. So likely they will be admitted one way or another.
With respect to determining what Steyn or Simberg believed about the emails, it is not necessary for Mann to confirm he wrote them. Questions about whether they were stolen or hacked are irrelevant and so on. It only matters that they exist, were circulated, discussed, Steyn and Simberg are aware of the contents of certain ones and those contributed to their belief about what Mann did. So I’m pretty sure if the defendants want these admitted, they will be.
As for what Mann might say about authorship: If you want a jury to find you generally credible, looking evasive or “tricky” on the witness stand is generally not a wise thing to do. It’s going to look pretty bad if he is asked if he wrote them, and he starts to mumble “I have no specific recollection of…” and so on particularly as he and others have never denied that the CRU emails appear to be generally authentic.
Moreover, if Mann looks not credible, that in and off itself might make at least some jury members thing “Sure. I can see why someone whose seen this evasive guy defend things might not trust him. Yeah… I bet Steyn and Simberg really honestly didn’t trust him.” Using our laws about defamation, that would be enough to justify ruling in favor of the defendants.
What will the jury do? I don’t know. Heck, we don’t even know what’s going to happen in the trial yet!
Nathan,
Perhaps you should look up the definition of the word “doubt”. The “doubt” does not imply certainty in either direction. That is: he is not claiming to know anything. As such your question is certainly more bizarre than his expression of doubt about something.
Carrick (Comment #124502)
Did he suspect it would make him famous at the time? I have no idea. I think the quick change of mind mentioned on Mann’s Wikipedia page is interesting.
http://en.wikipedia.org/wiki/Michael_E._Mann
Is this Mann’s Faustian moment?
BTW [18] points to the Chronicle of Higher Education:
http://chronicle.com/article/Climate-Science-on-Trial/34665
Eli, Joe Hagelaars summary is supposed to be scary based on Climate Model projections? Sorry that is a devalued currency. If I want to see the big picture we need to go back farther, e.g.
http://commons.wikimedia.org/wiki/File:Vostok_420ky_4curves_insolation.jpg
Nathan (Comment #124523)
I trust Steve McIntyre on the issue of whether or not Mann calculated and withheld adverse R2 results. See here: MBH98 Source Code: Cross-validation R2
Nick Stokes Comment 124487
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As you continue to play lawyer with no knowledge, you continue to make mistakes. The authenticity of the email is governed by Rule 901. The admissibility of what is contained in the document is governed by different rules, including Rule 803.
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With respect to the emails, Mann is in court and can be questioned about them. Also, Rule 801(d)(2) states that an admission by a party opponent is not hearsay. Additionally, Rule 613 dealing with prior statements and prior inconsistent statements of witnesses (Mann is both a party and a witness if the case goes to trial.) provides that witnesses can be questioned about prior statements they have made.
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As I said before, the emails were circulated worldwide and to my knowledge no one has denied their authenticity. The email to Revkin should not be rejected on authenticity grounds. Although I obviously don’t know what evidence will be submitted by the parties at trial, there are many ways that the Revkin email could be relevant and admissible.
JD
Nathan:
“It makes no sense” is a statement of fact on your part, and one for which you have no expertise to make such a statement. In the end, this frankly makes you look pretty ridiculous, since this is just first semester measurement theory stuff. My wife learned about this very topic in her first “general physical sciences” course in college, so you don’t need much training to get exposed to something that you think is “silly”, but is actually standard statistical methods.
In point of fact, Wahl & Ammann and McIntyre & McKitrick agree that the reconstructions prior to 1820 failed to verify.
Fails to verify refers to the confidence level associated with the R^2 value. MBH98 fails to verify at the 95% level pre-1820 with respect to R^2.
We known Mann computed the R2 values because his program computed them and he reported essentially every single value that his program computed that didn’t give an adverse result.
We know from two other research groups that the missing R2 values fail to verify.
When asked about the R^2 values, Mann claimed to not have calculated them. In any case, he has never provided his own numbers, this is indisputable.
I have no problems with Mann providing his R2 values along with an explanation for why he thinks this is a poor test, because this then allows us to examine his reasoning for ignoring the failure to verify.
I do have problems when he doesn’t honestly and forthrightly answer questions about this statistic, especially when it becomes difficult to pass off false statements he’s made as anything other than deliberate deceptions.
Leddite:
That’s a good question, but it also illustrates why there is absolutely no way PSU would investigate scientific fraud–that requires knowing Mann’s state of mind at the time he, without comment to the reader, modified the raw data by hand.
My suspicion would be “no”. I think he was trying to annihilate the MWP (and still is, based on his recent publications), but I doubt he ever in his wildest dreamed imagined this paper would get the wide circulation it did.
lucia (Comment #124528)
“If you want a jury to find you generally credible, looking evasive or “tricky†on the witness stand is generally not a wise thing to do. It’s going to look pretty bad if he is asked if he wrote them, and he starts to mumble…”
OK, I don’t know US practice here. But I’d be surprised if admissibility arguments are conducted in front of the jury.
Nathan:
I think he understands conceptually the process of verification. People don’t need to understand the details of a measurement process before they can make an evaluation for example, of whether withholding of adverse results is a bad thing.
Doctors don’t know how to perform the vast majority of phlebotomy tests themselves, but they have charts that they look at to determine what is normal versus abnormal.
Similarly, Lucia has provided some nice scatter plots that help people visualize low and high R2 scores. There’s a standard methodology for estimating the likelihood that your result could have happened by chance..
Frankly your argument is a red herring, and a weak one at that.
Joseph W: “JD — I think there’s a larger point before you even get to hearsay, and that’s personal knowledge.
I mean, you can’t demonstrate your innocence simply by saying “Somebody else thinks I was innocent,â€
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I respectfully (mostly) disagree. Rule 704 (a) states: “(a) In General — Not Automatically Objectionable. An opinion is not objectionable just because it embraces an ultimate issue.”
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Part (b) applying to criminal cases states: “In a criminal case, an expert witness must not state an opinion about whether the defendant did or did not have a mental state or condition that constitutes an element of the crime charged or of a defense. Those matters are for the trier of fact alone.”
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I think expert witnesses can testify as to the validity or invalidity of Mann’s methods. I don’t think they can testify as to whether Mann was libeled because, assuming you have adequate statistical and scientific testimony, the jury is competent to decide whether there is libel and expert testimony is not required for the very last fact finding step. Whether Mann’s statistics pass muster is a very important preliminary step, and I think expert evidence is admissible on that matter.
JD
Nick – this wouldn’t be an admissibility argument. It would be “laying a foundation,” and that does take place in front of the jury.
So you’d show the e-mail to Mann, and ask him if he recognizes it, ask him if he wrote it, or whatever — and he’d give his “yes” or “no” or “I don’t remember”…the admissibility argument wouldn’t take place until you said “I move to admit the exhibit” and the other side objected.
Unless, that is, the other side anticipated you, and filed a motion in limine (i.e., a motion to exclude the evidence) before trial. In which case you’d fight that issue out before the jury made its appearance.
In this case, I think that any e-mails that influenced Steyn’s thinking or Simberg’s would come in on that basis even if no witness could be found to authenticate them. And if Mann had been doing a lot of “I don’t remembers” on the same message before that time, that might make him look shifty, as Lucia says.
Nathan: “JD Ohio
†I doubt that any of the whitewashes were made under a public duty to report.â€
This is a really bizarre thing to say. How on Earth would you know this?”
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As Lucia stated, I didn’t use the word “know.” However, there are three reasons I doubt that there was a public DUTY (mandate) to report. First, there are probably hundreds of thousands of poorly prepared scientific papers published each year,(see http://canadafreepress.com/index.php/article/60137) yet there are very few investigations. Multiple investigations would be a daily occurrence if there was some public duty to investigate scientific mistakes or conduct. Second, if any of the whitewashes were conducted pursuant to a public duty, you would expect to see some mention of the statutory requirements at the beginning of the report. I didn’t see that. Third, some of the whitewashes were prepared by private entities. These are my reasons.
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Could you please give me your reasons why you considered my statement to be bizarre?
JD
Joseph W. (Comment #124539)
‘Unless, that is, the other side anticipated you, and filed a motion in limine (i.e., a motion to exclude the evidence) before trial.’
Wouldn’t this be hashed out at discovery? Defence would ask for them. Then either:
1. It’s allowed and Mann has them – no authentication problem, at least
2. It’s disallowed, in which case they should be able to get exclusion
3. It’s allowed and Mann doesn’t have them, in which case responding that he does remember writing such an email ten years ago, but can’t remember the exact wording seems entirely reasonable.
I don’t see how the defence looks good waving around emails claiming that they were accurately stolen from a UEA server.
Oh, I agree with that for sure! But they’d be testifying as experts, not investigators. In fact, I shouldn’t be surprised if some Team or Team-friendly scientists come in for that very purpose.
My point is that an investigator couldn’t come in just to talk about “what his investigation found.” Especially since that investigation is partly based on interviewing Mann himself. If Mann wants to testify about his innocence, he needs to get up and do it himself, not have an investigator come in and talk about what he said during an interview years ago, let alone what he thinks about it. (With the exceptions you know — for example, if Steyn tried to argue that Mann fabricated his innocence story last week, the investigator could come in to say “no, he told the same story long ago.”)
Likewise, if the investigation turned up evidence related to Mann’s non-fraud, he should introduce that evidence — not an investigator talking about the evidence. (Though he might well need an expert to explain the significance of it.)
And if I’m right, this would all be true even if the investigators came to trial to testify live. They couldn’t therefore make it admissible just by writing it in a report.
JD Ohio (Comment #124540)
“Second, if any of the whitewashes were conducted pursuant to a public duty, you would expect to see some mention of the statutory requirements at the beginning of the report. I didn’t see that.”
The OIG report started:
“Our office was- notified by a University that it had initiated an inquiry into allegations regarding research integrity, including allegations of research misconduct…
In accordance with the NSF Research Misconduct Regulation, we referred an investigation to the University…
Therefore, we initiated our own investigation under the NSF Research Misconduct Regulation. Pursuant to that regulation, we did not limit our review to an allegation of data falsification. Rather, we examined the evidence in relation to the definition of research misconduct under the NSF Research Misconduct Regulation…
Lacking any direct evidence of research misconduct, as defined under the NSF Research Misconduct Regulation, we are closing this investigation with no further action.
…
Concerning False Claims, 18 U.S.C. §287 and 31 U.S.C. §§3729-33, and False Statements, 18 U.S.C. §1 001, we examined the elements of each suggested offense and have concluded that there is insufficient evidence of violations of any of these statutes to warrant investigation.”
No, because the standards for discovery are way broader than the standards for admissibility. You certainly can demand, and get, things in discovery that are not going to be admissible in court. (Although the concepts are distantly related, since something that is utterly irrelevant to the case may well be denied in discovery.) Fights over discovery are resolved by different rules than fights over admissibility.
Also, under the theories Lucia and I were discussing, the defense wouldn’t even need to ask for those particular e-mails in discovery. They’ve already got them! Because they’ve been publicly available on the internet for years. The only question at trial would be — under what theory are they admissible?
If Mann (or a recipient) admits on the stand that they’re accurate, then boom! They’re authenticated, no chain of custody required.
If no one does, then as I mentioned before, you just use Steyn or Simberg to admit them…”I read this on the Internet; I believed it was real; and that’s part of what convinced me that this stick was fraudulent.”
(In fact, on this theory, even Phil Jones’ “Hide the Decline” e-mail would be admissible, even though it’s not from Mann…if, that is, Steyn or Simberg says that this language helped to convince them that there was something dishonest going on in Mann’s work.)
Nick OIG
I agree that there is a substantial chance that the OIG report would get by the public duty hurdle. However, it only dealt with falsification not gross incompetence, and I don’t think that anyone is claiming falsification. (Steyn said by fraud, he was making a Richard Muller type analysis.) I looked at it about the same time you posted and saw the reference to 45 CFR. Still not absolutely clear that there is a duty to investigate because there were no direct claims of falsification that prompted the review, but there very well could be. My comments the last several days dealt with the reports reviewed by McKitrick and this one wasn’t in his summary.
.
The OIG closure document just gives a general summary of where it looked, not what it specifically did. Is that information publicly available? Without specific documentation of what they did, I don’t give much credence to their closure document. I hope that SteveMc can comment on whether they contacted him and the nature of any contact.
JD
Joseph W: “My point is that an investigator couldn’t come in just to talk about “what his investigation found.”
.
I see where you are coming from now, and I tend to agree. However, some of the investigators were qualified experts, and I believe that they could come in and testify as what I would call their “expert opinion” findings.
.
JD
Nick Stokes (Comment #124536)
You would be wrong Mr. Stokes. Mann can be presented with the email and asked questions about whether or not it is authentic in front of the jury. The jury will not see the email unless it is otherwise admitted. Mann has the choice of equivocating about authenticity in front of the jury, and having the email authenticated by other means and admitted, or just admitting that the email is authentic, which would be the better course.
JD – Certainly.
I think that leaves the report itself out in the cold…unless it’s introduced for “effect on the readers.” And since that’s Mann’s theory of malice, it might be.
JD Ohio (Comment #124545)
“Is that information publicly available.”
I found nothing on the internet.
“I hope that SteveMc can comment on whether they contacted him and the nature of any contact.”
He says they did.
Nick Stokes (Comment #124549)
That was very misleading Mr. Stokes. McIntyre did not say that. Here is the quote from Mr. McIntyre’s comment at your link:
Will J. Richardson (Comment #124547)
” Mann has the choice of equivocating about authenticity in front of the jury, and having the email authenticated by other means and admitted, or just admitting that the email is authentic, which would be the better course.”
No reason to equivocate. He need only say that he remembers writing, but can’t remember the wording well enough to say that it hasn’t been altered. Then let the defence try to pillory Mann for doubting the probity of that fine fellow, Mr FOIA (who can’t be persuaded to appear).
But you left out the most likely outcome – Mann can’t swear it’s an exact version, and the doc is not admitted, either re authenticity or other reasons.
Will J. Richardson (Comment #124550)
“That was very misleading Mr. Stokes. McIntyre did not say that”
He says:
“The OIG memorandum made no mention of, for example, Mann’s withholding of adverse verification r2 results, which I outlined in detail to them in Toronto.”
Nick Stokes (Comment #124552)
You are correct Mr. Stokes. I apologize.
MikeN
There is no email where Mann says that he will delete emails. There is no email where he explicitly says that he will forward a request to others.
But someone did delete emails if I recall….what was that person’s punishment?
Carrick:
People keeping bringing this allegation up as if it isn’t disputed. Frankly, I doubt it is true.
But again, the R2 stuff was part of the NAS investigation. They have a chapter on verification statistics in the 2006 report. If Mann’s behavior regarding R2 was research misconduct, they had the opportunity to report it. They did not.
Nick: “But you left out the most likely outcome – Mann can’t swear it’s an exact version, and the doc is not admitted, either re authenticity or other reasons.”
.
Nick, you and several other commenters seem to be laboring under the assumption that for the email to be received into evidence, it has to be admitted by Mann or that there must be something close to conclusive evidence to support it. The starting points are Rules 401 & 402.
.
Rule 401 states: “Evidence is relevant if:
(a) it has any tendency to make a fact more or less probable than it would be without the evidence;”
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Rule 402 states:
.
“Relevant evidence is admissible unless any of the following provides otherwise:
the United States Constitution;
a federal statute;
these rules; or
other rules prescribed by the Supreme Court.
Irrelevant evidence is not admissible.”
.
There are obviously a number of exceptions, but there is generally no requirement that evidence has to be very good; it merely must have a tendency to be probative (of something relevant). The email obviously is probative, and for it to be excluded someone must find an exception. So far, I have seen none. So what if Mann can’t say it is an exact version. It is probative of a relevant fact. The laws remedy for inexactness is not to exclude evidence, but for the party opposing the evidence to explain the inexactness. (Good luck to Mann if he tries that tack.)
.
In terms of authenticity, since the email has been circulated worldwide, and no one to my knowledge has claimed it is not authentic, the fact of the wide knowledge of the email and the lack of any denial by anyone should prove its authenticity under Rule 901. Everyone on this board knows it is authentic, and the law allows for the authentication of the email by “evidence to support a finding that the matter in question is what the proponent claims.” There are no particular required ways to prove the authenticity of any document, and the law is not so goofy that it places proof of authenticity into some kind of technical straightjacket.
JD
Boris (Comment #124554)
The first part is true; the second part is technically true, but that counts for very little. The only thing Jones asks Mann to do in regard to Gene is to tell him to delete emails, and Mann responds he’ll “contact Gene about this ASAP.” What other meaning is possible?
JD Ohio (Comment #124556)
“The starting points are Rules 401 & 402.”
Those are rules about relevance. But more pressing at first are rules about authentication. Eg rule 1002, with this imposing requirement:
RULE 1002. REQUIREMENT OF THE ORIGINAL
An original writing, recording, or photograph is required in order to prove its content unless these rules or a federal statute provides otherwise.
And what does that mean for electronic documents:
RULE 1001. DEFINITIONS
For electronically stored information, “original†means any printout — or other output readable by sight — if it accurately reflects the information.
So someone has to say that it accurately reflects the information. That is, the original email.
Will J. Richardson (Comment #124553)
“You are correct Mr. Stokes. I apologize.”
Thanks.
Nick, please keep reading. See Rule 1003, 1004, 1008 & 104(b) and advisory committee comments:
.
“Rule 1003. Admissibility of Duplicates
A duplicate is admissible to the same extent as the original unless a genuine question is raised about the original’s authenticity or the circumstances make it unfair to admit the duplicate.
Notes
.
Notes of Advisory Committee on Proposed Rules
When the only concern is with getting the words or other contents before the court with accuracy and precision, then a counterpart serves equally as well as the original, if the counterpart is the product of a method which insures accuracy and genuineness. By definition in Rule 1001(4), supra, a “duplicate†possesses this character.
Therefore, if no genuine issue exists as to authenticity and no other reason exists for requiring the original, a duplicate is admissible under the rule.”
.
Rule 1004: “An original is not required and other evidence of the content of a writing, recording, or photograph is admissible if:
(a) all the originals are lost or destroyed, and not by the proponent acting in bad faith;
(b) an original cannot be obtained by any available judicial process;
.
See also Rule 1008: “Rule 1008. Functions of the Court and Jury
Ordinarily, the court determines whether the proponent has fulfilled the factual conditions for admitting other evidence of the content of a writing, recording, or photograph under Rule 1004 or 1005. But in a jury trial, the jury determines — in accordance with Rule 104(b) — any issue about whether:
(a) an asserted writing, recording, or photograph ever existed;
(b) another one produced at the trial or hearing is the original; or
(c) other evidence of content accurately reflects the content.”
.
Rule 104(b) states “(b) Relevance That Depends on a Fact. When the relevance of evidence depends on whether a fact exists, proof must be introduced sufficient to support a finding that the fact does exist. The court may admit the proposed evidence on the condition that the proof be introduced later.”
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The advisory committee notes state: “If preliminary questions of conditional relevancy were determined solely by the judge, as provided in subdivision (a), the functioning of the jury as a trier of fact would be greatly restricted and in some cases virtually destroyed. These are appropriate questions for juries. Accepted treatment, as provided in the rule, is consistent with that given fact questions generally. The judge makes a preliminary determination whether the foundation evidence is sufficient to support a finding of fulfillment of the condition. If so, the item is admitted. If after all the evidence on the issue is in, pro and con, the jury could reasonably conclude that fulfillment of the condition is not established, the issue is for them. If the evidence is not such as to allow a finding, the judge withdraws the matter from their consideration.”
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Part of what you fail to grasp is that if Mann equivocates, he is not really challenging the content of the writing. If he admits it could be accurate and doesn’t say it is wrong, and the email has been authenticated,then the email is the best evidence of the relevant fact. Additionally, assuming that the original email is gone, under Rule 1004 “other evidence of the contents” becomes admissible.
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Also, the reference to accuracy in Rule 1001 refers to the methodology of making copies, not to the accuracy of the original content as typed by Mann. You are arguing that if Mann equivocates on the content of his original a question of accuracy arises under Rule 1001. If Steyn says the matter was copied through the Windows copying process, or some other well known computer copy process, then the copy is accurate for Rule 1001 purposes.
.
I am sure you will keep trying, but there are no particularly difficult provisions preventing an email from a party from being introduced into evidence on authenticity grounds. If equivocation could keep out emails, everyone would do it.
JD
JD Ohio (Comment #124560)
“Nick, please keep reading.
Rule 1003. Admissibility of Duplicates”
Re duplicates, Rule 1001:
“e) A “duplicate†means a counterpart produced by a mechanical, photographic, chemical, electronic, or other equivalent process or technique that accurately reproduces the original.”
Hardly relevant here; its the same test of accurately reproducing Mann’s email to Revkin.
Notes of Advisory Committee on Proposed Rules
” a counterpart serves equally as well as the original, if the counterpart is the product of a method which insures accuracy and genuineness”
That’s just about reproduction methods; not an issue here. Unless you mean the whole pathway from UEA server to courtroom. That does not obviously insure accuracy and genuineness.
Rule 1004:
“other evidence of the content of a writing, recording, or photograph is admissible if”
Yes, but you need the other evidence.
Rule 1008.
Again, basically a relevance issue. The notes say:
“Most preliminary questions of fact in connection with applying the rule preferring the original as evidence of contents are for the judge, under the general principles announced in Rule 104, supra. Thus, the question whether the loss of the originals has been established, or of the fulfillment of other conditions specified in Rule 1004, supra, is for the judge.”
The exception is under Rule 104b – “Relevance That Depends on a Fact.” Again, relevance, not whether the doc is an accurate version.
“Part of what you fail to grasp is that if Mann equivocates, he is not really challenging the content of the writing.”
No, the point is the need for someone to provide positive evidence that the version accurately represents what Mann wrote to Revkin. If Mann “equivocates”, all that means is that he is saying he’s not the person to do that. He doesn’t have the information. It’s the responsibility of the defence to find someone.
“If Steyn says the matter was copied through the Windows copying process, or some other well known computer copy process, then the copy is accurate for Rule 1001 purposes.”
Well, it’s an accurate copy of something. But they are claiming it’s an accurate copy of Mann’s email to Revkin, not an accurate copy of something they found on the internet.
Nick
I never, ever, ever suggested these would be asked in an admissibility hearing. If the defendants want them admitted, they will probably be admitted– among other things for reasons I wrote previously. However, to repeat: They will be admitted even if Mann can’t remember if he wrote them before hand because they are relevant to the defendants forming a belief that Mann is a fraud. Whether Mann remembers he wrote them or not does not affect this relevancy issue. And it’s very relevant because the defendants belief is important in our system.
Assuming the defendants ask for them, after the emails are admitted, those questions will be presented to Mann when the pieces are introduced.
i do not listen to anything that Eli Rabett (Comment #124490) says since he is a co-conspirator.
Some questions for JD Ohio and Joseph W:
.
Is it possible at this point in time to predict what a general outline of the judge’s instructions to the jury might look like, if a trial ensues and it eventually goes to the jury?
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If guidelines exist for judges to use in formulating their instructions to a jury for defamation lawsuit cases, what are those guidelines for the Washington DC venue as they would apply to Mann’s lawsuit?
.
And is it possible to predict what kinds modifications and additions to those jury instructions might be made by the judge, based upon what might happen in the course of a trial?
Nick,
Among other things: Revkin could provide evidence that, to his recollection, he received that during a conversation with Mann. You may think that this is not sufficiently “bullet proof”, but the level of bullet proof you think required is not required by courts to get things in.
If one set of lawyers might be wanting the evidence admitted to discuss Mann’s general personality touching on whether he really could feel mental anguish over being called a fraud, the lawyers could also argue that like other CRU emails, and that argument might require Mann to confirm they are true (though this is not at all certain. I tend to suspect the American attorneys on this thread are more familiar with rules of evidence in American law than you, an Austraulian climate modeler. And they seem to think the emails would get admitted. )
But even though you want to focus on that argument for admitting the letters, it is not the only one. The fact that this email was in the CRU batch and known to the defendants affected their judgement about whether Mann was a fraud. For the latter, the judge would permit admission even if Mann said the emails were absolutely false– he never wrote them– and even if Revkin said he never got it. The only relevant questions were:
1) Was a bunch of emails called the “CRU” or “Climategate emails” widely circulated. (Yes.)
2) Was this communication in that batch of emails? (Yes.)
3) Were Steynberg, Simberg, NRO and CEI aware of the CRU emails? (Yes.)
4) Did they read this email and did it affect their interpretation of evidence the Hockey stick or Mann himself is a fraud? (Yes. )
This next won’t be required to get it admitted, but I anticipate it’s important in this thread
And why did that email purported to be from Mann to Revkin affect Steyn and Simberg’s believe? Because the appearance that Mann was working behind the scenes to protect his “hockey stick” strikes them as shifty. Sure you might think “but they can’t prove Mann did that”! But that’s irrelevant because in our defamation law with Mann a public figure, to be actionable, the defendants only need to believe he did that to win. They do not need to be correct in their belief. So, Mann’s admitting the letter is “real” and “accurate” is irrelevant.
Those questions alone get that email in if the defense wants it in. The reason it will get them in is that the issue of what Steyn and Simberg believed and why they believed it matters.
I get that you may be able to think of weaker arguments for admission that might be made that would be insufficient to get these letters admitted. But all those arguments are irrelevant if there is at least one legal argument that can succeed and the defense attorneys use the successful one.
Nick
You are presupposing what the defense arguments would be or possibly limiting the possible arguments to ‘either/or’. (That is: either they use it to show what type of person Mann ‘really is’ or they use it to show what Simberg and Steyn believed. But the can use it for both.)
The email should be easily admitted as something the defendants believed Mann wrote to Revkin and which affected their believe about Mann. That’s sufficient to make that email relevant to the defense case.
Once admitted, it’s admitted. They can ask Mann if he really wrote that. But the notion that Mann can block evidence that affected Steyn and Simbergs perception that he was a fraud merely because Mann doesn’t recollect? That’s wrong. It would be much too limiting to the defense to try to insist that Steyn and Simberg are only allowed to have formed notions about “truth” based on ‘facts’ Mann remembers. In fact: it would be too limiting to not admit these even if Mann categorically denies ever having written anything of the sort.
Beta Blocker — Every jurisdiction out there has “pattern jury instructions.” Usually they come in two volumes, titled: “Pattern Jury Instructions – Civil” and “Pattern Jury Instructions – Criminal.” Every state has them and I’m sure the District of Columbia does too. That’s the starting point.
The parties can always request custom instructions, or request that the instructions be modified. That’s an issue that’s often litigated in appellate court — whether the judge wrongly denied a request for instructions.
Boris writes: ” There is no email where he explicitly says that he will forward a request to others. But someone did delete emails if I recall….what was that person’s punishment?”
It’s amazing that someone who’s participated in this discussion as long as Boris is so obtuse to well established facts. As another commenter observed above, Mann told Jones that he would forward Jones’ destruction request to Wahl. While Mann’s forwarding email has not yet been made public, the NOAA OIG report interviewed Wahl, presently a NOAA employee, who said that he destroyed the emails. Wahl was not a NOAA employee at the time and the NOAA OIG therefore took the position that these actions were not subject to NOAA jurisdiction.
Briffa also destroyed emails following Holland’s FOI request. Muir Russell didn’t ask either Jones or Briffa whether they destroyed emails on the peculiar grounds that that would have been asking them to confess to a criminal act – peculiar given that the purpose of the inquiry was supposedly to determine misconduct. At the 2nd parliamentary hearing, Acton was asked about this lacuna in the “investigation” and made the surprising announcement that he himself had carried out his own previously unpublicized “investigation” of the matter and had determined that no documents had been deleted. This was untrue. In a subsequent FOI request, UEA said that they were no longer in possession of the attachments to Wahl’s emails to Briffa containing Wahl’s changes to the IPCC assessment report. So Briffa and Jones had deleted documents after all in response to Holland’s FOI request. Nothing happened to them.
Unless the NSA has copies of Wahl’s documents sent to Briffa that set out proposed changes to the IPCC assessment, all copies appear to have been destroyed in accordance with Jones’ instructions.
Re: Joseph W. (Feb 17 08:32),
Which is yet another powerful reason for engaging a team of competent and experienced litigation lawyers in managing your defense.
…though, as I commented before, the plaintiff could ask the judge for a “limiting instruction” — “Judge, no one’s authenticated this as my client’s actual writing. So I’m asking you to instruct the jury to consider it only for its effect on the defendants…” If the e-mails were admitted only for that purpose the judge might well give such an instruction.
Now how much difference that makes as a matter of practical advocacy is another matter. Maybe this is how I’d frame it in a closing argument: “So let’s look at this from Steyn’s point of view” [by saying that I’ve gotten around the instruction] “…Mann’s respected colleague refers to his hockey stick as a ‘trick’ to ‘hide the decline.’ Now to your average reader, ‘trick’ means ‘trick’ and ‘hide’ means ‘hide’! Like, conceal something from somebody. And if you look at this graph here, it really does hide it. So what’s he supposed to think? This other e-mail talks about ‘deleting all your e-mails,’ and look, here’s Mann saying he’ll forward that along right away. What’s Steyn supposed to think, except that these guys have something to hide? From Steyn’s point of view, are these guys acting like dispassionate seekers of the truth about nature, or like Richard Nixon withholding his tapes and trying to erase the worst parts? Okay, he doesn’t have much science education. But he’s been covering politics for a while, and when you see that kind of behavior, it’s got a familiar feel…”
The claim that the e-mails are “stolen” might cut in either direction. Thus, if you were litigating against the government and somehow got in some Wikil**ks documents, you might even use that to your advantage. “Yep, these were stolen. The government would NEVER have released this information on its own…because it was too embarrassing!”
Nick, Since you don’t believe me, here is what a lawyer-blogger stated: “The bar for establishing authenticity is not high under Federal Rule of Evidence 901. In the 3rd U.S. Circuit Court of Appeals, a court need only be able to legitimately infer that a document is genuine to find it to be “authentic.” Deeper questions concerning trustworthiness might go to the weight of the evidence. In “U.S. v. Safavian”, faced with a mountain of e-mails, the court refused to require detailed authentication.”
.
In U.S. v. Safavian, the court stated: ( Safavian, 435 F.Supp.2d at 41)
The defendant’s argument is more appropriately directed to the weight the jury should give the evidence, not to its authenticity. While the defendant is correct that earlier e-mails that are included in a chain — either as ones that have been forwarded or to which another has replied — may be altered, this trait is not specific to e-mail evidence. It can be true of any piece of documentary evidence, such as a letter, a contract or an invoice. Indeed, fraud trials frequently center on altered paper documentation, which, through the use of techniques such as photocopies, white-out, or wholesale forgery, easily can be altered. The possibility of alteration does not and cannot be the basis for excluding e-mails as unidentified or unauthenticated as a matter of course, any more than it can be the rationale for excluding paper documents (and copies of those documents). We live in an age of technology and computer use where e-mail communication now is a normal and frequent fact for the majority of this nation’s population, and is of particular importance in the professional world. The defendant is free to raise this issue with the jury and put on evidence that e-mails are capable of being altered before they are passed on. Absent specific evidence showing alteration, however, the Court will not exclude any embedded e-mails because of the mere possibility that it can be done.â€
Safavian, 435 F.Supp.2d at 41.” See discussion here: http://federalevidence.com/blog/2009/february/admitting-e-mail-evidence.
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Directly with respect to admissibility, the court stated: “1. Admissions of Party-Opponent
.
“The Court has read each of the e-mails with care and where it had questions about how to read them, the context in which they should be considered or who the senders or recipients were, it obtained clarification from counsel for the government during the hearing on May 16, 2006.5 The statements attributed directly to Mr. Safavian come in as admissions by a party opponent under Rule 801(d)(2)(A) of the Federal Rules of Evidence.”
JD
Joseph W.
I have no jury or court experience. But it strikes me that as a practical matter, the fact that the emails were widely circulated and Mann who is sufficiently ‘not passive’ to be filing a suit and yet never said he did not write them would make me tend to believe both that Steyn and Simberg were reasonable to believe Mann wrote them and that it’s likely Mann wrote something like that.
I think that– not withstanding a judges instructions– it’s very difficult for someone to decide whether people (i.e. Steyn and Simberg_ might believe Mann wrote that without considering whether the evidence actually suggests he wrote that.
I also tend to think the fact of: “Mann not denying having written that widely circulated email” itself has an “effect on the defendants mind”. It may be a “dog that doesn’t bark” type evidence, but “dog that doesn’t bark” evidence is rather famously familiar to people who read fiction or watch Sherlock Holmes episodes on PBS. So the fact that he never denied likely gets introduced into evidence on the “state of mind” arguments.
So we would end up in a place where:
1) The email is admitted.
2) The Jury knows Mann never denied writing them. (Possibly, we can show he never really even intimated he denied writing them. And so on.)
3) And, maybe as Nick Stoke suggests, Mann says he can’t remember having written that– or even outright denies it. Or maybe people aren’t allowed to question Mann on it. Or something.
But (3) is just non-evidence which might be puzzling to the jury, who wonders why Mann doesn’t say whether he wrote it or not but Mann’s lack of memory merely turns this into “non-evidence” and so that point favors neither side relative to knowing for sure whether he wrote it.
Heck, you can probably even show that loads of people who are not “on the defendants side” assumed Mann wrote it. Revkin is a reporter. I would guess he archives emails and may have checked after the CRU mails were received, and he never stepped forward to say “I archive emails, and I never anything like that from Mann”. That could contribute to Simberg’s state of mind. (And heck, Revkin might say he confirmed he received an email saying precisely that and he believed Mann wrote it. This of course would buttress the argument that people would tend to believe Mann wrote it– and that’s still all “defendant state of mind” stuff.)
Heck, this “state of mind” stuff can get a whole heck of a lot of stuff in. And Mann’s “lack of memory” would merely mean the jury is presented with stuff with Mann never rebutting the possibility that he actually wrote the stuff!
I think Steyn’s lawyers will argue that the plaintiff’s logic says that because of investigations that cleared him, people are forbidden from speaking ill of the plaintiff.
MJW:
We have no real idea of Mann’s state of mind here–but I believe he has addressed this point, yes?
SM:
I was setting a trap, which you ruined :(.
Right. So, to summarize:
Mann passed on a request from Jones to Wahl to delete emails. Wahl is not restricted by any employer and may delete emails. Wahl deletes emails.
Exactly how should Mann be punished here? Termination? Defenestration? Immurement?
MikeN–
That does seem to be the argument. But beyond that, the argument seems to be that no one can even think ill of him and so it must be the case that the defendants did not think (or believe) ill of Mann. Because that’s what Mann’s team has to show– if the US law is applied at it stands.
Link to first paragraph quote in comment 124572 that I omitted is http://www.depo.com/resources/aa_thediscoveryupdate/authenticating_email.html
MIkeN, Judge Combs Greene, whose rulings on Counts 1-6 , as I understand it, were adopted by Judge Weisberg, made the remarkable ruling that, in the wake of the various “investigations”, any criticism of Mannian statistics that “questions [Mann’s] intellect and reasoning” exposes the questioner to litigation and denies the questioner the recourse of anti-SLAPP legislation:
According to this ruling, even if a critic did not use the word “fraud” or equivalent in his criticism and restricted their criticism to questioning Mann’s “reasoning”, they are not entitled to anti-SLAPP protection. Read closely, it’s an astonishing ruling.
And well worthy of the derisive nickname I gave it before.
btw, the Nixon reference reminds me – Happy Presidents Day everyone!
Re: Joseph W. (Feb 17 08:32),
.
Here is the pattern jury instruction for civil cases for the District of Columbia:
.
DISTRICT OF COLUMBIA STANDARD CIVIL JURY INSTRUCTIONS
.
The instructions we received from the judge in the civil trial in which I served as a juror were very similar to the DC pattern instructions, plus there were a few easily-understood additions and modifications.
.
During the course of this civil trial, the lawyers on each side went out of their way to make everything as easy to understand and grasp as they possibly could, even to the point of oversimplification in some instances. These people were highly experienced litigation professionals and their respective courtroom strategies reflected that. For each facet of their argument, they gave us just enough evidence to support a particular argument, and no more.
.
At any rate, the standard pattern instructions are organized as follows:
.
FUNCTION OF THE COURT
FUNCTION OF THE JURY
SIGNIFICANCE OF PARTY DESIGNATIONS
UNANIMOUS VERDICT REQUIRED / JUROR’S DUTY TO DELIBERATE
FOREPERSON / VERDICT FORM / QUESTIONS
ATTITUDE AND CONDUCT OF JURORS
INSTRUCTIONS TO BE CONSIDERED AS A WHOLE
COURT’S COMMENTING ON EVIDENCE
COURT’S QUESTIONS TO WITNESSES
JURY NOT TO TAKE CUE FROM JUDGE
RULINGS ON OBJECTIONS
INADMISSIBLE AND STRICKEN EVIDENCE
EQUALITY OF LITIGANTS
EVIDENCE IN THE CASE
INFERENCES
STATEMENTS OF COUNSEL
JURY’S RECOLLECTION CONTROLS
BURDEN OF PROOF
EVIDENCE PRODUCED BY ADVERSARY
DIRECT AND CIRCUMSTANTIAL EVIDENCE
JURY TO DETERMINE CREDIBILITY OF WITNESSES
NUMBER OF WITNESSES AND EXHIBITS
EXPERT OPINION
DEPOSITIONS AS EVIDENCE
IMPEACHMENT BY PRIOR INCONSISTENT STATEMENTS
NOTETAKING BY JURORS
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Basically what these instructions say to the jury is this: Here is the framework and here are the guidelines you need for making your decision. Please follow these instructions to the best of your ability, individually and collectively; but when it’s all said and done, you guys and gals of the jury run this show. Please do your sworn duty as jurors, and have a nice day.
Lucia the “Read More” link into this thread appears garbled.
redc,
Thanks. I think I fixed it. Let me know if you still see a problem.
Carrick (Comment #124505)
February 16th, 2014 at 7:56 pm
“I’m a bit puzzled about Wahl’s comment though. I believe low-frequency noise is going to give you an excess of false positives, not false negatives. The reason we usually apply more than one test is so we can eliminate spurious verification, not to avoid spurious fails to verify.”
The lower versus higher frequency response of a proxy to temperature is not sufficiently discussed in temperature reconstruction papers and is a dilemma for those doing reconstructions. Forgetting for the moment for this discussion that using a proxy selection after the fact of measurement is simply and basically wrong, one runs into the problem with low frequency validation of obtaining, as Carrick notes here, spurious results and particularly when a series has a higher degree of autocorrelation. However if the major reason for doing temperature reconstructions is to look at temperature trends then low frequency becomes more important. Looking at higher frequency correlations such as the authors of the Australasia reconstruction erroneously thought they were doing was their way around selecting for spurious correlations. Of course in their original attempt they reported results for detrended (higher frequency) selection results that were instead not detrended and included the lower frequency response of the trend.
It is, I would suppose, nice to think that the proxy would ideally follow the annual/seasonal ups and downs of the local temperature and thus better validate the proxy as a thermometer. Unfortunately a proxy can respond approximately in that manner over the instrumental period and yet get the trend in modern temperatures very wrong. That is an issue in the divergence problem. I had to prove this point to myself using the corgen function in R to generate highly correlating series with very different trends.
The appropriate part of this discussion would be determining whether Mann and some other climate scientists doing temperature reconstructions understood this problem sufficiently to clearly discuss it in their papers and then deliberately failed to discuss it because of overwhelming commitments to their advocacy in this matter or that they did not sufficiently understand the problem. I would have to qualify the not understanding alternative to the tendency of the advocate/scientist to look no further when they think they have a result supporting their advocacy position. The deception then can be deceiving oneself and/or deceiving others.
Boris asks:
Boris, there are a couple of issues here. As you observe, it is evident that Mann “participated” in a scheme under which Wahl deleted documents. The question in the terms of reference to the Penn State Inquiry Committee was:
The answer to that question was Yes. (The Penn State Inquiry Committee negligently failed to even intervene Wahl, among its other neglects.)
Whether Penn State regards Mann’s participation as serious or minor is a different issue. In the wake of Climategate, I, for one, did not urge that the parties be drawn and quartered. My moderate position on this point received a very lukewarm reception at Heartland in 2010.
But whether the consequences are serious or trivial, the Penn State Inquiry Committee’s finding on this point was unjustified on the facts known to thousands.
btw, Lucia, I think you have a sound grasp of the issue. But if it were I, I’d go with “simple.” Let Steyn and Simberg themselves testify about what they found on the Internet…
“So what made you think these emails were genuine?”
“Well, in part, because the people who wrote them are very active online, and they didn’t deny them. I mean, when Gleick came out with the fake Heartland memo, Heartland immediately said, ‘This memo is fake.’ And they proved it in short order.
“These climategate guys, instead of doing that, they complained: ‘These emails are stolen! You shouldn’t be reading them! Stolen, hacked, hacked, stolen!’ And then when people read them anyway, they started excusing everything in there. ‘Trick doesn’t mean trick and hide doesn’t mean hide when you’re doing science.’ They got really self-righteous on the subject. But they never out-and-out denied the e-mails were real.”
“And how did that look to you?”
“Like spin. Like something a politician would do if something embarrassing came out, and he was afraid people could prove it.”
“And what did that suggest to you about their conduct as scientists?”
“Well, I’m not a scientist myself, but these guys weren’t acting like Edward G. Robinson in Dr. Ehrlich’s Magic Bullet or Paul Muni in The Story of Louis Pasteur. They were acting like something out of All the President’s Men. And when I see cover-ups and spin and ‘hiding things’ and ‘redefining peer review’ and all the rest of it, I start to think, someone’s trying to deceive us, here…”
“And specifically, about Mann?”
“He promises to forward the e-mail about deleting evidence to hide it. And his buddy says his paper in Nature includes a ‘trick’ to hide something. Of course I think it’s fake. And a scandal.”
…and if the other side disputes that, then you rebut with the evidence about Revkin etc. (Though I suppose you could bring it in on Mann’s cross…”You’ve written about these emails before. You’ve never said they were fake. So, nothing of yours that Mr. Steyn has read would say ‘Don’t believe these emails – they’re fake.'” etc. etc.)
Steve McIntyre (Comment #124578)
February 17th, 2014 at 9:57 am
[the judge]
“To call his work a sham or to question his intellect and reasoning is tantamount to an accusation of fraud (taken in the context and knowing that Plaintiff’s work has been investigated and substantiated on numerous occasions).”
[SteveM]
“According to this ruling, even if a critic did not use the word “fraud†or equivalent in his criticism and restricted their criticism to questioning Mann’s “reasoningâ€, they are not entitled to anti-SLAPP protection. Read closely, it’s an astonishing ruling.”
This has been my biggest issue with this case: What will allowing this case to go forward do to the discussion of AGW and the related science. What are the opinions on this more basic issue of the case from members of the climate science community? I know it is a cliché but the continued silence could become deafening.
JosephW
That’s sort of what I’m thinking. The defendants side doesn’t need to say much. They don’t ask Mann if they are true– just whether he ever thought to let people know that he did not write these emails.
My discussion is only complicated because I’m thinking of the range of things that would likely go through the minds of the jury depending on what happens. It seems to me if they are introduced (which will be entirely up to the defendant) the line of evidence will go more or less as you say. After that: no matter what the judge instructs or how he instructs it, at least some of the jurors (and I expect most of them) will consider it rather likely Mann did write them. Moreover, Mann “not remembering” whether he wrote them because it was “so long ago” probably won’t be considered evidence he did not write either those exact emails or something quite similar. Beyond that: the jurors will be familiar with business emails, and so on. They will know that lots of people save emails and that “no denials” by anyone on the climategate hit-list will suggest the emails are — on the whole– true.
Heck, one of my emails to Gavin is in there. It’s accurate. I sent it. I suspect Mann’s side would be unable to find a single person who can testify that an email that includes their name is fake. Because, in fact, it’s a collection of true emails!
Readers may be interested in a forthcoming internet discussion at /r/science at reddit.com on Friday 21st February. Prof. M. Mann will be holding an ‘Ask me Anything (AMA)’ session at 2p.m. EST. Bring your own beer and popcorn.
Manniac,
Could you tell us more about how we watch that?
Re: Steve McIntyre (Feb 17 09:57),
By that logic, Pauli’s famous “not even wrong” criticism would be actionable. Apparently the judges are not aware of the tradition of polemics in the scientific literature. Not all journals allow them, but they can be quite entertaining.
Meanwhile, according to Gavin, the final IPCC AR5 report is now online:
.
http://www.climatechange2013.org/report/full-report/
I think Nick Stokes mistakenly thinks his Racehorse style is more effective than it actually is because he uses and likes it, so everyone else prolly does too, when a master does it.
Andrew
I think a lot of people are missing the context here. The judge is under the impression that Mann’s work is something equivalent to Watson & Crick and has been thoroughly and completely confirmed by real investigations. Obviously, that is not the case.
.
He probably views Steyn as a mean spirited, dishonest, juvenile twit because the judge doesn’t really doesn’t understand how flawed Hansenite climate science is. So, in his mind, the question is whether there are any limits on the ability of a dishonest twit to smear Mann. That is why I have been banging the drum for attacking the so-called investigations as well as showing the many flaws in Mann’s work. Once the aura of scientific distinction is punctured, things should change.
.
Would also note that the D.C. Courts and legal environment may not be as bad as many here assume. D.C. itself, has filed a good amici brief in support of Steyn and its anti-Slapp law. Additionally, Judge Combs said that the evidence hadn’t shown clear and convincing evidence of malice but that she would allow discovery to proceed to determine whether malice could be proven.
.
Assuming SteveMc is still reading, I would suggest to him that if he is contacted by defendant lawyers for a statement that he may want to let them know that he was number one in Canada on the high school math exam. This should give him instant and high credibility with the courts should he decide to make a statement. I read his blog quite often and wasn’t aware of that accomplishment even though I knew he had been accepted into MIT. (Of course, any lawyers who would contact him would make their own judgments [more informed than mine] as to what information would be contained in any statement that SteveMc may agree to sign.)
,
Additionally, I tried to find the amended complaint filed by Mann, but couldn’t. If anyone could provide a link, I would appreciate it.
JD
Nick, while I appreciate your comments on the other side of most discussions, I now know why Steve refers to you as “Racehorse.†Contrary to what you seem to believe, emails are easy to authenticate and get admitted. It won’t matter if Mann says “I don’t remember,†“I can’t swear under oath if this is what I wrote word for word because it was so long ago†or some permutation thereof. The court most certainly does not “need to hear from Mr. FOIAA.†Now, it might matter if Mann actually denied under oath that he was the author of the emails and they were fake, etc., which he isn’t going to do because they aren’t, even then there are other fairly simple and straightforward ways to get them authenticated and admitted where they could be discussed and challenged before the jury. And, even were the emails in fact forged/faked they still would come in under Lucia’s and others theory of them being grounds for the defendants’ no actual malice defense. Here is but one of many decent discussions of the email authentication issue: http://www.jha.com/us/filemanager/internet_email_social_media_evidence_part_2.pdf
JD Ohio (#124594) –
The amended complaint may be found here.
[Edit: Perhaps a better link.]
JD – My concerns have been more with the D.C. jury pool as opposed to their “legal environment.” Nothing I’ve read about D.C. voting or employment patterns is encouraging.
On the other hand, whenever I’ve had to drive there, I try to make extra allowance in case there’s a street protest or Million Something March in the way…and every time I took a boat tour on the Potomac, they pointed out the Watergate Hotel as a D.C. icon. So maybe the jury will understand the free speech and cover-up issues, and make a principled decision, even while detesting the defendant. I just wouldn’t bet my life savings (or a client’s) on it if I didn’t have to. A case with ideological content is bad news if you want a just result.
btw, SteveMc reveals here the full extent of his involvement so far.
Re: JD Ohio (Feb 17 14:50),
The sad thing is: that shouldn’t matter, well, maybe the dishonest part. However, either anti-SLAPP laws mean something or they don’t. If they mean something, then this should have been an open-and-shut dismissal. A dismissal ruling that the filing was frivolous, given what should have been a high probability of dismissal on anti-SLAPP grounds, shouldn’t be out of the question either.
DeWitt — “Frivolous,” in a lawsuit, is an extremely stringent standard. It’s important because a lawyer who files a frivolous suit or motion has violated legal ethics, and may be disciplined by his bar association for it. He might even lose his law license.
Basically, if you have any kind of support for your claim — even if that support is “yes, the Supreme Court has already said my claim fails, but I think they should change their case law to make my claim work” — then you’re not frivolous. Mann’s basis for claiming malice is terrible, its implications awful, but I can’t call it “frivolous.”
(As an example, if you ever read an appeal brief in a death penalty case you’ll see the defense raising dozens of issues that are specifically and explicitly disallowed by Supreme Court case law…which they do precisely because the Court might change its mind on those issues before the execution takes place. But if you don’t raise an issue, you waive it, so they raise them all and the briefs are novel-length monstrosities.)
Dewitt: Public figures need some kind of protection from the really malignant people out there who would accuse public figures of horrendous things if public figures didn’t have some sort of limited right to sue. I don’t agree with the rulings so far, but I don’t think they are ridiculous either; It is understandable that courts would like to protect someone they [wrongly] view as a distinguished and fair-minded scientist. Let’s see what happens when defendants have a chance to present their side of the case, if it comes to that.
.
JD
Harold W. Thanks for the links.
Joseph W. and JD Ohio,
Then SteveF is correct and anti-SLAPP laws aren’t worth the paper they’re printed on. At this point, Mann has won even in the extremely unlikely event that the case were dismissed tomorrow. The prospect of hundreds of thousands of dollars of legal fees will have a chilling effect on criticism of any bad science.
I don’t see that. McIntyre and many others, as has been pointed out, have been criticizing Mann for years, but don’t find themselves facing a lawsuit.
DeWitt, I don’t see it that way because, if the appellate court rules that the case should’ve been dismissed, that will create a precedent that puts paid to Mann’s argument, and ensures that future cases will be dismissed a lot faster. Without the need to spend near so much.
RB — If, heaven forbid, the appeals courts uphold his current theory of defamation…we might see a lot more suits like this. (Or more likely, a lot of “cease and desist” letters being obeyed for fear of being sued, or people on the unpopular side of any Green debate simply toning it down, while the people on the other side continue unabated….)
Any way you look at it, this is a test, and a vitally important one.
Re: the climate discourse, there was this other incident of false accusation followed by a threat to sue and a retraction. Guess things worked out differently in this case.
The Deepclimate post says it’s been “revised” so I don’t know what the original accusation was or how it compares. Do you know?
DeWitt,
“anti-SLAPP laws mean something or they don’t”
.
It seems pretty clear that they don’t mean very much. The rulings in this case, and the already huge legal costs, make that plain. Can a meaningful anti-SLAPP law be written and enforced? I am beginning to think it is impossible within the history of USA jurisprudence; the personal cost of this case for Mike Mann is likely near zero. So long as there is no large downside (financial or legal) for filing SLAPP cases, they are effective and are going to be filed. Judges simply are not going to disenfranchising public figures like Mike Mann…. especially when it is someone who advocates for things they agree with politically. (That may sound jaded, but I thing ‘experienced’ may be a better adjective.)
Joseph W, sorry don’t remember exactly, but I think that it was something along the lines of implying a secret collaboration in authoring the Wegman report ..
Some here appear to believe that the handling of Mann vs Steyn et al is unique. There is a blog that. might inform you on that:) Particularly interesting is Burke vs. Zujua (see the link)
Eli, there have been several links to that weblog in these discussions already.
But nothing we’ve seen on it so far indicates that Mann’s “backdoor sedition act” theory has ever been upheld in any other case. Was there something else specific you had in mind?
Joseph W. (Comment #124604),
Based on the current composition of the DC Court, the chance of an anti-SLAPP dismissal at the appellate level seems vanishingly small. Could happen, but I would guess the chance at 5% or less…. the judges assigned will be majority Democrats.. if not all Democrats! If the Supreme court took up the case on appeal and overturned, that would change things…. but the chance of that happening is, IMO, miniscule. For all practical purposes, this case shows that anti-SLAPP laws are useless.
JD comment 124594
Steve Mc has more to say.
http://climateaudit.org/2014/02/17/mann-and-the-oxburgh-panel/
SteveF — Let’s wait and see. Let me tell you one thing you may find comforting:
In the news, when you read about Supreme Court opinions (I know it’s a different court), it sounds as if their decisions are all 5/4 splits, with “conservative” and “liberal” members voting on predictable lines and a “swing” vote deciding the issue.
But when you research them day by day for issues in briefs…you find most of them are unanimous 9-0 decisions (see this story); and even the ones that aren’t are often 8-1. On matters of pure legal analysis, not everything breaks down on ideological lines…and even a judge who sympathizes with one side will vote for the other. Falwell v. Hustler, which we’ve talked about once or twice in these threads, pitted a hate-figure for the Left against a hate-figure for the religious Right — yet it was a unanimous decision.
Here, MJW and I (and probably some others) think the trial court has been way off base in light of some well established First Amendment case law. So don’t be too sure that an appellate court is going to break down on partisan/ideological lines in a case like this.
JD Ohio (Comment #124600),
I think you miss the point. If a case like this can even possibly go past an initial hearing, then anti-SLAPP laws are useless, because it is the trouble and the giant legal fees which make SLAPP suits effective. The final outcome matters not at all. Anti-SLAPP laws are without teeth… so they accomplish nothing.
.
Punish people who file SLAPP suits with large court imposed fines, make them pay all legal fees for both sides, and add automatic damages of three times the defendant’s total legal fees, and these suits would disappear. I don’t think that can be done within US law.
JD Ohio (Comment #124572)
In Safavian, you quote the court saying:
“Absent specific evidence showing alteration, however, the Court will not exclude any embedded e-mails because of the mere possibility that it can be done.”
The issue was emails embedded within emails. But there at least they knew who had been handling them.
In this case, the emails were stolen from UEA by Mr FOIA, who clearly has an agenda hostile to Mann. He kept them for some weeks, sorting and altering. The alterations were said to be benign – redactions to remove personal information, email addresses etc. But altered they were (though with little benign effect). I think even the 3rd Appeals Court would be less trusting there.
RB
I agree with you. But people will likely be careful to avoid saying “fraud” or using more flowery extreme language. I think the court is wrong to think “torture data” is a factual claim, but it’s that sort of flowery language that’s going to get cut back.
SteveMc doesn’t use language like that.
Joseph W, basically DeepClimate made the claim that Donald Rapp had “ghost written” (not the exact words used) much of Wegman’s report on his behest.
As far as I can tell, it was trite, idi*otic nonsense, and only a few maroons ever took it seriously.
Sadly this group that includes DC and John Mashey, seem to think the appropriate way to respond to technical criticism is by personal attack and smears. You know, the very thing they hate about “the other side”
Nick,
The court may ask Mann for specific evidence showing alteration. That’s hard to give if he merely says he might have written it but doesn’t remember.
Beyond that, that issue won’t keep out stuff that’s being presented to show how Steyn and Simberg reasoned to form the notion that Mann “molested and tortured” data and so on. Because with respect to that it doesn’t matter whether Mann sent them. It only matters that they were in the CRU batch, many people believe Mann sent them, and — as icing on the cake– Mann never denied sending those emails.
Mann is on the record
http://climateaudit.org/2011/03/10/what-did-penn-state-know/
Should he deny that now it would open up some interesting options with regards to prior document productions and to current documents being reviewed. not to mention documents held but currently not revealed.
But Maybe Mann will listen to Nick. defense lawyer extratrodinarie
There is still another reason why he cant deny them, wont deny them and would deny them at his legal peril. That would be huge fun
Lucia, I made the distinction about between academic fraud and other types of academic misconduct, that fraud implies purposeful misconduct for the purpose of some immediate and substantive gain.
People can commit misconduct, like fudging the Gaspe data to keep it in the network as Mann did, without seeing this as their road to future glory and acclamation.
That said, I can see lay people not making this sort of distinction. And in fact, if you search for >mann “fraudulent data”, you get over 14,000 hits for it.
There are certainly a lot of people out there besides Mark Steyn who is convinced Mann committed fraud, and even if the charge made by Steyn is false, defamatory and actionable, is there really any perspective that this could ruin Mann’s already not very good reputation?
JosephW,
“In the news, when you read about Supreme Court opinions (I know it’s a different court), it sounds as if their decisions are all 5/4 splits, with “conservative†and “liberal†members voting on predictable lines and a “swing†vote deciding the issue. ”
.
Yes, this is clearly true for cases that are not politically important. For politically important cases, they usually do split along party lines (or if you prefer, philosophical lines)… leading to absolutely bizarre contorted opinions (on both sides!) to avoid ‘undesirable’ political outcomes in important cases. Which is why there are so many political fights associated with Supreme Court appointments…. these folks matter, politically, a lot! (see Gore V Bush). They can rule any way they want if they have four others in agreement, including ignoring the plain meaning of the words in the Constitution, whenever that is politically convenient (AKA the ‘living Constitution’ or ‘it means whatever we want it to mean’ or Kelo v New London). If Mr. Obama gets to appoint two justices to replace two of the conservatives, you can count on the court promptly reversing some politically important cases… like Citizens United. Sorry if this sounds jaded, but it has been my observation.
Carrick
I don’t think so. And with respect to people who support Mann, the claims of fraud won’t make any difference either. Nevertheless, people don’t like the monetary risk or inconvenience of law suits. If Mann wins, at least some will moderate their tone. Mind you: that won’t be commenters or small bloggers. But online periodicals with pockets will moderate their tone.
SteveF:
If not President Obama, then the next president certainly will do so.
Given that the Republican Party is not much more united than this cat, I see a very dim prospect for a rational challenge from the right, for some time.
Nick Stokes:
I’m pretty sure the unaltered versions are available to. I don’t think you’re right on this one wrt admissibility, but you’ve certainly repeated the your point enough times by now. Anyway, I think we all get what you’re claiming. 😛
RB (Comment #124603),
The difference is that Steve McIntyre’s audience is not mainstream, and his critiques are fundamentally technical (although outright false statements by certain individuals are regularly pointed out). I would venture not 1 person in 50 can appreciate (in a technical sense) what Steve McIntyre writes at his blog, and not 1 in 100 of those cares enough to actually read Steve’s blog (which is not a critique of the blog, only an admission of reality). Steyn is more politically important because his audience is ‘mainstream’, not the 1 in 5,000 or less who might read a technical blog like Climate Audit. SLAPP’s are political tools; Steyn and the organizations who publish his writing are political targets. Maybe it would be instructive to find out who is funding Mike Mann’s SLAPP case against Steyn et al; it sure as heck isn’t Mike.
lucia (Comment #124618)
“The court may ask Mann for specific evidence showing alteration.”
Easy – the emails have marked redactions.
But you seem to think that Mann has to establish that the text is invalid. No, the defence has to convince the court that the text is an unaltered version of the original email, or if there are marked alterations, that they are the only ones. They may turn to Mann to try to get him to say so, but if he can’t, they have drawn a blank.
Nick Stokes (Comment #124626),
I think they can call on anybody who received the original or a forwarded copy to verify no substantive alterations. Are you (Nick) seriously suggesting that someone strategically altered Mike Mann’s email’s in anticipation of this lawsuit? Note also that many emails are ‘internally corroborated’ because copies of copies of copies are forwarded among the ‘team’ members.. hard to imagine that FOIA had the wherewithal (or time) to track down every one of the copies of copies and make the exact same alterations on each.
Nick, how do you know Mr FOIA’s agenda is hostile to Mann?
The Wegman Report was also a government commissioned investigation into Mann, and it seemed to lean towards supporting Steyn.
Nick
Yep That’s not only what I “seem” to think. That’s what I actually think. I think that’s what the plain meaning of text you quoted. I think so even if you say “no” and claim otherwise. So: what I’m saying is your interpretation is just wrong.
Lucia writes: ” I think the court is wrong to think “torture data†is a factual claim, but it’s that sort of flowery language that’s going to get cut back. SteveMc doesn’t use language like that.”
While I haven’t personally used the term “data torture” at Climate Audit, I’m actually a little surprised that I haven’t, since the term aptly describes many of the phenomena that I’ve criticized. Although I haven’t personally used the term at Climate Audit (to my knowledge based on a quick search), I have not regarded use of the term by commenters as a breach of CA policy against use of the word “fraud” and there are many comments using the term “data torture” or variant.
While I haven’t used the term at Climate Audit, I used the term in a comment here http://rankexploits.com/musings/2009/tricking-yourself-into-cherry-picking/#comment-21944 at Lucia’s about Mann et al 2008:
Lucia will have to watch out as well.
MikeN (Comment #124628)
“Nick, how do you know Mr FOIA’s agenda is hostile to Mann?”
Stealing his (and others’) emails and dumping them on the web is not a friendly gesture.
SteveF (Comment #124627)
“Are you (Nick) seriously suggesting that someone strategically altered Mike Mann’s email’s in anticipation of this lawsuit?”
No. I’m pointing out the difficulty of getting them admitted.
But time will tell.
Steve Mosher,
“There is still another reason why he cant deny them, wont deny them and would deny them at his legal peril. That would be huge fun”
.
You are too coy by half. Do tell us what that legal peril might be.
May I ask a simple question;
did Mann ever publish a figure where he made use a fusion of both a proxy-reconstruction and a ‘thermometer’ measured temperature series, and then perform multi-year averaging, so that the average at the right hand side consisted of both proxy-reconstruction data and ‘thermometer’?
If so, was the running mean presented as the average of the proxy-reconstruction AND was this procedure described in the Methods section of the published paper and its supplementary?
Mann often used R2 or verification RE statistics that are so low (like R2=.05 or .1) that I consider any model with that R2 to be useless.
The practice of separately modeling the different time periods (eg, the 1400 period) is a desperate attempt to stretch out the data available and makes no sense to me.
The peak of the MWP is probably just before 1000AD, thus choosing “the past 1000 years” is much too convenient.
Mann is pretty clearly a public figure who slings insults with the best (worst) of them. The judge should have thrown this out on that basis from the start.
Question for legal types: if someone pays your legal expenses (not pro bono service, but out of a political fund), is it income?
Re: Nick Stokes (Feb 17 18:42),
Not at all. It’s what Steyn read that’s important and who he thought wrote it, not whether Mann actually wrote those exact words, that makes the emails admissible. Mann has to prove that Steyn,et.al. believed at the time that the emails were actually false documents to prove malice.
Well, he did hack Mann’s website. And he apparently thought the data wasn’t “real” and he was saving the poor or something. It’s hard to get into the mind of a criminal, though.
Is it possible CEI deliberately wrote a provocative post to draw a lawsuit? There is a quote available from Myron Ebell that we would like to get this into court to put the science on trial.
JD, you would have to establish a little more about the high-school math exam, as to how difficult this is. For example, lots of people get 800 on SAT Math.
Craig Loehle (Comment #124637)-My father happens to be an accountant, he generally can answer any tax related question. He answered in effect that it could be, it would depend how it was set up.
Craig Loehle (Comment #124636)
“The peak of the MWP is probably just before 1000AD, thus choosing “the past 1000 years†is much too convenient.”
Mann agrees:
I think that trying to adopt a timeframe of 2k, rather than the usual 1k, addresses a good earlier point that Peck made [with] regard to the memo, that it would be nice to try to “contain” the putative “MWP”,
And they did.
Re: MikeN (Feb 17 20:05),
You need to define which SAT Math test. More than 10% of the test takers scored at 800 on the level 2 math subject test, but those who take the level 2 test aren’t your average college bound high school student. They’re the ones trying to get into MIT or Caltech. Meanwhile only about 1% of all test takers of the level 1 math test scored an 800. The median score for the level 2 test was 644 according to a chart published on the College Board web site.
‘He answered in effect that it could be, it would depend how it was set up.”
Perfect answer for a tax accountant 😉
buck smith (Comment #124646)-Don’t blame the people who sell household security systems, locks, and so on, for crime.
Craig Loehle: I am certainly not a tax expert, but a google search returned the following, which you can use as your first step in analyzing the problem. http://www.mwe.com/info/pubs/CBR_1010.pdf It states on p. 427 that: “Attorneys’ fees and costs are generally taxable to the claimant.
. As a general rule, attorneys’ fees are taxable to the
claimant, even if the claimant owes these amounts to
another or the payment is made jointly or separately to the
claimant and another person. Treas. Reg. § 1.6041-1(f).” This is in terms of a settlement agreement. Your situation may be different, and I would encourage you to get the advice of a real tax pro. You could also try going to a tax forum or a legal forum and see what they say. (Please verify it because sometimes the info on those forums is not correct.)
Have an idea why you asked the question. Good luck.
JD
Mike N. Don’t know. SteveMc’s resume on line states he was No. 1 in Canada. Am assuming that he was the only one, but not sure. Would mention that Adrian Oceanu is a frequent realist commenter on Dotearth and a professor at Penn State, and he was number one in the world in a high school math olympiad. It seems like talent in Math goes along with climate realism.
JD
In response to the comments about my high school math competitions, it was the high school math olympiads that I was talking about, not SAT. Like anything else, there are levels and levels of accomplishment and Oceanu’s accomplishment ranks well above mine. But I was proud of the accomplishment at the time and remain proud of it.
I wrote four high school math olympiads from 1962-65 at ages 14-17. The contest that I wrote at 14 years old was important for me. Mike Spence, an actual Nobel prize winner (in economics), was at my high school and was 3 years ahead of me and probably 4 years older. He was very accomplished – not just academically, but on the football and hockey teams and school captain as well – a great role model for younger students. We both wrote the 1962 contest, but I finished ahead of him – a result which attracted interest at the school at the time.
About 15 years ago, I noticed (and bought) a book containing the problems from the math olympiads in the 1960s. I wouldn’t be able to compete with the 14-year old me, let alone the 17-year old me. But I write better now (and could probably compete with the 17-year old me in doubles squash, though not singles.)
I’ve mentioned my other contact at the time with a subsequent Nobel prize winner – when George Stigler threw my golf ball into the woods on the 11th hole at Muskoka Lakes Golf Club when I hit it onto the green while he was putting.
JD Ohio, his name is Ocneanu, not Oceanu. He is consistently ranked one of the best math professors at Penn State. Here is a video of his 4-dimension sculpture.
http://www.bing.com/videos/search?q=Adrian+Ocneanu&FORM=VIRE4#view=detail&mid=203BF217591934486DD3203BF217591934486DD3
http://www.youtube.com/watch?feature=player_embedded&v=viKTj78ge-0
Lucia (comment-124589)
I’m guessing that a link/post will be created on the day. Here’s one for an ‘AMA’ Kerry Emmanuel did on 13th Feb – ie. not much different to blog commenting.
It seems that Steyn is reading Climate Audit and the Blackboard.
The Unexonorated Mann
Will J,
I think he’s reading ClimateAudit. SteveMc’s excellent article will be very helpful to the defendants legal team.
It’s seems weird to argue on one Hand that the British investigations didn’t look into Mann’s work AND that they found his statistics wanting. Either they looked at him or they didn’t.
Also, it would be helpful if Hand was actually specific–if he had evidence that the hockey stick was exaggerated, that would be entirely new information, it seems. No one that I know of has quantified the effect. A link to his detailed analysis would be appreciated as I can’t find it
Boris,
There is nothing weird about what SteveMc actually says.
First, what SteveMc actually says is
The reason you find it odd is that– for some reason — possibly skimming– you are reading “did … not exonerate Mann” into “did not look into Mann’s work”. But of course, “not exonerating” is not the same as “not looking into”.
They did an investigations of allegations against CRU and made determinations of facts against CRU. In the process, they looked at side issues touching on CRU and that happened to involve Mann’s work. In the process of looking at Mann’s work, the found it wanting. However, as Mann’s work was not the focus of their investigation they made no formal findings about Mann’s work. But the did make public statments about it and those statements derogated Mann’s work.
So it appears:
1) They did not exonerate Mann. (As SteveMc said.) and
2) They made public statements derogating Mann’s work (As SteveMc said.)
However, as you observe it would be weird for them to do (2) if they did not even look at the work in any way shape or form. But SteveMc didn’t say they didn’t look at it. You just seem to have dreamed up that clai in your mind.
With regard to “torturing data”, the concept has been around in academia for more than 30 years:
http://www.barrypopik.com/index.php/new_york_city/entry/if_you_torture_the_data_long_enough_it_will_confess
The origin of the phrase (in several different versions) seems to be attributed to Ronald Coase, a (genuine) Nobel Prize recipient for Economics in 1991. It has been quoted in books and journals on numerous occasions. That anyone would think it was a “factual claim” is simply ludicrous.
Yep, saying that somebody’s torturing data is just an opinion.
But even if torturing data were a factual claim, it still wouldn’t necessarily be a claim of fraud, since you could “torture or molest data” without intending to commit fraud.
Incompetence will do.
(I find Steyn in this article to be remarkably unfunny, amusing or even interesting, and perhaps even disgusting, but still this observation seems obviously true.)
The judge took a position well beyond extreme, even to the point of gross incompetence, to come to the conclusion that “torturing or molesting data” could reasonably be considered by a jury to be a claim of fraud.
I just want to note–because it might not happen again–that I agree with Carrick.
Re: Carrick (Feb 18 08:41),
.
Mann is not incompetent. He is a market savvy science entrepreneur who is custom-tailoring his science analysis products in a very intelligent and very clever way to serve a very specific need in a very specific scientific marketplace, and that marketplace is the need of the paleoclimate community to discount the intensity and extent of the Medieval Warm Period.
.
Mann is giving his customers in the paleoclimate science community a science product which discounts the intensity and extent of the WMP while still having the look and feel of Real Science — exactly what those customers need to secure and strengthen their market niche inside the Global Warming Industrial Complex.
.
Mann is a well-compensated cog in a larger enterprise, and his behavior in defending his hockey stick is just what we should expect of a savvy entrepreneur who not only defends his products from public criticism, but who also seizes opportunities such as the one presented by Steyn’s opinion piece to further promote both himself and his product inside his market niche.
@ Boris (Comment #124659)
So are you comfortable with the implication that rather than injury, it could be a matter of opinion?
The more I read the Judge’s assertions and stipulatoins in this, the more I question the Judge’s ability to run a fair trial. If the starting point in the Judge’s mind is that Mann is wronged and innocent, then the Judge is demonstrating a remarkably closed mind.
“Is it possible CEI deliberately wrote a provocative post to draw a lawsuit?”
Simberg wrote the post on a CEI blog, and Simberg is not exactly a calm and calculating type. CEI relatively quickly deleted the most provocative parts. So no, that does not appear too likely.
What Boris said.
I see that Steve McIntyre has a post now on climateaudit, _and_ he mentions the possibility of his direct involvement in the lawsuit. My mind boggles. Just imagine McIntyre on the witness stand, telling his full story of dealing with a decade of duplicity. Exactly what didn’t happen at all those awesome investigations. All the people who don’t read climateaudit might get to see it on the front page.
Forget about all the jumping up and down at the possibility of “discovery”. I think this would have a far greater impact on much more of the general public. A lot of people on both sides are following this trial, and this could be a real big shock to many of them.
I also think that Mann would have to be out of his mind to let it happen. Simberg and Steyn didn’t harm Mann in any way at all; this could utterly destroy his reputation.
Eli
I just want to be sure I understand. Are you agreeing with Carrick in Carrick (Comment #124658) . If so, we are approaching some sort of rare astrological event. We may soon see all the planets in the solar system are aligned on this one sub issue!!
Perhaps Eli spends too much effort blogging and not enough teaching chemistry.
http://www.ratemyprofessors.com/ShowRatings.jsp?tid=543236
Curious if Joseph W or others have an opinion as to whether Rob Wilson’s “crock of sh**” comment comes in at trial. See http://www.bishop-hill.net/blog/2013/10/21/wilson-on-millennial-temperature-reconstructions.html Wilson undoubtedly doesn’t want to testify in person and his statement was made after the lawsuit was filed, but I am wondering whether it could get in as justification for not issuing a retraction after the lawsuit was filed.
JD
What, a solar-planetary theory? 😉
Nick Stokes: “In this case, the emails were stolen from UEA by Mr FOIA, who clearly has an agenda hostile to Mann. He kept them for some weeks, sorting and altering. The alterations were said to be benign – redactions to remove personal information, email addresses etc. But altered they were (though with little benign effect). I think even the 3rd Appeals Court would be less trusting there.”
.
You need to read the opinions of the various courts. The district court opinion stated that emails of a party opponent could be admissible simply by looking at the format and the back and forth between the senders. There is nothing unusual about those factors. Also, Penn State, Mann’s employer, reviewed the emails (thereby essentially authenticating them) in its whitewash and Mann didn’t object to the accuracy of the emails. An alternative ground is adoptive admissions.
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One court stated: “Federal Rules of Evidence 801(d)(2)(B) provides that a statement is not hearsay if the statement is offered against a party and is a statement of which the party has manifested an adoption or belief in its truth The burden of showing the manifestation is on the party offering the evidence.” http://definitions.uslegal.com/a/adoptive-admissions-rule/
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Mann and others have repeatedly commented on Climategate matters and they have undoubtedly adoptively admitted the Revkin email — in addition to it being a party opponent statement. Mann by saying that the Penn State inquiry cleared him, which very specifically examined his climategate emails, adoptively admitted the Revkin email.
.
The answer on this matter is so clear that I am done commenting on it. I know you will have some sort of reply, which is fine. Can only say that I hope some day that you are in court representing yourself and you follow your own advice and thinking. You will have an interesting experience.
.
JD
JD — As you point out, the comment was made “last week” in October 2013, so it doesn’t come in for “effect on the listener” in making the original “offending” comments (as could the juicier Climategate emails).
I see what you’re driving at — they could try to make it relevant to damages (“Mann’s work is getting sharply criticized all over, not just by me, so my words haven’t hurt him much”) or mitigation (“Here’s why I’ve gone on saying what I said before, and my failure to retract is not so bad”). But at minimum the judge could apply Rule 403 to say “the probative value is outweighed by the prejudicial effect”…since what Steyn would effectively be doing is bringing in expert testimony through hearsay instead of by calling the expert.
When the defense is flying into a strong headwind (as I suspect they are with this judge), I don’t give strong odds on anything that requires an ingenious argument to get it in. As I think you yourself have pointed out in these threads, when it comes to admitting evidence, the judge gets discretion. If I felt the gale in my face, I’d want my evidence nice, simple, and direct — i.e., I’d want to call experts myself to come in and say what was wrong with Mann’s work, whether it amounts to a circus of tortured molestation, and so on.
‘course the plaintiff might open the door to it with a careless question. I do hope Steyn bones up seriously before the trial to be ready to take advantage of any such slip.
Bob: Adrian Ocneanu Video
Bob, the video you referenced did a wonderful job of explaining complex concepts. In so doing, it also did a good job of explaining two dimensional graphs like the ones produced by Lucia. Maybe a video, rather than overheads would be the way to go. Getting a video in evidence would require a lot of effort because it is non-traditional evidence, but I believe it would be doable.
JD
lucia (Comment #124656)
“So it appears:
1) They did not exonerate Mann. (As SteveMc said.) and
2) They made public statements derogating Mann’s work (As”
But Mann did not say that Oxburgh exonerated Mann. There are two explicit references in the complaint. The first, in para 3, says:
“In response to these types of accusations, the U.S. Environmental Protection Agency, the National Science Foundation and seven other organizations have conducted investigations into Dr. Mann’s work, finding any and all allegations of academic fraud to be baseless.”
The organizations undoubtedly include CRU, but Muir Russell did say benign things about the Hockey Stick.
The second, in para 21, said:
“Following the publication of the CRU emails, Penn State and the University of East Anglia (in four separate instances) and five governmental agencies [listed] have conducted separate and independent investigations into the allegations of scientific misconduct against Dr. Mann and his colleagues. Every one of these investigations has reached the same conclusion: there is no basis to any of the allegations of scientific misconduct or manipulation of data.”
There is no reference to Oxburgh by name. But it says, correctly, that there were investigations into Mann and his colleagues, and that allegations were found to be baseless.
It’s torturing words (as he does) to twist this into SM’s
“Mann’s claim that the Oxburgh panel “exonerated†Mann on counts ranging from scientific misconduct to statistical manipulation to proper conduct and fair presentation of results”
There is a later general statement that says:
“All of the above investigations found that there was no evidence of any fraud, data falsification, statistical manipulation, or misconduct of any kind by Dr. Mann”
But that immediately follows a detailed discussion of the EPA and OIG studies. It’s a stretch to say it’s claiming all those things of Oxburgh, who is not mentioned by name anywhere in the complaint.
And as for:
“They made public statements derogating Mann’s work”
They didn’t. Prof Hand made public statements. There were many complaints that the panels did not include critics of HS etc. This panel did. Hand managed to get a very indirect swipe at Mann into the report, but Mann protested (understandably, since the Panel didn’t read his papers) and they added:
“For the avoidance of misunderstanding in the light of various press stories, it is important to be clear that the neither the panel report nor the press briefing intended to imply that any research group in the field of climate change had been deliberately misleading in any of their analyses or intentionally exaggerated their findings. Rather, the aim was to draw attention to the complexity of statistics in this field, and the need to use the best possible methods.”
While I agree with what JD Ohio has said about the admissibility of the Mann emails – I also want to mention (if it is not already been said) that the defendants will have the opportunity to get the original emails from Mann via discovery.
So if Nick is objecting to the Mann emails as having been “altered”, this is a non-issue as Mann will have to produce the original emails in document discovery and the original emails with all the header information and nothing redacted will be available as evidence for trial.
Nick, OMG. Wow.
RickA Very good chance that they will claim that the emails were destroyed as part of routine housecleaning.
JD
To all the lawyers on the thread – we should also mention admission practice. The defendants lawyers can draft as many admissions as they wish, which must either be admitted or denied by Mann (via his counsel). Check out FRCP 36.
Admissions are wonderful tools and can be used to force Mann to verify what was said in various emails leaked by FOIA, authenticate documents, or force Mann to admit stuff with regard to R2 statistics or whatever else is relevant.
Unlike interrogatories (written questions), there is no limit to the number of admissions you can draft and require the other party to address.
They just have to be relevant, or calculated to lead to relevant admissible evidence, which is a fairly low bar.
If the Oxburgh investigation wasn’t one of the “seven other” that Mann mentions, just what were the “seven other”?
JD Ohio said:
“RickA Very good chance that they will claim that the emails were destroyed as part of routine housecleaning.”
Maybe – but with ediscovery, carbonite, backups, mirror drives, shadow volumes and the like – it is pretty tough to actually delete an email these days.
The defendants will be able to get in to all of Manns computers, email accounts, work servers and the like and actually verify they were destroyed.
Also – it is not just Mann’s computers – but everybody who sent him emails, or who he replied to, wrote to or forwarded to. Third party discovery can be directed to find all of the other copies of the emails which may exist.
I am sure it will be possible to find an “original” email somewhere which can be admitted, and not have to rely on the FOIA version.
RickA (#124687): “The defendants will be able to get in to all of Manns computers, email accounts, work servers and the like and actually verify they were destroyed.”
I would be horrified to learn that under discovery, the other party is allowed access to one’s computers and email accounts. Talk about fishing expeditions! I hope that the lawyers will say that this is not so.
I’m not sure why anyone pays any attention to Nick Stokes’ absurd suggestion that Mann didn’t include the Oxburgh inquiry in his list of supposedly exonerating inquiries even though the complaint refers to “four” inquiries between Penn State and East Anglia: the Oxburgh is one of the four known inquiries.
As Carrick rightly observes, “OMG”.
To waste no further time on this, Mann’s Reply Memorandum directly refers to it:
I also wish that commenters would pay no further attention to Nick’s fantasy about whether the emails would be admissible. He has no idea what he’s talking about on this topic and pays no attention to comments from lawyers who do.
HaroldW:
eDiscovery practice in Federal Court is pretty horrifying. Of course, usually you go through a third party company and they are limited in what they can look for. However, Mann cannot just say the emails are deleted and no longer exist. The defendants do not have to take his word for that. And if he is found lying about an issue like that – then he is the guy wearing the black hat.
Nick is riding the racehorse, as usual.
BTW Nick, my last comment was addressed to you.
Why would anyone use an alias from a child’s action figure “Nathan Drake†and CSI fictional character “Nick Stokes†and expect to be taken seriously? Especially when their arguments are deliberately obtuse increasingly desperate.
DCA (Comment #124686)
‘If the Oxburgh investigation wasn’t one of the “seven other†that Mann mentions, just what were the “seven otherâ€?’
I don’t know. And neither does SM. But he says, without qualification:
“I’ll look closely at the Oxburgh panel, one of the investigations cited in Mann’s pleadings.”
In fact the complaint says “seven other organizations”. The Oxburgh panel was not an “organization”. It’s quite possible that the lawyer who drafted the complaint was sloppy with lists. And that can be criticized.
But it doesn’t justify making up a whole lot of stuff that they didn’t say. That quote:
‘Mann’s claim that the Oxburgh panel “exonerated†Mann’
puts the word “exonerated” into Mann’s mouth. He doesn’t use it anywhere in the complaint, let alone of Oxburgh.
The thing is, if you read SM’s post, you’d think the complaint had said things directly about Oxburgh. But they didn’t. You have to read stuff into totals referred to here and there, and then argue that every statement made applies each descriptor to everything in the list etc etc.
Nick:
“The Oxburgh panel was not an ‘organization'”.
I wonder if the IPCC knows it is not an organization?
At least to Nick.
Nick – I disagree with you. A panel is an organization.
Nick says, “I don’t know. And neither does SM. “
So you don’t know but you imply it’s not Oxburgh. So are you saying that these “investigations cited in Mann’s pleadings.†are not public? Were they secret or his hometown high school science class?
.
“It’s quite possible that the lawyer who drafted the complaint was sloppy with lists.”
No Nike, it’s “quite possible” that you, not a lawyer (maybe?) are going down a road of distraction and lack evidence for what you think is “quite possible”.
DCA/Nick,
If the investigations cited are not specified, and at least one of them is some “mystery investitation no one knows of”, then Mann claiming Steyn and Simberg should be aware of the findings, read them and believed them is pretty lame.
Meanwhile, one can find published quotes after a public investigation that was widely reported, and those quotes derogate Mann’s statistics. Steyn and Simberg could certainly have been influenced by discussions surrounding the Oxburgh investigation which was widely covered in the news.
Steve McIntyre (Comment #124690)
“To waste no further time on this, Mann’s Reply Memorandum directly refers to it:”
Yes, they did. Let’s continue the quote:
“In April 2010, the University of East Anglia convened an international Scientific Assessment Panel, in consultation with the Royal Society of London for Improving Natural Knowledge, and chaired by Professor Ron Oxburgh. The Report of the International Panel assessed the integrity of the research published by the CRU and found “no evidence of any deliberate scientific malpractice in any of the work of the Climatic Research Unit”
They aren’t claiming any exoneration of Mann there. It’s a straight description of how it dealt with CRU. Why are they including it in their response?
“In their brief, the CEI Defendants suggest that the University of East Anglia’s investigation actually found that the hockey stick graph was “misleading†because it did not identify that certain data was “truncated†and that other proxy and instrumental temperature data had been spliced together.
…
Dr. Mann did not create this [WMO] depiction, and the attempt to suggest that this report suggested an effort by Dr. Mann to mislead is disingenuous.”
IOW, they are citing it to point out that the report was not about Mann.
“He has no idea what he’s talking about on this topic and pays no attention to comments from lawyers who do.”
One lawyer thinks the emails via Mr FOIA would be admitted as evidence of what Mann wrote. Otherwise I mostly see suggestions of workarounds, which I don’t dispute.
My wife’s gardening advise applies to Nick–don’t spread the manure so thick you kill the plant.
The widely renowned, esteemed, acclaimed, verily! even canonized, Michael Mann is without flaw as always. Somehow it’s always somebody else that is doing something wrong.
So if it’s not the other party “making stuff up”, it’s the lawyer that Mann chose… heh. Mann still has an obligation to read and sign off on anything written by his lawyers, so look’s like Nick’s shoveling job is not quite done yet.
Nick could have written for Pravda.
Nick
Your comments seeking to justify Michael Manns activities do you no good. Case Law and Procedure are quite different in Australia to the US. Your no doubt sincere attempts to understand the complexities of procedure in the US only serve to highlight your lack of familiarity with the matter – not a good sign.
Its not a case of quit while you are ahead, rather don’t dig a hole any deeper.
One day there might be a similiar enquiry into some of CSIRO’s activities in climate science research
DCA (Comment #124694)
“Why would anyone use an alias from a child’s action figure “Nathan Drake†and CSI fictional character “Nick Stokes†and expect to be taken seriously?”
I’m actually real. I don’t know if it’s admissible, but I read upthread that sceptics are especially associated with juvenile mathematical exploits, so as evidence I’ll offer this.
Well you’ve overcome the shyness Nick but you’re still a bit vague
There’s been a lot of uncertainty about exactly how Mann will claim actual malice. While looking up Steve’s quote, I re-read their “opposition to motion to reconsider”. It sets out a lot of their arguments. including:
“The NRO Defendants also argue that Dr. Mann has failed to plausibly plead actual malice. A party acts with actual malice when it deliberately ignores evidence that calls into question its published statements or when it encounters persuasive evidence that contradicts the published statement. Harte-Hanks Commc’ns, Inc. v. Connaughton, 491 U.S. 657, 685 (1989); Schatz v. Repub. State Leadership Cmte., 669 F.3d 50, 58 (1st Cir. 2012); Levesque v. Doocy, 560 F.3d 82, 90 (1st Cir. 2009); McFarlane v. Sheridan Square Press, Inc., 91 F.3d 1501, 1511 (D.C. Cir. 1996). Dr. Mann easily satisfies this standard.”
Perhaps rather than Oxburgh, Mann was referring to the investigation by Wegman or North. Or perhaps it was an investigation conducted by Tamino and Arthur Smith and William Connolley.
I just realized what Mosher is talking about. The e-mails are admissible.
RomanM, I think technically the Economics Prizes are not Nobel Prizes, but Nobel Memorial Awards.
Nick Stokes is right. Mann didn’t claim they exonerated him. He claimed that they declared any and all accusations against him to be baseless.
Steve, JD, didn’t mean to belittle accomplishments. It’s just that I was also first place on a national math exam(as well as the SAT), but it is not quite so unique, though perhaps enough to establish credentials.
Nick
Like a bush lawyer you are still digging
Unless there is a whopping El Nino in the next 2 years, the weight of evidence is on the side of low sensitivity and Michael Mann is about 2SD’s on the wrong side of that.
A bit like some of the models
MikeN, the KEY to all the CRU emails was sent to a number to individuals, including one with the initials SM.
Do you think all the people who sent and received emails can remember what they did and did not delete?
I am sure Styen would be interested in looking at the full archive.
Nick — MJW linked you to the Harte-Hanks case here. I just read it. It’s an interesting case, and well worth reading, but it isn’t the same line of goods. There a witness (Thompson) accused a judicial candidate (Conaughton) of bribery and intimidation, which included threats and promises Conaughton was supposed to have made at an interview at Conaughton’s house.
There was a tape recording of that interview – something that could demonstrably show “true” or “not true” to the average listener – and the newspaper had it, but simply refused to listen to it. One of the key points of evidence the Supreme Court considered in upholding the verdict was this. And that is the context in which the court said “while failure to investigate will not alone support a finding of actual malice, purposeful avoidance of truth is another matter.”
They cited Curtis Publishing v. Butts which had a similar issue – the controversy was over an allegedly fixed ball game; the defendants apparently didn’t even watch the film of the game to see if the events happened the way they said they did. (They didn’t.)
On the other hand, to see how little is required of a journalist to meet the actual malice standard — there are good quotes in Harte-Hanks too — chase the link I gave earlier to Eastwood v. National Enquirer. In that case, the Enquirer published an interview that never took place. They did so by relying on a freelance journalist who’d submitted it to a British tabloid, and who made a dubious claim that he had “erased the tapes” of the interview. They didn’t take obvious steps to verify the interview…like, for example, contacting Eastwood himself or his agents to see if the interview had taken place.
The appellate court held that, by itself, what they’d done was enough — it actually disagreed, as a matter of law, that the evidence was strong enough to support the verdict for Eastwood on this point. “We listened to a freelancer for a dubious tabloid who had no tapes of the interview” — it’s a step or two above “we read it in bathroom graffiti” but it’s still not much. Yet it was enough. It well illustrates the point MJW made about Harte-Hanks, that the Sullivan standard cannot be met simply by showing bad or careless journalistic practice.
(Eastwood still won the appeal, but that was because the Enquirer had featured the fake interview as “exclusive,” implying that he had talked to the Enquirer itself. Since they obviously knew that was false, the statement was published with malice.)
As Lucia has pointed out before, Climategate alone gives Steyn and Simberg plenty of reason to think there’s fakery in Mann’s science, and not to give credence to Penn State, UEA, or other authorities (often self-interested) that find the contrary. There’s nothing like the tapes in Harte-Hanks or Curtis…if there were, it would’ve been published by now.
DocMartyn, I don’t think that’s what Mosher is referring.
P.S. – And all these cases affirm and reaffirm the basic principle (which you have not denied but I don’t want anyone mistaking the point) that it is the defendant’s actual state of mind, and not the “reasonableness” of his belief, that determines actual malice.
MikeN, I stand corrected. Wikipedia does state:
While everyone is flaunting math pedigrees, I can point out that I never got the opportunity to write the national math exams when I was a youngster. However, when I grew up, I managed to get on a number of committees which made up questions for such examinations as well as for the Canadian Math Olympiad. One of my more enjoyable moments was to be invited to the University of Waterloo math summer camp where I spent a week giving lectures on mathematical problem solving to a group of very pleasant and attentive kids (including the Canadian world Olympiad team).
Oh, and I stayed in a Holiday Inn last night… 😉
Carrick: “Mann still has an obligation to read and sign off on anything written by his lawyers, so look’s like Nick’s shoveling job is not quite done yet.”
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We generally agree on this case, but your statement above is wrong. The attorneys sign the pleadings, not the party. See Civ. R. 11, which states: “Every pleading, written motion, and other filing shall be signed by at least one attorney of record in the attorney’s individual name, or, if the party is not represented by an attorney, shall be signed by the party.” The reason for this is that pleadings are generally supposed to give basic notice of the claim and not the specifics. (In Slapp cases, there is a higher standard of specificity, but still no signature of the party is required.) My main point is that you should be careful of your legal assumptions. A lot of things that you think are plain common sense are not so in legal matters. My advice about being careful goes to Nick Stokes in spades.
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In my view, the responsibility for the mistakes in the pleadings and motions is mostly with the attorney, who should check out what he has been told. (See original Nobel statement) I also have a real issue with the amended complaint, which uses the term “denier”, which to me is defamatory innuendo trying to link the people described to Nazis. I do know that a lot of judges would not agree with me, but I find it more than strange that someone whining about defamation would use the term “denier.” (See paragraph 20 of amended complaint.) Additionally, the complaint contains the laughably wrong statement that defendants “attempt[ed] to discredit consistently validated scientific research through the professional and personal defamation of a respected scientist. (See para 5)
JD
McIntyre:
Where did Mann say the Oxburgh panel exonerated him?
Is that it? Because you’ve taken that from a larger discussion of the stolen CRU emails. That paragraph shows that not only was Mann cleared, but so were his colleagues. To read it your way, you would also have to argue that Mann thinks his colleagues were cleared by the Penn State investigation. Although perhaps I shouldn’t give you guys any ideas, eh?
Can’t believe you turned that into a post, honestly.
Mann has been repeatedly “cleared” by institutions with a vested interest in avoiding the embarrassment of an adverse finding about a publicly prominent academic (the IPCC hockey stick poster guy!) and which “investigations” were structured accordingly.
Arguing that he has been repeatedly cleared wherever he goes is like telling a prospective employer to ignore your lengthy arrest record because you beat the rap every time. It raises material issues about his controversial nature which are broader than and which precede the writings of the defendants.
The Climategate emails portray the climate science establishment drawn into a wagon-circling, email-deleting, critic-denigrating partisan cabal assembled largely in defense of Mann’s stonewalling.
Mann treated legitimate questions about the data and methodology of his work as personal, political attacks and has been effective in gathering others to his side along partisan lines in lieu of open candid exchanges about matters of substance. Why not just give M&M the data and methods right away to defuse any controversy? Why go to war instead of responding like a scientist who would presumably welcome attention to his work? Mann will have a hard time creating the persona of an apolitical, private scientist surprised and wounded by sharp criticisms from people who don’t bow to The Consensus.
JD Ohio,
Thank you for your many comments on this thread. I find them educational.
No (Comment #124623)
Boris, there are many relevant documents in the pleadings that you don’t appear to be considering. In addition to the Complaint itself, Mann has filed numerous memoranda with the court, which make it abundantly clear that he included the Oxburgh inquiry among the inquiries that supposedly exonerated. I didn’t canvass all this information in my blog post, because it didn’t occur to me that anyone would contest that Mann didn’t include the Oxburgh panel as one of the supposed exonerating investigations.
Given the materials, it would be very awkward for Mann to now try to argue that he didn’t mean to include the Oxburgh panel in the list of inquiries claimed to have “exonerated” Mann himself.
I will also be writing about other inquiries. Stay tuned.
Michael Hart,
Thanks for your very kind words. Glad to know that I may have contributed something. Will be comforting as I descend into poverty on account of all of the time I have spent here. (:
You’ll make it back in free drinks at the “Veterans of Lucia’s Marathon Mann Threads” conventions.
(We are going to have those, right?)
Nick Stokes writes of Mann’s memorandum:
As too often, Nick Stokes just writes the first thing that comes into his head, without apparently making the least effort to read the documents. All but one of the above cases resulted in the defamation claim being dismissed at the anti-SLAPP stage.
Nor is the summary language in the above paragraph language that is actually used in the citations. better to look at language actually used in decisions: Schatz is the most recent and I suggest that you look at it.
The only case which survived anti-SLAPP was Harte-Hanks, where, as another commenter observed above, the facts were very different and easily distinguishable from the present case. In particular, in Harte-Hanks, the defendants were held to have purposefully not looked at relevant documents. But in this case, Mann’s claim is not the defendants wilfully ignored the investigations, but that they were obliged to accept the alleged findings of the investigations that Mann had not only not commited academic misconduct, but had even conducted his analysis properly.
To my knowledge, there is no precedent that even remotely supports Mann’s argument and, in my opinion, this will be an insuperable big problem for him.
Given that at least some of the inquiries did not “exonerate” Mann and that Mann misrepresented their findings in his pleadings, the hurdle will become that much higher.
Steve Mc is right. Please stop feeding the trolls. They are bad enough discussing the science when they have some knowledge. But they don’t have a clue about the law, so please ignore them. They would argue endlessly about the color of grass or the sky.
Do not argue with fools or wrestle in the mud with pigs.
Stan – I quite disagree. Firstly, Nick doesn’t come across to me as either a fool or a troll. (In fact, there are plenty of people around here, including some that I agree with more, who could learn from him about arguing civilly.)
Secondly, he raised a perfectly fair point, which is that Mann’s lawyers had given their own account of the “actual malice” standard and cited case law to support it. He didn’t play “legal know-it-all” and swear we were all fools for thinking the contrary — he simply raised the point, inviting comment.
And thirdly, if he hadn’t done it, I wouldn’t have read Harte-Hanks and learned from it, the way I just did.
If I were counsel for the defense, I’d make sure the jury saw Muller’s dismissal of Mann’s hockey stick. I know it made a big splash on climate blogs when the youtube was making the rounds. If I recall, Muller doesn’t give an accurate description of what was actually done, but he does remark that the work was so flawed he would no longer bother to read the work of the scientists involved.
That youtube clip, along with evidence of Muller’s scientific prominence, would be enough to sink any claim by Mann of malice.
Just found it and watched. If the jury sees it, Mann loses. Period.
https://www.youtube.com/watch?v=8BQpciw8suk
It is good to see that Steyn has carefully read Steve’s Climate Audit piece and clearly understands its significance. Moreover, it is almost certain that Mann’s lawyers are reading whatever Steyn writes and that they also have read Steve’s piece. If Mann’s lawyers are doing their job, I would guess that Mann is having some interesting conversations with his own lawyers.
I have also posted this question on CA
Somewhat despite myself, I’m becoming mildly interested in this (my experience of splashy court cases is that truth is likely an early victim)
Could someone who knows inform us, please, whether this case if it actually reaches a court hearing, must be heard before a jury only, or whether a duly constituted Judge alone is lawfully sufficient ?
ianl8888 (Comment #124742)
” must be heard before a jury only”
Mann’s complaint has typed at the top
“Jury trial demanded”
That’s an interesting clip, Stan. Not seen it before.
Joseph W. (Comment #124716)
“Nick — MJW linked you to the Harte-Hanks case here…”
I hope there’s no confusion here – the part in italics, as is my convention, was a direct quote from the linked Mann motion. They aren’t my case citations.
But thanks for the discussion. Again, I don’t take a position on the actual malice issue. I just note and listen.
Oh, indeed, that was clear. My note was simply (1) an invitation for all interested parties to read the case, and (2) a shorthand way of making sure anyone who followed the link saw the quote MJW had given (without having to requote it all myself) — so that no one would be deceived into thinking that “actual malice” imposes a “thorough investigation” or “good journalism” standard.
Ianl8888 — Nick is right about that. Also, defamation was and is a common law cause of action, and the Seventh Amendment to the United States Constitution provides the right to trial by jury in “suits at common law” unless the amount of money in controversy is trivial.
Parties can waive that right — if they don’t demand it, you can have a “bench trial” in front of the judge alone. But plaintiffs seeking massive punitive damages typically do demand jury trials. Juries are scary and unpredictable, and that puts pressure on the defense to settle. Which, at the end of the day, they almost always do.
Mind you, if Mann tries to exclude Steyn’s scientific evidence under Daubert v. Merrell Dow Pharmaceuticals, Steyn might have to litigate his scientific issues twice…once in front of the judge, and then if the judge lets him, once again in front of the jury.
“I hope there’s no confusion here”
Nick, that appears to be your whole intention. Your comments sound like a defense attorney representing a mob boss. The difference being Mann is not the defendant.
Isn’t there a ClimateGate e-mail where one recipient describes Mann’s work as terrible?
Something like ‘they want our opinions of x, well if they really wanted our opinions I would say MBH is …’
Re: stan (Feb 18 22:43),
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That’s what you say. But what if the jury isn’t allowed to see it? Or what if they do see it, but they decide in Mann’s favor anyway? After all, the venue for a trial, if one ensues, will be Washington DC, and the rule of law and reason doesn’t rule there. Steyn needs first class litigation talent on his defense team.
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Re: Joseph W. (Feb 19 06:38),
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If Mann’s lawyers are as experienced and as competent as I think they are, they will attempt to exclude the content of any contrary paleoclimate science evidence and also any contrary mathematical/statisical evidence under the argument that the hockey stick represents the very firm consensus of the paleoclimate science community, and anything contrary to that consensus is mere pseudoscience and must be treated that way.
.
This is basically an argument to authority; and a Washington DC judge might be inclined to cite paleoclimate consensus authority as a justification for not allowing into evidence any contrary scientific/mathematical material which might be offered by mssrs. McIntyre, McKitrick, Loehle, McColluch, and Condon.
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The venue for a trial, if one ensues, will be Washington DC; and the rule of law and reason doesn’t rule there. Steyn needs first class litigation talent on his defense team if his side of the story is to survive all the obstacles Mann’s Big Green lawyers will be throwing up in front of him.
Beta, I was considering Daubert, and I have a different perspective. It states: “Proposed testimony must be supported by appropriate validation—i. e., “good grounds,†based on what is known. In short, the requirement that an expert’s testimony pertain to “scientific knowledge†establishes a standard of evidentiary reliability.” p.590 I would focus on the term reliability, which requires validation, which has not occurred in Hansenite “science.” Footnote 9 states: “We note that scientists typically distinguish between “validity†(does the principle support what it purports to show?) and “reliability†(does application of the principle produce consistent results?). See Black, 56 Ford. L. Rev., at 599. Although “the difference between accuracy, validity, and reliability may be such that each is distinct from the other by no more than a hen’s kick, … our reference here is to evidentiary reliability— that is trustworthiness.”
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Mann’s statistical methods have been criticized as ad hoc and “Mannian.” If that is the case, a decent argument can be made, to the extent that his studies relied on non-standard statistics, they are invalid and not reliable.
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The litigation with respect to Daubert has been huge, and this is my first superficial impression. However, if Mann’s statistics are really a hodge-podge, there are grounds to strike portions of his complaint and re-litigate the validity of the complaint. Or, alternatively, file a motion for summary judgment. My main point is that Daubert requires reliability, and Mann’s statistical techniques appear to be grossly deficient. Again, there are many, many angles to this, but I think it should be considered. I would suggest that interested people read the opinion and the wikipedia entry because both are not that difficult for lay people in this instance.
JD
JD – There’s truth in that, though Daubert does subsume the old Frye test, in which you look to what is generally accepted (or even “peer reviewed”) in the “relevant scientific community.” (I mean, if I remember, that is still part of the test, though the judge must now look to the qualities of the science as well.) I can picture Mann being very aggressive about that…arguing the “consensus” and the legions of IPCC authors behind him.
It’s a scary thought because the Greens have had a successful “march through the institutions” — and this would be another mechanism to try to make the minority view shut up. Having a judge who gets his news from U.S. media and his professional knowledge from a U.S. legal education as the “gatekeeper” on science, especially science surrounding an ideological controversy…that’s scary. At least under Daubert Steyn gets to try to argue the merits, and not just “what do scientists say?”
(Part of the solution might be dealing with what the relevant “community” really is. If “Climate Scientists” all think Mann’s work is the cat’s pajamas, but statisticians are a separate community and do not, then that might be a starting place. I’m going by analogy with parapsychologists — almost by definition, every one of them believed in ESP of some kind, but experimental psychologists, statisticians, and close-up magicians had contrary views from within their own specialties.)
If Mann wins a motion like that — Steyn is left with free speech and nothing else. I sure hope he’s not planning to use the funds he’s been raising only to hire expert witnesses, without also hiring a good lawyer to make sure he’s even allowed to present them.
Joseph W: One of the reasons for considering making the argument is to educate the judge as to how bad Mann’s statistical techniques were. A well done brief with good exhibits (including possibly videos such as the Ocneanu video –this would be unusual but I would try) would help a lot. I am afraid the statistical issues will go over the head of the trial judge and the appellate judges, and this is one potential (speculative on my part) way to increase their understanding. If his techniques really were one-offs, he has an issue under Daubert.
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Of course, I am saying here that the relevant community is that of statisticians and not paleo scientists, who really do have serious problems with their statistical skills.
JD
Joseph W:
In the physical sciences, and by me in particular, substance is appreciated more than form.
Form I guess gets appreciated more when the thing you are arguing over ultimately is unknowable, e.g., philosophy questions.
I suppose while lawyers admire people with the ability to “make a silk purse of a sow’s ear”, most people in the physical sciences find it off putting, because ultimately we really have an underlying, knowable and testable truth. The competition for us is not to make a better argument, but to arrive at the truth sooner.
So I’ll take honestly felt anger anytime over carefully worded non-truth.
Anyway, few of the comments on this thread have descended frankly to the point where anybody should feel the need to call people out on them. (Though I’m frankly puzzled what somebody’s teaching record has to do with anything for example.) But it’s not your job to do it anyway, when somebody gets out of hand, it’s the job of the blog administrator.
Beta,
If Styen says he viewed the Muller video to form the opinion he is being sued for, I don’t see it not “being allowed”. You seem to be saying that a DC jury will be extremely biased. In that case I believe it will likely to be overruled in a subsequent appeal.
Nick Stokes
We met at an ASME conference long ago, once… right? (I think you told me that. I think it’s the one where I lost a filling…. )
I’ve met Carrick in real life too– and a few other people.
Carrick
Me too. But sometimes it’s bet to just ignore things. For some reason , from time to time, people inject that into conversations where Eli appears. I figure Eli knows what those online reviews amount to. They tend to be very biased samples anyway. But even if he sucks at teaching — which I have no reason to believe is the case– it would be irrelevant here.
JD Ohio:
Related: I should point out Jim Bouldin’s blog site to you.
Bouldin is a paleo-scientist who has been examining problems with the various statistical methods being used. So even to the extent that Mann was using “standard methods”, there is recognition within that community that there may be problems with it.
There is also a substantial amount of controversy over Mann’s reconstruction methods in the paleocommunity, with many prominent researchers being highly critical of aspects of Mann’s work. Von Storch and Moberg are two prominent researchers that come to mind.
Carrick — Doubtless. But if somebody’s going to say I’m “feeding the troll” or “wrestling with pigs,” and adjure me to stop it – I may well wish to respond myself. And I did. (I didn’t think those comments amounted to “substance.” I still don’t.) Should Lucia think that’s out of line, she’ll doubtless let me know.
Carrick/Joseph W.
I think you are both feisty, and both grown up. So is Nick Stokes. I do see some sniping, but it’s fine.
If things get out of hand, I’ll eventually step in. I’m learning a lot about some specifically legal qua legal matters from Joseph W, JD Ohio and several others here. And (if you saw my other post) this is actually quite useful to me right now on another front. I think, on the balance, my not stepping in is resulting in our seeing more interesting information about the law qua law than otherwise. So…. all: try to be more or less nice, but mostly you are fine.
Carrick (#124765): ” I’m frankly puzzled what somebody’s teaching record has to do with anything for example.”
Some advice from my last fortune cookie might be a propos: “The purpose of argument, should not be victory, but progress.”
Obviously, my comment about the impact on the jury of seeing the Muller clip is my opinion. It’s my opinion as a lawyer and as someone who has served on a jury.
It’s really simple. Prominent scientists say that Mann’s work is not only wrong, but employed methods that are unacceptable. Steyn simply wrote what prominent scientists have said. How can Mann prove that Steyn did not believe what he clearly believed and with good reason?
The question, for the outcome of the case, isn’t for a jury to decide the science, but rather to decide if Steyn KNEW he was publishing a falsehood or recklessly published what he did while in possession of information that gave him serious doubts about the truth of what he wrote.
Here is another question for the staff lawyers:
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Can Steve McIntyre be hired as a paid consultant for the defense — one who might appear at a trial as a paid expert witness concerning matters of science and statistical mathematics — when there is also a good possibility that he himself might be called to testify separately as a material witness to events in describing his previous interactions with Mann?
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In other words, can Steve McIntyre testify as a paid expert witness — but also testify as a material witness to events — in the course of the same trial, without one testimony potentially tainting the other testimony from a conflict of interest perspective?
Joseph W: Interesting that you bring up Daubert!!! That case was one that helped to clarify the qualifications of who can be considered and expert witness and provide guidance for judges dealing with very technical, scientific issues. The specific issue in Daubert?? Credentials of a professional expert witness (Alan K. Done)… one that was not really an expert in the area that he acted as an expert. My understanding was that Dr. Done invented novel statistical methods in order to demonstrate that Merrell Dow was producing and marketing a drug for pregnant patients (Bendectin) that caused birth defects. Usual, standard statistical and epidemiologic research did not show this relationship. Even though Dr. Done was a physician-researcher, he had no particular training in statistics and used dubious, non-standard methods to obtain the desired (for the plaintiff) results.
IANAL: Interesting to review the Daubert standard Wikipedia page, under Factors Relevent: do Mann’s paleo publications meet these standards?
1. Empirical testing: whether the theory or technique is falsifiable, refutable, and/or testable. (tested and failed using scientific standards; not met)
2. Whether it has been subjected to peer review and publication. (met)
3. The known or potential error rate. (tested and failed; not met)
4. The existence and maintenance of standards and controls concerning its operation. (not met)
5. The degree to which the theory and technique is generally accepted by a relevant scientific community. (likely open to interpretation… depending on which “relevent scientific community” is considered. Richard Muller and Steve McIntyre would likely have different ideas of acceptance than would Gavin Schmidt and James Hansen).
Bruce
Beta – here is the rule on calling expert witnesses. There’s nothing in there saying a witness can’t testify in more than one capacity. An expert witness can give expert testimony based on either hypothetical situations or facts he has actually observed. He can also testify as a lay witness. In fact, I’ve had a (psychological) expert do all three things in the same trial; he testified about: (1) a particular person’s mental condition, (2) general information about what that condition means, and (3) what was said to the psychologist by a different witness (who was not a patient and whose mental state was not at issue), all in the same trial. (I wasn’t paying the expert but that didn’t change the analysis.)
Of course, the plaintiff could attempt to diminish SteveMc’s credibility by pointing out that (1) he’s getting paid as an expert, and (2) he’s got longstanding “issues†with Mann. (Which they could try to paint as personal bias.) I think the “conflict†would simply be an argument the plaintiff could try to exploit to affect the weight of SteveMc’s evidence, rather than a reason to exclude his testimony completely.
Joseph W, I see nothing wrong with you engaging with Nick, Boris or anybody else that you feel interested in engaging with, and appreciate your contributions to this thread. If we only respond to people we agree with, the discussion ends up going nowhere. Balance in everything.
HaroldW:
I like this one. It appears to be based on a quote by Joseph Joubert, which says:
Bruce: There was actually a clear rule in place before Daubert, and it was the Frye standard. That standard simply stated that you could only admit scientific evidence if it was accepted in the “relevant scientific community.” (United States v. Frye was itself about lie detector/polygraph evidence…which did not pass muster.) Daubert changed the rule because the text of the evidentiary rules had changed, and the court held that the meaning of the new rule was that the judge had to play “gatekeeper.” I believe there was a concurring opinion that said, “Yes, the new rule does say that, but I’m worried about what it means.”
I concur with that concurrence. Lawyers, even senior lawyers, listening to scientific evidence and deciding whether it’s “good science” or not makes me antsy…especially in situations like this where “science” is tied up with “politics and ideology.”
Daubert itself still allows some consideration of the opinions of others in the field, and of peer review — it’s a common enough question of expert witnesses (“And do others in your field think this method is reliable?”). That’s what worries me. Given the “social” side of this controversy, where one side is declaring that there is no real controversy, that the argument is over…it might be used to shut down the “truth” side of Steyn’s case completely, if he isn’t ready to answer it.
I think there may be a separate free speech issue, not yet explored by the case law I know, if Daubert is invoked in a defamation case to suppress the defense of “truth.” I hope this case doesn’t reach the point where that has to be litigated — but were I on the defense team I’d be doing some early research on that.
Carrick – Thank you. HaroldW – Thank you. Lucia – Thank you.
Both for what you said and what you do.
(I owe the most to Harold. I’ve read that people who laugh more live longer, and I think he added two days to my lifespan all by himself with this post.)
(Hey, JD, if you need to justify the time you spend here, try that one!)
@ Nick Stokes #124744
Thank you for the reply
But my question was aimed at the actual law, not what one or other of the participants may or may not want
So again, by law must this case, if it does reach a court hearing, be heard before a jury or can a court decide that a Judge alone is sufficient ?
lucia (Comment #124767)
“We met at an ASME conference long ago, once… right? (I think you told me that. I think it’s the one where I lost a filling…. )”
Portland OR 1991, I think. Though I’m not sure we met – we established that we went to some of the same talks.
DCA (Comment #124755)
“Your comments sound like a defense attorney representing a mob boss.”
Mann as mob boss is a construction in your mind. It’s a trial and there are two sides. If you insist the case for the other side can’t be mentioned, then you won’t be able to understand why they are actually doing quite well so far.
Ianl8888 – see my answer here.
Nick’s observation is right of course. But besides that, if you try to paint Mann as a mob boss again, Mann will have your legs broken. :p
Mann as mob boss is a construction in your mind.
hmm, the mails surrounding the decisions and actions to be made surrounding certain journals and editors are arguably similar to a mob boss. hehe, Santer was the enforcer, dont meet him in a dark alley
Nick
Yep.
Nick Stokes,
“you won’t be able to understand why they are actually doing quite well so far”
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I think most people do understand why: the case was filed in a jurisdiction with mostly friendly judges (and with cases assigned by other friendly judges), a technical subject which those judges are ill-equipped to evaluate, and most of all, lots of high priced legal talent (funded by politically an interested party or parties with very deep pockets) that Mike Mann does not have to pay for. Nope, not difficult to understand… SLAPP cases are pretty easy to understand.
Ian, both sides have a right to a jury trial. So, if either side requests a jury then the case will be tried before a jury (and Mann wants a jury). The trial judge still decides issues of law though, and in certain and rare situations a trial judge can take the case away from a jury (directed verdicts). If the case is appealed (the defendants are trying to get the decision overturned in what is known as an interlocutory appeal) then appellate judges, not juries, look to see whether material errors of law were made by the trial judge. Appeal courts don’t substitute their judgment for a jury except in certain rare situations where the appellate court decides as a matter of law there was insufficient evidence for the jury to render the decision it did. Hope this helps.
Nick Stokes,
“you won’t be able to understand why they are actually doing quite well so farâ€
well, the first judge couldn’t even keep the defendants straight and was then replaced, SLAPP laws are weak and often ignored, and Mann did get his first suit thrown out and had to refile, so there are reasons and he isn’t doing that well. It only seems he is doing well because he doesn’t have to pay his own lawyers.
It seems to me there is a problem with language: “fraudulent” is often used to mean “no good” and in this context could not possibly be referring to criminal fraud anyway since there is no money involved.
Lucia, I apologize to all for bringing up Eli’s teaching records. In reading the last several comments I see this blog is trying to be more civil than most climate science blogs (I won’t mention which ones). I will refrain in making irrelevant comments from hereon on your blog. Again, I apologize.
Nick, I’m not calling Mann a mob boss but describing your argument as “defending the indefensibleâ€. I think you really believe Mann was referring to Oxburgh, but like a mob boss attorney, you’ll say anything to defend your client. I’m sorry but SM’s post is overwhelming.
> I think you really believe Mann was referring to Oxburgh, but like a mob boss attorney, you’ll say anything to defend your client.
“It doesn’t matter what I believe. It only matters what I can prove!”
BDL (Comment #124788)
It’s worth noting that in cases implicating freedom of speech, the appellate courts have a larger role in evaluating the facts. See, for instance, section II of Bose Corp. v. Consumers Union of United States, Inc.. An excerpt:
The Eastwood case I linked above is a good example of an appellate court doing just that.
Craig Loehle (Comment #124789)
“and was then replaced”
The judge’s pending retirement was announced well before.
“Mann did get his first suit thrown out and had to refile”
No. They chose to add an extra count. It was not thrown out.
Carrick (#124777)
Thank you for looking up the source. As fortune cookie factories are not prone to hiring philosophers, I should have guessed that any insightful sentiment is borrowed from somewhere. For some reason, I didn’t think of looking it up. And I’d never heard of M. Joubert, but now I have.
I just don’t see Daubert becoming an issue for anyone unless the defense calls Doug Cotton as an expert witness to opine the whole of GW violates the laws of physics. Mann’s testimony regarding his methodology won’t be barred under Daubert — how could a rational trial judge exclude testimony that was accepted in a peer-reviewed journal, never retracted, subsequently validated, accepted by the IPCC in work that later generated a Nobel prize, and would be supported by any number of well known and respected scientists? Besides, it’s a weird case from an expert opinion standpoint: I suspect Mann has an absolute right to explain his work in the context of a defamation case about that work.
I like my fortune cookie better: “The purpose of argument is to crush your enemies, see them driven before you, and to hear the lamentations of their women!”
MJW, agreed, but technically (and I know you know this) they are still ruling as a matter of law. It’s just that they will (can) conduct a review of the record to ensure there was sufficient evidence to meet the constitutional standard. Criminal defense attorneys frequently appeal on that sort of basis claiming there was insufficient evidence as a matter of law to find the defendant guilty, which requires a review of the record. Almost always a loser, but it does help here in the event there is a crazy jury and the trial judge doesn’t disturb the verdict.
Nick writes “No. They chose to add an extra count. It was not thrown out.”
And the article says this…
Which draws eerily familiar parallels with the AGW requirement that most of the observed warming has to be anthropogenic otherwise its not worth bothering with.
Ianal, but i think it should probably never get to a jury verdict, if the defendants are properly advised.
Unless they were stupid enough to write down somewhere “I don’t really believe what I said about Mann” or are stupid enough to say that in a deposition, then I think there will be no evidence of malice (in the legal sense).
Whereas on the other side of the coin, there is plenty of evidence of the absence of malice – there is presumably tons of evidence they did really believe their claims, and not only really believed it, but had tons of reasons (whether these reasons are scientifically meritorious is irrelevant) to think that way.
In summary, I think as Lucia said, the defendants really believed what they said. I think *all* the evidence will show they really believed what they said. And it is exceedingly unlikely that there will be *any* evidence to show that they didn’t believe it.
It’s a popular green myth (to whip up the green left base) to say conservatives are lying when they disagree with greens, because the conservatives know the “true” facts, but are blinded by greed and corruption – but even if that were true in some cases, I don’t think it is true in this case.
Since malice is an essential element of Mann’s defamation claim, and all his other claims depend upon defamation, he should not able to win as a matter of law.
I am thinking:
1. Summary judgment (since there will be no material facts in dispute about this underlying essential element of all mann’s claims. A conclusory accusation by Mann’s side that the defendants might not have really believed what they said, is not by itself admissible evidence, nor by itself, enough to defeat summary judgment. To defeat such a motion, Mann’s side needs to produce some admissible evidence, even if weak, about their opponent’s state of mind not really matching their statements – and I doubt that they will have
2. a rule 50 motion (judgment as a matter of law).
Looking at past Volokh articles , at one time, they were puzzled over why Mann chose to file in the DC superior court and not federal court.
RB — I think it’s the same jury pool anyway. In some places, the state courts are less punctilious about motion practice than the federal court. Maybe that was their idea — to improve their odds of not having the case dismissed or otherwise thrown out on motions.
Copner — What you say makes plenty of sense, but the trial court ought to have dismissed the complaint a long time ago on the same basis, yet did not. We talked about that earlier.
MJW — So that’s what Genghis Khan did in his retirement. I always suspected that “secret burial” story. I can’t match you but I think I once got a Bazooka Joe wrapper that said, “When one has nothing to say, it is a time to be silent.”
Well maybe.
I see dismissal as different.
Putting aside the anti-slapp issue (which Is what I think both judges did), dismissal usually only happens if no set of facts could conceivably emerge to support the plantiff’s claims. For example if the facts pled are legally insufficient (and always will be), or the complaint is plainly contradicted in a fundamental way by its own exhibits.
Now it is conceivable that Mann might discover an Email between the defendants saying “ha ha isn’t it fun making up lies about professor Mann”, and from a judge’s point of view he can’t know the likelihood of such a thing at the outset of the case. So he waits for the end of discovery before entertaining dispositive motions. And that seems kinda normal, I know I’ve seen similar types of things before when the unlikeliest allegations have survived for an eternity, or at least to the end of discovery, for this reason.
Of course, we all know (or assume we know) the likely facts and outcome of discovery: no such email, and nothing like it, exists to be discovered.
For example if the facts pled are legally insufficient (and always will be…
They were. The facts pleaded show that Penn State, UEA, and other authorities “exonerated” Mann, but not that Steyn and Simberg believed them. (There was a lot in the last two threads, and now there is a new thread at SteveMc’s weblog, on just how true these claims are.)
Summary judgment — assuming Steyn doesn’t slip up and say something careless in deposition — ends up in the same place. “Okay, now we have affidavits showing that these other authorities exonerated Mann. And still not a scrap of evidence that Steyn and Simberg believed them.” Yes, Steyn ought to win. But he ought to have won before.
I think the judge over interpreted Mann’s pleadings from saying “there were all these inquiries that cleared me” into “there were all these highly credible inquiries that cleared me and which pretty much everyone (including the defendants) believed.”
Yes I agree it’s an error. But it’s a routine error,because plaintiff might conceivably find evidence during discovery, that supports such a position.
(and yes in this case it’s possibly a double error because it effectively guts the anti-slapp law)
I’ve seen variations of this type of thing enough times to no longer be phased by it.
Carrick (Comment #124777)
I like the way this lines up with LuboÅ¡ Motl’s comment about Galileo.
http://motls.blogspot.com/2014/02/galileo-galilei-450th-birthday.html
Galileo being praised in a topic about Michael Mann suing people for defamation is strange. Galileo was, in a number of ways, a precursor to Mann. The fact he’s widely viewed in a positive light shows how bad this entire Mann thing could go. Mann could wind up being a hero who proved global warming like how Christopher Columbus proved the world is round.
Anyway, I don’t see why scientific/mathematical criticisms would be hard to get into court in this case. Mann cited Ian Jolliffe as a statistical authority for his methodology, and Jolliffe wound up (basically) saying the methodology is nonsense. I doubt Mann could cite an authority then tell the court he isn’t an authority.
But as I’ve said a number of times, the case doesn’t hinge on scientific/mathematical arguments, and I think it’d be incredibly foolish for the defendants to delve into those much.
“Mann cited Ian Jolliffe as a statistical authority for his methodology”
Really? Where?
Most people who’ve studied the history of science would agree more with the version quoted by Ledite and would regard what Brandon has claimed as quackery. This would include Steven Hawking and Albert Einstein.
Nick Stokes: http://www.realclimate.org/index.php/archives/2005/01/on-yet-another-false-claim-by-mcintyre-and-mckitrick/
Carrick, I hope the irony of your statement is not lost on you. It’s in practically the exact form of Mann’s argument in his lawsuit.
Thanks, Brandon
Both Mann and Steyn have been compared to Galileo; that was not my point. On the question of the fairness of a DC jury, it wouldn’t necessarily be better elsewhere. Extreme political correctness is everywhere now and that is what Steyn is fighting.
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http://news.nationalpost.com/2014/02/18/mcgill-student-forced-to-apologize-for-racial-microaggression-after-emailing-joke-obama-clip/
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Read the whole article if you want a chill.
If we are going to discuss Ian Jolliffe’s opinion about the “Mannian Statistics” at issue in this lawsuit, this Climate Audit post should be front and center: Ian Jolliffe Comments at Tamino
Brandon:
Actually, what I said and Mann’s argument really have nothing in common. Mann is claiming something is true by appeal to authority. I don’t see a problem with going up against heavy hitters like Einstein or Hawkings, but I’d want to make sure what I was saying could be factually supported first.
Knowing what I know about Galileo’s lifetime and his substantial (positive) impact on science, at first glance what you claimed above looks like pure nuttery.
Were I Mann or even Me, I’d be completely flattered with the comparison.
Galileo was right(ish), but for the wrong reasons. He had heliocentricism correct, but favored the Copernican model, which was incorrect (and completely ignored the Kepler model, which was both correct and contemporary). He was also entirely overbearing and refused to allow that he was wrong in any way. At one point, he told another budding scientist (a Franciscan friar no less) that dared (correctly) to challenge Galileo regarding the orbits of comets (the Friar thought they orbited as planets do, Galileo thought they were smudges in the sky) that “[y]ou cannot help it, Signor Sarsi, that it was granted to me alone to discover all the new phenomena in the sky and nothing to anybody else. This is the truth which neither malice nor envy can suppress.”
Sound like someone? 😉
Now, he did do some good things, mainly being by being famous and being bombastic and thereby drawing attention to some new things, but, absent Galileo, science may have advanced at an even faster rate. He did cause a number of problems with his behavior, like turning the Pope from a BFF to an enemy, not by preaching heliocentricism, but by insulting the Pope in the book he wrote preaching heliocentricism. And preaching it was, as Galileo had exactly zero evidence he was correct.
-end sidetrack
Joseph W.
Hehe…
Maybe they could be held bi-annualy on 19th November?
Or 15 December, maybe…
By the way, given your previous suggestion you might like this if you haven’t seen it already.
MJW,
What is best in life (or something similar) from the film ‘Conan the Barbarian’, wasn’t it?
It’s funny, the odd bits of lint that stick to memory.
It was, Mark, but they took it from the Genghis Khan quote I linked to above. (Leaving out the part about how it was good to ravish their wives and daughters after killing them.) Conan’s companion “Subotai” in that movie was also named after Genghis Khan’s best general.
Joseph, thanks! Being able to credit that quote to Genghis gives it much more cred than having to credit it to Arnold!
🙂
Spellbound, much of Galileo’s trouble with the state arose with his battles with the Jesuit priests who embraced geocentrism and actively called upon the state to intervene to silence him. How is this like Mann, who is a voice for orthodoxy and seeks to use the power of the state to silence others?
As to having zero evidence that Galileo was right, that’s complete nonsense. Galileo’s Two World Systems dialog lays a very strong case against geocentrism. For example, the phases of Venus–that’s not evidence?
Many other pieces of observational evidence, such as mountains on the Moon,which disproved the Aristotelian position held by the Jesuits that the celestial spheres were perfect spheres, was answered by the Jesuits by them refusing to look through the telescope!
As to his trouble with the Pope, that started with Pope Clement, who I guess you are unaware, had Galileo’s predecessor Giordanno Brunno, burned at the stake.
It’s true that Pope Urban had a much more positive view of Galileo. It’s also true that Urban forced the issue of having his own arguments addressed within the book. But I think of having Urban as a “friend” is a bit like having Kim Jong Un be your “friend”. Totalitarian leaders who can have you killed for virtually any reason is not my idea of a real friend or patron.
People often think of Galileo in terms of his arguments in favor of the Copernicus system, but really his major work is his Two Sciences treatise, written while spending the last eight years of his life in house arrest. Galileo solved the problem of infinity (Zeno’s paradox), developed the first mathematical theory of mechanics, and laid out the foundations for a modern empirical science.
You seem to think it would have been better had Galileo not written what he thought was truth. That is really stretching reality to the point of breaking.
Will J. Richardson #124818,
In the CA post you linked, Jolliffe says, “An apology from the person who wrote the page would be nice.â€
Did Jolliffe get the apology from Tamino or Mann? Tamino no longer has the post available. Does anyone else know?
DCA, the entire discourse between Tamino, Jolliffe and others is available as web archived.
This is Tamino’s infamous non-centered PCA. See the comments by JeffID, JeanS and RomanM here.
This is the thread where Jolliffe first comments.
More back and forth with Jolliffe here.
Galileo’s real problem with the church was not scientific but because he was making theological arguments. Church tried to get him to withdraw these, and he refused.
Carrick, Jolliffe was one of the referees to our original submission to Nature (Referee #1 in first submission; Referee #2 in revise and resubmit.)
See http://www.climateaudit.info/correspondence/nature.referee.reports.htm. As referee, he made a similar comment about PCA as in the Tamino comment. he started his first review;
He started his second review:
he reasonably observed that it would be impossible for a reviewer to resolve the dispute, but that publicaiton of both would provide notice that there were issues. he observed of Mann’s sudden idolization of the RE statistic:
based on circumstantial evidence in climategate letters, I believe that Phil Jones was the new referee (Referee #1 of the revise-and-resubmit) brought in by heike langenburg after the surprisingly favorable reviews of our submission. Langenberg also told to reduce our length to an almost impossibly short length.
Zorita was Referee #2 in first submisison and Referee 3 in the revise. he later apologized to me, saying that his revise review was his worst mistake as a reviewer.
Lucia, may i suggest that you terminate the Galileo discussion. ALternatively that commenters do so voluntarily.
MikeN — Even the Catholic Encyclopedia — which puts a heavy pro-Church spin on the whole affair — doesn’t make that claim. Go to the paragraph that begins “In these circumstances.”
Steve McIntyre: Thanks for the Joliffe quote about “the MBH style of ‘shouting louder and longer so they must be right’.”
Right on the button!
Steve McIntyre, the problem I see with the Jones is the reviewer theory- We have seen him write to Mann ‘went to town’ on papers critical of CRU work. Shouldn’t we expect an e-mail about such a review?
Thanks Carrick. I see that Tamino did apologize.
Tamino was being quite civil at that time. It was about a year later when he started editing posts, and not allowing responses.
For what it’s worth, I have no intention of pursuing the Galileo topic further. I wouldn’t have even made a second comment about it except Carrick’s comment made me laugh. The implicit appeal to authority/investigations was too much like Mann’s argument.
By the way, Carrick brought up the fact Giordano Bruno was burned at the stake. I don’t intend to dwell on this, and you can dismiss it as quackery, but my view is very different than Carrick suggests. I say Bruno wasn’t killed because of anything related to science (including his unfounded belief in a multiverse), and the Catholic church didn’t even consider Copernicism to be heretical. He was killed because he kept saying things like Jesus was a human whose miracles were just tricks. It had nothing to do with science (and Bruno was incredibly unscientific).
But that’s enough of my quackery for this page.
Nick Stokes, no prob.
MikeN, there could be tons of such e-mails. We don’t know since only some e-mails were released. Somebody with the “password” for the full set would have to look for us to know whether he did or did not send such an e-mail.
MikeN, I find politeness from Tamino comes and goes. He has become rather strident as the “pause” continues, it seems.
I agree that Galileo did descend into theological arguments. For example, see this letter to Castelli .
I find the (anti-) parallels with Mann to be interesting, but agree this is peripheral to main topic here. There’s a good resource here. If you go through it, I think some people would be surprised just how many really solid contributions Galileo made in his lifetime.
Most people get exposed to him in terms of the Copernicus dispute, but he was a much more complex individual than that. Even the decades long conflict with the Church didn’t just center just on that one issue.
And it’s interesting to think of the parallels with the intolerance of alternative views by the Church and today by certain sectors of the climate activist community.
Jolliffe was rather reluctant to admit in a blog discussion that he was a referee for a paper that used or talked about using PCA. JeffID was able to confront him and finally render an admission from him. I think that exercise pointed to two important issues in criticisms of public figures like Mann, who is as much or more public by way of advocacy, than science. I believe many climate scientists or other interested technical people, who side with the advocates for more vigorous and extensive government action on AGW, are reluctant to criticize the methods of some climate scientists for fear of giving those skeptical of, or in opposition with, that position material that will be used to further their arguments and causes. With all this pressure some of these criticisms have spilled out and not a few have been aimed at Mann.
In my view legitimate criticisms of Mann characterize him, unlike most scientists, as someone unable to admit to the smallest of errors in his work, someone whose comments and papers’ evidence are mostly carefully worded and construed to support his advocacy position and someone that sees as adequate and legitimate his replies to criticism of his work that many would judge woefully lacking in substance. The basic deception of Mann would appear then to be an advocate masquerading as a scientist.
Re: Joseph W. (Feb 19 20:03),
.
If the lawsuit goes to trial, it is probable that Mann’s lawyers will continue to follow their current strategy of pursuing a massive Call to Authority in claiming that Steyn acted with reckless disregard for the truth — their version of the truth being that Mann was exonerated in previous investigations and that the hockey stick is widely accepted as settled science in the paleoclimate reconstruction community.
.
If that kind of reasoning is accepted as valid, then there is prima facie evidence of reckless disregard for the truth on Steyn’s part. If a trial ensues, Mann’s lawyers will likely present a relatively tight set of arguments that are easily understood and easily accepted in the average juror’s mind, under the assumption that a massive Call to Authority will resonate with a Washington DC jury pool.
.
This same approach has already worked well in convincing a DC judge to keep the prospects for a trial alive. Mann’s lawyers have likely evaluated their chances of success in a DC courtroom as being better than even; and so they will continue using a strategy which has worked very well for them so far.
.
If a trial ensues and Steyn loses, there will be large headlines on the front pages of every major Big Green newspaper. But if Steyn wins, it’ll be reported on the back page of Section B. Such is life.
Kenneth, reviews are anonymous, so it is no surprising ha Jolliffe would refrain from such an admission. He also was unaware of the MBH issues at all, and even forgot details between his review and tamino’s thread.
What is a good source of climategate e-mails?
foia2011.org
Appears to be offline.
I read the links kindly provided by Carrick in #124832 above, the last one of which led me to JeffId’s linked blog here.
Jeff made it quite clear that in Mann 08, Mann obtained high validation by replacing actual proxy data with pseudo proxy data extrapolated from other proxies!
How to explain what can only be described as data torture to a jury…
I might ask the Jury what their opinion would be of bank statements in which some of their actual transactions were replaced with pseudo transactions extrapolated from other bank accounts!!
This climate gate site should work.
> If the lawsuit goes to trial, it is probable that Mann’s lawyers will continue to follow their current strategy of pursuing a massive Call to Authority in claiming that Steyn acted with reckless disregard for the truth
“Reckless disregard” is a term of art. It does not mean the truth was available and the publisher ignored it. It does mean that the publisher (Steyn) entertained actual doubts.
Good luck proving that, or even finding *any* evidence that Steyn had any doubts about his position.
The following do not constitute actual mallice:
* ill will or intent to harm;
* extreme deviation from professional standards;
* publication of a story to increase circulation;
* carelessness;
* failure to investigate facts;
* contact a subject for comment; or
* correct or retract false statements after publication;
* reliance on a single biased source; and
* inclusion of edited quotations that do not materially change the meaning of the speaker’s words.
So, if Steyn can show he relied on even a single source, even a biased one, it doesn’t matter if there are a million other unbiased sources that say the opposite. Provided of course that Steyn believed that biased source.
Criminals?
Here is a link to the thread at JeffID’s AirVent that relates to Ian Jolliffe’s faulty memory. People can judge from the facts of the matter for themselves but I found Jolliffe’s selective forgetfulness a bit hard to believe. That forgetfulness in my view has more to do with Jolliffe wanting to remain as neutral as possible in the AGW discussion than statistical matters, but I tend to be skeptical even when of what I am being skeptical agrees with my position.
http://noconsensus.wordpress.com/2008/09/19/ian-jolliffe-at-tamino/
In a link to CA below, Jolliffe puts into words my thoughts on his reluctance to criticize and his view on Mann not being able to admit to any errors. Note that Jolliffe appears hesitant in condemning the decentering or the fact that Mann et al did not explain the use of an unconventional method.
“I am by no means a climate change denier. My strong impressive is that the evidence rests on much more than the hockey stick. It therefore seems crazy that the MBH hockey stick has been given such prominence and that a group of influential climate scientists have doggedly defended a piece of dubious statistics. Misrepresenting the views of an independent scientist does little for their case either. It gives ammunition to those who wish to discredit climate change research more generally. It is possible that there are good reasons for decentred PCA to be the technique of choice for some types of analyses and that it has some virtues that I have so far failed to grasp, but I remain sceptical.
Ian Jolliffe”
http://climateaudit.org/2008/09/08/ian-jolliffe-comments-at-tamino/
Advocates and partisan politicians are much less likely than scientists to admit to any mistakes as their positions are most often built on public relations and imagery.
Sigh. So many continue to miss the point.
Admissibility of PSU and NSF reports will not be an issue if Mann’s lawyers provide a foundation, as any competent attorney would do.
The defendants will deploy a “truth” defense. And for that defense to work, they have to prove fraud. Which means that they have to prove Mann gained something by false means. For that to work, the defense will have to prove, first, that the fraud occurred, and that the conclusions of both PSU and NSF are fatally flawed. In other words, they have to refute not one document, but three.
So proving that Mann falsified data will be nearly impossible. But proving he gained by it will be absolutely impossible. The defense cannot succeed.
@Keith Pickering. This seems absurd to me. Surely the word “fraud”, especially as used by a shock jock like Steyn, includes the way that many of us think of Michael Mann: pretending to expertise, attacking his opponents, refusing to admit mistakes, catering to a fan group who want him to be right, and actually far far out of his depth. I don’t see why it has to match some definition of a Nigerian spam fraud, or a graduate student fudging data.
Keith: I would be amazed if that was the defense.
First of all there is a huge argument about whether the term fraud was meant in the sense of criminal financial fraud. That seems an incredible stretch. I seem to remember that Steyn said that the hockey stick was fraudulent, which is a long way from saying that Mann committed financial fraud.
Secondly, it’s possible that the judge and/or jury may eventually decide that much or all of the defendant’s writings were hyperpole, opinion, etc. The judge seems to have *already* decided that large parts of the defendant’s statements (some of the ones that Mann find most objectionable) were exactly that – and that was on a reading were everything was interpreted most favorably to the piaintiffs (as it must on a motion to dismiss, but need not be later in the process).
And thirdly, truth is not the only defense that the defense can use (in the US). Mann is a public figure. Which means that people are allowed to write and say false things about him, provided they don’t do it with actual malice (a legal term of art) – which fundamentally boils down to them not really believing what they said – even if the basis of their belief was incorrect and poorly founded. As long as their belief was genuine, they are likely to get off the hook.
Boris:
Or the NSA.
Van Storch and co were suspecting Mann was trying to keep their paper from getting accepted, around the same time that Steve was getting rejected by Nature.
Keneneth Fritsch:
Ian Jolliffe:
I don’t know about you, but that’s likely how I might have stated a position too i.e., expressing a best opinion but allowing for the possibility that there might be some special circumstances that I’m not aware of where there might be applicability.
Keith didn’t mention in his Science piece but both of us
think that you’re on very dodgy ground with this long-term
decline in temperatures on the 1000 year timescale.
After Mann was very unhappy that Osborn and Briffa got published. He sent his own review unsolicited.
Previous to MBH, were there other poleo studies that used “decentered PCA” or is Mann the first to use it?
that’s “paleo”.
Re: Keith Pickering (Feb 20 14:33),
And you know this how?
IANAL, but my impression is that you only need to use truth as a defense if the plaintiff isn’t a public or limited public figure. But that horse left the barn a long time ago.
Keith Pickering — we talked about this in the first thread, but if “false” is an element of defamation in DC, as it appears to be, then the burden is on the plaintiff to show the statements are false, not on the defense to show they are true.
There’s no reason at all they’d have to show “fraud” by that particular definition. There was a lot of discussion of this in the first thread too. (If I accuse an umpire of dishonesty by saying the losing team was “robbed,” that doesn’t mean I said he took money or goods by force or intimidation; and he can’t win the defamation case against me that easily.)
We talked about it at the top of this thread, but introducing the reports is a lot more than laying foundations…there’s a question of how to get them in past a hearsay objection, if the defense objects.
I just want to say publicly that the NSA is made up of hard working people who deserve our respect and admiration.
Speaking of using truth as a defense, any updates on Mann vs Tim Ball?
Boris – I feel a sudden urge to make that part of my e-mail signature.
Carrick (#124857)
Boris (#124867)
🙂
I believe the term “fraudulent hockey stick” can be interpreted as “obtained with software that finds hockey sticks in red noise data” and “obtained by careful selection of which proxies to use (cherry picking)” and “obtained by refusing to admit the Tiljander sediments were used upside down and the same proxy is one way in some time periods/manuscripts and the other way up other times” and “obtained using precipitation proxies as temperature proxies”.
The idea that this has anything to do with criminal financial fraud is absurd.
Saying someone is crazy or evil is not defamation–that is an opinion. Claiming that they murdered someone in their past or abuse children or took bribes might be defamation. I have trouble thinking of very many cases where public figures have won defamation cases in the USA.
RB (Comment #124859)
“I don’t know about you, but that’s likely how I might have stated a position too i.e., expressing a best opinion but allowing for the possibility that there might be some special circumstances that I’m not aware of where there might be applicability.”
I would have added for clarity that those special circumstances were not covered by Mann’s use. Jolliffe was a referee for this paper critical of Mann’s use of PCAs and should as an expert on PCAs have been able to, in conjunction with reading the paper being criticized, to make this definitive statement – or at the very least have declared that the Mann was wrong in not showing why his use was an exceptional case. I think Jolliffe had to be goaded into his public statements on this matter and then only after JeffID had made it neigh onto impossible for him to not admit to refereeing and then commenting.
“I just want to say publicly that the NSA is made up of hard working people who deserve our respect and admiration.”
For the sake of individual freedoms I can hope you are wrong about their being hard working.
I email myself that periodically. Well, things to that effect. You don’t need to say it publicly, they’ll still see it.
Of course, if you have a priority message for the NSA guys, you need to find an appropriate Middle East email address destination to obtain express service.
Re: Mark Bofill (Feb 20 19:16),
That reminds me of the joke psychiatrist answering machine message. There are instructions for people with different conditions to press different numbers until it gets to paranoia. Then the instruction is that: “there is no need to press a number because we know who you are.”
DeWitt,
:> I’ve always loved that one too.
I think it’s kind of neat. Like talking to God. They probably won’t answer your private prayers, but they’ll hear them.
Actually, that part is probably wrong. Considering the volume of material, I’d expect the odds are overwhelming that nobody’s paying attention unless you trigger with some keywords, or have some special circumstance or something. Just because it’s within my power to inspect any grain of sand on a beach I want to doesn’t mean I’m going to take the trouble to, of course.
The only hope Mann has to prevail in this is continue what he has built his career on: selectively excluding inconvenient data and forcing the information left to tell the story he wishes the rest of us to see. And then to get someone lacking in critical thinking skills to ratify it from a position of authority.
MikeN (Comment #124848)
February 20th, 2014 at 12:43 pm
Appears to be offline.
They probably got the same warning I did which said some stuff about files I had in my possession.
Joseph W,
I hope your day job is getting the attention we are. Your’s, JD’s and some others’ have been some of the most informative comments in this area that I’ve ever read. It’s really wonderful to savor the pith here and without the damned rings.
Steyn has filed his answer to the amended complaint. I wish he’d left out the smart-alec stuff, which may make him feel better, but, I believe, does him no good. (Even though he treats the complaint with the respect it deserves.) Most of his answer consists of denying the various assertions in the complaint, or denying sufficient knowledge to confirm or deny. I haven’t yet matched up the complaint to the individual responses.
Steyn writes about his response in a short article entitled “The Mann I Love.”
Re: MJW (Feb 20 23:20),
.
There it is, proof positive that Steyn is a serial denier.
J. Ferguson – Thank you. My new day job starts in a few days and I expect to get a lot quieter after that. It’s been a good discussion.
Beta Blocker (Comment #124888)
I wish I’d thought to say that!
Good idea of steyn to file counterclaims, and they do bring quite a few issues right into the open, but I am not sure they are legally well drafted. I hope he got advice on writing them.
One thing that puzzled me is that in a previous article, steyn said he was giving discovery responses. I found that surprising if he has only just filed his answer.
Re: MJW (Comment #124886)
The wise-cracking probably doesn’t help him in the case, but on the other hand without it we wouldn’t have this …
“111. Denies the allegations in Paragraph One-Hundred-And-
Eleven of the Amended Complaint, and feels Plaintiff is
going round like a circle in a spiral, like a wheel within a
wheel, like the circles that you find in the tree-rings of
your mind.”
And another thing that’s way out with the radiative greenhouse calculations is well explained in a comment on WUWT which points out that a blackbody by definition absorbs all radiation and does not transmit any.
But the surface of the oceans (say 1mm deep) obviously does transmit most of the radiation which then warms layers below. So the surface of the ocean is not a blackbody and it would require far more radiation than the SBL calculations indicate to raise its temperature to the observed level.
As I have been saying, there is obviously nowhere near enough direct solar radiation reaching the Venus surface either. So obviously there is a non-radiative supply of energy as well as the direct radiation and these work together to raise the surface temperatures to what is observed. Remember, back radiation can only slow radiative cooling: it cannot actually add thermal energy (like the Sun does) or raise the surface temperature.
The non-radiative supply of energy is actually energy that has been trapped over the life of the planet by the gravitationally induced temperature gradient, and more can always be added to the troposphere by the Sun.
The key to understanding how this energy actually transfers from the colder atmosphere to the warmer surface lies in understanding thermodynamic equilibrium and the isentropic state, all of which is explained in my book “Why it’s not carbon dioxide after all” available through Amazon late April.
Comment-124877
It has been suggested that concerned American citizens should email each other copies of the US constitution so they can be sure that ‘The Powers That Be’ have at least read it.
Perhaps people should start doing that with IPCC review comments…
I hope so too. In answering the motion to dismiss, Mann’s lawyers tried to claim these motions were frivolous (which of course they were not) and demanded attorney’s fees as compensation for having to respond to them.
In that context, it was just a “jerk move” on their part. But if Steyn’s drafting claims on his own, and D.C. law allows that kind of thing…he might end up getting soaked for further damages himself based on his counterclaims. The pleasure of screaming “That’s not fair!” is as nothing to the pleasure of not paying out to the other side.
MJW @ 124888
Actually I thought he did okay for a pro se pleading. I’ve seen much, much worse. Editorializing isn’t going to help so I agree it would have been better to have left it out but I didn’t see anything that will cause him a real problem.
On a side note, while re-reading the Amended Complaint I realized that Mann actually puts the Climategate emails at issue and by any fair reading admits their authenticity … see paras 19 and 20. I suppose Nick will still argue the judge will need to hear from Mr. FOIAA though.
I spent some time reading the case you cited earlier. I am hard pressed to believe Mann could survive appellate review, but if Mann isn’t personally paying the attorney’s fees he might be perfectly happy with a jury finding that he and his work is not a fraud, etc. even if it were overturned on appeal on First Amendment grounds. He will still claim vindication.
I’m not entirely sure they will grant an interlocutory appeal, but the defendants have some nice help in that regard.
I would agree that one could believe those things (however wrong)…but I would be very surprised if Steyn knew of any of them prior to his comments.
In Steyn’s response, check out his slap at Phil Plait in paragraph 30. And Steyn goes a little overboard, but entertainingly so, in paragraph 111.
Boris writes: “I would agree that one could believe those things (however wrong)…but I would be very surprised if Steyn knew of any of them prior to his comments.”
In fact, Steyn had commented on the Hockey Stick on a number of occasions, including a direct reference to the first issue itemized by Craig as “obtained with software that finds hockey sticks in red noise dataâ€. In a 2006 article spotted by David Appell see http://www.freerepublic.com/focus/f-news/1555298/posts, Steyn
wrote:
So in support of Boris’ point, there is evidence that Steyn was not only aware of the line of argument referred to by Craig, but had written about it previously, using the same disparaging word as in his 2012 blog post.
Does anybody have an update on the tim bell matter or legal filings from it? I have read the claim that Mann has failed to pursue discovery and/or has failed to prosecute for 3 years thus effectively losing the suit. Is that correct or incorrect?
Steyn has referred to the “red noise” part (using different language) many times in his columns over the years — specifically to the idea that hockey sticks can be generated from random numbers, and to his belief that the Team uses such techniques. Here is an example from 2006. Also to cherry picking — here is an example from 2009 (likely in reference to SteveMc’s “most influential tree” post that I linked in the previous thread).
I don’t recall reading any older column where Steyn specifically referred to Tiljander (and I’m not going to search very hard to see). But he did rely on SteveMc’s work, at least indirectly, in those older columns, so he may well have been familiar with that part.
(One of his earliest reactions to Climategate was, I believe, this. Some of the specific matters we’ve discussed over these threads are mentioned in that column.)
Edit: I see SteveMc beat me to the first link.
Ah, I was mistaken. So, yes, even though that claim isn’t true, Steyn probably sincerely believed it.
Borris,
On what basis do you say the claim isn’t true? You’ve obviously seen the MM PNAS response to MBH’08 which refers to Stockwell ’06 http://landshape.org/images/script.pdf
What error did Stockwell make?
Boris (#124902) –
I think you are sincere in your beliefs, too.
Paragraph 24 appears to be missing a line.
I wonder how many people would get the reference to tree rings in your mind.
Copner, in his filing Steyn says that Mann is stalling the discovery process. He appears to be doing that in this case too.
Steyn is pointing out that Mann is using the courts to harass skeptics. This would make him the Brett Kimberlin of climate science.
Is Steyn allowed to file counterclaims, asking for $10 million?
Yes, anyone’s allowed to file counterclaims, asking for however much he likes. Whether those counterclaims survive legal scrutiny is another matter. (I’m not going to research D.C. law to see how Steyn’s stand up. I hope he has.)
I read Steyn’s answer. Cuteness is a risk in pleadings. On the other hand, if he is not going to have legal counsel, it may be the only way to get some facts and ideas in front of the judge.
Mann’s complaint was a whiney self-indulgent journey in need of sober pruning–mildly surprising given the big firm legal support he has. (Cozen O’Connor has 575 lawyers in about 25 cities and three countries).
It is usually difficult to extract info about legal fees even when they are an issue of claimed damages. Either Climate alarmism pays really well or perhaps somebody has stepped up to help pay Mann’s legal fees.
One of his lawyers (former EPA lawyer Peter Fontaine) founded the Climate Science Legal Defense Fund to fund the fight against FOIA requests because as we all know, openly sharing data and methdologies is anti-science.
With absolutely no factual basis of any kind, I recklessly speculate that Mann is receiving support through that entity(CSLDF). The players must know each other pretty well by now. Fontaine tangled with Chris Horner over the FOI stuff and Fontaine was also Mann’s atty when Cuccinelli went after Mann.
On the merits, Mann’s claim is very weak for a number of reasons (largely captured in Steyn’s affirmative defenses) but good lawyers make a substance difference in outcomes and Steyn is at risk.
Joseph W, in your link http://www2.macleans.ca/2009/12/17/the-emperor%e2%80%99s-new-carbon-credits/2/ , Steyn quotes the delightful comment in CRU computer code:
This was the original “Briffa bodge”, a predecessor technique to simply deleting the adverse data from the graphic.
As Jeff Id has reminded us recently, this is precisely what Mann did with the MXD data in Mann et al 2008 though using a different technique for the artificial adjustment. Carrick, in a previous comment http://rankexploits.com/musings/2014/comments-on-mann-continued/#comment-124502 , stated that Mann had “falsified data” and cited his handling of MXD data in Mann et al 2008 as an example.
On this point, Steyn appears to be drawing a similar conclusion as Carrick.
MikeN, yes I read that.
My question is does anybody have any documents or update directly from the tim ball case? The comments at Bishop hill go further than steyn’s filing with regards to alleged stalling.
1. It’s odd to call what Stockwell gets a “hockey stick” given that it has an MWP higher than the 1961-1990 average.
2. There’s no validation step?
MikeN (Comment #124906)
There is evidence of advocating such action this in an email Mann wrote in 2007:
http://yourvoicematters.org/cru/mail/1189515774.txt
Boris:
What’s it like to love Big Brother?
Read the Stockwell paper again.
For a fair and detailed analysis of hockey stick methodology for do-it-yourselfers, I recommend this marvelous work from Iowahawk five years ago: http://iowahawk.typepad.com/iowahawk/2009/12/fables-of-the-reconstruction.html
You can see how sensitive the Mann model is to data selection and subjective factors. It isn’t so much that the published Hockey per se is a fraud (the selected data supports the graph) but the consciously promoted illusion of logical necessity and robustness combined with fierce resistance to reasonable scrutiny makes the project suspect at best.
“What’s it like to love Big Brother?”
This doesn’t really respond to what I said, but my big brother is a good guy. And happy that the Tarheels won last night.
Boris:
I agree with you.
But that criticism is valid for Mann2008 also. Not a hockey stick either, but MBH98/99 certainly qualifies for that.
That’s the critical question of course. Do your proxies do a better job than red noise? Stockwell needs to compare what he gets using red noise to what he gets using e.g. the MBH98 proxy series.
Re: Carrick (Feb 21 11:32),
That raises the question of how you generate the red noise series. I don’t think it’s appropriate to use a single AR coefficient to generate a few thousand series. When I treated the ~1200 individual proxy series from Mann08 as noise time series and fit a fractionally integrated model to each (ARFIMA(1,d,1), I found a range of different coefficients including a significant number with the d coefficient (fractional integration) greater than 0.1.
What I did then was to generate a single random series from each set of coefficients and ran the set through the Mann-O-Matic as coded by JeffID. It selected 31% of the random series and generated a hockey stick (see here). I probably still have the data on my computer somewhere if anyone’s interested.
Copner (Comment #124900)
A comment at Bish gives this link:
http://www.principia-scientific.org/michael-mann-faces-bankruptcy-as-his-courtroom-climate-capers-collapse.html
which says the “lawsuit against Ball was rendered dormant for failure to prosecute”
DeWitt, thanks for the reminder to your post. You’re absolutely right that properly modeling the noise is a huge issue, if you’re going to try and assign a probability to the proposition that your particular reconstruction occurred by chance.
It’s my impression that this noise modeling, and the Monte Carloing in general, is something that Mann has had consistent problems with.
My comment 124918 went to moderation. I see from WUWT that the guy that says “lawsuit against Ball was rendered dormant for failure to prosecute†is a Slayer and links to him are banned there. He doesn’t cite anything to back up his statement. Nevertheless, it is true that cases can be thrown out for taking too long. It is even used as a defense tactic. I’m not a lawyer, so this is just my opinion.
Ledite that is my point. Is there any way to verify the claims regarding stalling and/or dormancy?
I checked with Tim Ball and the Ball lawsuit has not been dismissed. They have outstanding discovery requests, but to go from mere delay to succeed in a motion for dismissal is a large step and one that has not been taken.
Mac continues to reveal Mann’s exaggateraions. Now a second exoneration refuted.
http://climateaudit.org/2014/02/21/mann-and-the-muir-russell-inquiry-1/
Though I’d like to see it go to trial, I don’t see it going that far. Steve is spoiling it for us.
“What I did then was to generate a single random series from each set of coefficients and ran the set through the Mann-O-Matic as coded by JeffID. It selected 31% of the random series and generated a hockey stick (see here). I probably still have the data on my computer somewhere if anyone’s interested.”
DeWitt, I agree that a model with LTP (fractional d less than 0.4) will generate more hockey sticks than an ARMA model of the same data – even though the ARMA model with a sufficiently high ar will generate a goodly portion. I also agree that it is easier to fit a LTP model to reconstructions because of the length of those series compared to the instrumental record. It should also be noted that when proxies are selected after the fact of measurement that all one need to show is that spurious hockey sticks are reasonably available using that incorrect selection method.
I have also thought that one could easily propose that temperature reconstructions could well be modeled by LTP while the instrumental record would not model well to LTP, even if sufficiently long instrumental series were available. Proxies work differently than thermometers and further some proxies, if not all, could well have better long term response (to more than just temperature) memories than climate does for temperature.
Ledite, according to the Mann cheerleaders, this John O’Sullivan is a fraud who is collecting money for himself while pretending to help Ball. This may be a way to discourage donations but who knows. The sites promoting the lawsuits have also gone quiet.
Ball is also being sued by Andrew Weaver, and apparently that one has gone quiet as well. The only site I could find in Canada wants $6 for the details.
Now some, not Eli to be sure, but maybe Mark Steyn, may have not noticed that the court has denied their special motion to dismiss under the DC Anti-SLAPP act. Still pretending that nothing has happened Steyn’s first claim for damages, based on the DC Anti-SLAPP act appears to find something in that law that is not there, e.g. the possibility of an award for damages based on a violation of the anti-SLAPP act. Popcorn please.
No idea what you’re on about, Eli, but I agree with the popcorn part.
Some interesting tidbits. 1. There was some speculation as to why the lawsuit was brought in DC. Turns out that Mann’s attorney is only licensed to practice in DC. http://www.williamslopatto.com/john-b-williams.html 2. Williams firm is small, and it appears that only he has defamation trial experience. He may or may not be a good lawyer, but his firm isn’t going to steamroll anyone with its size. 3. Messing up the Muir Russell “exoneration” (See SteveMc http://climateaudit.org/2014/02/21/mann-and-the-muir-russell-inquiry-1/#comment-481844) is a major gaffe coming on top of the Nobel prize fiasco. Personally, I suspect that SteveMc will turn up more gaffes, but we will see.
JD
Eli Rabett (Comment #124927)
“Now some, not Eli to be sure” may recognize that when the DC court denied the anti-SLAPP motion to dismiss, that the court did not require Mann to actually proffer evidence which “demonstrates that the claim is likely to succeed on the merits”. § 16-5502(b), DC Code. In lieu of requiring Mann to proffer such evidence, the DC court just accepted what Mann pled in his complaint as true and ruled that Mann demonstrated that it was “probable” that Mann would succeed on the merits. The phrase “likely to succeed on the merits” is a term of art with specific meaning; evidence is required to prove such “likeliness”.
That is only one reason I believe Mann can prevail at trial and lose on appeal.
Small supplement to comment 1 above. Williams, according to his bio is only licensed in one “state level” court. He has been licensed in multiple federal courts.
JD
Thanks for the info on O’Sullivan. I browsed the Supreme Court of British Columbia website (It’s amazing how many other “Michael Mann” cases they have). The one of interest for us is “Mann, Michael v The Frontier Centre For Public Policy Inc”, in Vancouver Law Courts, file number 111913, opened 25Mar2011, last updated 12Feb2013. There are no recent judgments for this case.
For $6, you can view the file:
https://eservice.ag.gov.bc.ca/cso/esearch/file/caseBasics.do?fileID=2215840
Eli @124977,
If the appellate court agrees to hear the interlocutory appeal and reverses the Steyn could get the attorney’s fees and costs he seeks in that count, but he can’t get “punitive” damages, at least not directly. There is a thought you can file a malicious prosecution claim if you prevail though so it is theoretically possible to get them that way. Technically the award of fees and costs would come under the special motion to dismiss but I’m not sure Steyn joined that appeal so I suppose he might get it via counterclaim. So sorry, while this isn’t the way a lawyer would have done it it’s no biggie … no popcorn in this respect.
Why is it (a question for the actual lawyers out there) that Mann can sue 2 Canadians? Yet the US has a law (IIRC) that prevents US citizens from being sued for free speech violations (in for example internet contexts) in foreign venues based on the risk of unreasonable speech codes in many places.
I certainly hope Steyn consulted with a lawyer before writing his counterclaims. The last thing he should want is to provide a biased judge the opportunity to sanction him for for filing frivolous claims.
Just wondering if anybody else thinks if you were to turn someone upside-down (intentionally) to get whatever you want from them (IE:info, data, PIN #’s, car keys, etc.), would that be considered torture? We’ll ignore for the moment the person you’ve tipped over (for whatever reason) is already known & acknowledged to be corrupt(ed).
Or to coin a phrase; if a sediment in the data gets tipped over and no one is there to see it, does it make any difference?
Or (without mentioning names eg: Boris -which would be purely coincidental to any commenter’s here.) if an idiot starts writing comments and nobody bothers to read them, is he still an idiot? . . . .or just a well intentioned disciple . ..
MJW, I hope he didn’t consult with a lawyer. Where I practice it is unethical for a lawyer to ghostwrite pleadings, and consulting and helping is pretty much considered ghostwriting. I don’t think a judge would sanction him under the first counterclaim even with the punitive request, but he might on the second one.
BDL (Comment #124933)
From commentary elsewhere (DC Anti-SLAPP Law), it appears that interlocutory appeals may not be allowed for denial of an anti-SLAPP motion in DC. On the other hand, if the case went to trial and then was reversed on the anti-SLAPP issue, Mann might be on the hook for all of the trial attorney’s fees and costs under the anti-SLAPP law.
WJR, I sort of agree … maybe I didn’t make that clear enough. However, if Steyn tries the case and loses and then wins on appeal it isn’t clear (to me anyway) that win would be based on the court’s failure to grant the special motion to dismiss. I suppose the appellate court could reach it that way if it was then assigned as error. In any event, Eli seemed to suggest it was just silly that Steyn included that count. I don’t see any basis for the punitive request, and while a lawyer wouldn’t do it that way, I don’t think, having (re-stating) an anti-SLAPP request for attorney’s fees as a counter-claim is horrific. MJW might disagree though, and one can make an argument that it can’t be asserted that way, it’s past the 45 days, etc. I certainly haven’t researched it.
BDL, the problem with the restatement is, of course, that the trial judge has already ruled, and might get a bit tiffed. Stating that Steyn intends to raise the issue on appeal would be fair, and since EINAL the bunny does not know if this is necessary at this point.
The claim of damages under Anti-SLAPP is where Steyn goes off the rails (was he ever on them?) and, of course, if he is acting as his own lawyer, what can he claim for costs?
Craig L: Mann can sue Canadians in Canada because Canadian law allows that. C’mon
Craig Loehle (Comment #124934)
IANAL, so I could be wrong, but I believe that Tim Ball is being sued in Canada, while Mark Steyn is now a resident of the US. If so, any such law is not applicable in either case.
To add to the frivolity, there are multiple John O’Sullivans and the not one involved with Tim Ball’s defense team writes for NRO, the other one was discussed here. Gotta go buy more popcorn.
Eli, nah, if judges got tiffed every time a party or a lawyer disagreed with them we’d have really grumpy judges. One side always disagrees and almost always says so very explicitly to preserve the issue for appeal. You have a point about attorney’s fees forward. You might even be right about re-asserting the anti-SLAPP request for attorney’s fees as a counterclaim because it comes with its own special rules on how and when to assert. I just don’t think it is inherently goofy since as noted the trial judge can be reversed on that decision and it’s not unusual to have a count asking for attorney’s fees and costs and to plead the basis for the request.
“Messing up the Muir Russell “exoneration†is a major gaffe”
Maybe it would be if anyone had actuality claimed that Mann was exonerated by Muir Russel.
http://www.youtube.com/watch?v=5hfYJsQAhl0
Re: MJW (Feb 21 19:49),
.
Let’s hope Steyn isn’t relying on some sort of legal self-help manual; e.g., something that might be entitled Litigation Case Law for Dummies.
I missed this from earlier today.
Steve McIntyre:
I think that Brandon’s example <a href="http://hiizuru.wordpress.com/2014/02/16/manns-screw-up-2-5-5/"of the Gaspe series is a more clear cut example. See also Steve McIntyre’s original post.
As Brandon explains, the original Gaspe series extends to 1404, so it would fail the cut for Mann’s inclusive 1400-1450 period. In order to keep the series in, it appears the time series was hand edited to replicate the 1404 value back to 1400 to keep the series in the reconstruction.
Here’s the relevant section of the data file:
1400 0.723000
1401 0.723000
1402 0.723000
1403 0.723000
1404 0.723000
1405 0.874000
1406 1.02600
1407 1.02900
1408 1.20300
1409 1.05500
1410 1.16500
The data file is cleared edited, most likely by hand.
No recognition is given to the fact that the file was modified. This sort of hand editing is clearly not standard practice in any scientific community that has any standards.
BDL (Comment #124937)
I should keep quiet about something I know little about, but why start now? So I’ll just say I think that merely providing some background and advice, especially if on an informal basis, wouldn’t be considered unethical by most courts. I tend to agree with the district court judge in Ricotta v. State of California:
I also note that the 2nd circuit held in In re Fengling Liu that an attorney who actually ghostwrote a pleading that was filed pro se was not guilty of misconduct.
Boris writes: “Maybe it would be if anyone had actuality claimed that Mann was exonerated by Muir Russel.”
Uh, Mann did. In paragraph 21 of the complaint, he says that there were nine “separate and independent” inquiries, including two by UEA, and then states in paragraph 24 that “all of the above investigations” cleared “Dr Mann.”
After National Review pointed out that the Muir Russell inquiry and other listed investigations did not exonerate Mann himself, Mann re-iterated his claim that the Muir Russell inquiry (and the others ) had exonerated Mann himself, condemning assertions otherwise as an attempt to “obfuscate and misrepresent”:
The pleadings are very clear that Mann claimed that the Muir Russell inquiry (and the others) had supposedly exonerated him. The claims are untrue.
I think it is appropriate to cross-post this from climateaudit.
.
.
I might have stumbled on what appears to be a funny highly misleading statement by John B. Williams, Mann’s attorney. He included this as a prior representation of a client on his website: “Seabury Management Inc. v. Professional Golfers Association, C.V. 92-530 (D. Md.) Lead trial counsel for plaintiff in antitrust and contract action against Professional Golfers Association of America. Plaintiffs’ verdict of $2.6 million, trebled, plus $4.8 million in punitive damages.” Website is http://www.williamslopatto.com/significant-matters.html
.
The matter was appealed and the appeals court vacated the punitive damages award (para 34) and stated that the highest possible compensatory damages that could be awarded was $2.3 million. (para 32) See 52 F.3d 322: Seabury Management, Incorporated, Plaintiff-appellant, v. Professional Golfers’ Association of America. I don’t see further reported opinions, so it appears that there is a good chance that Mr. Williams actually obtained $5,000,000 less for his clients than what appears on his website. If someone points out that I have made a mistake and that there are things out there that I have missed, I will be happy to correct my post but everything I am seeing indicates that the Williams website has a highly misleading statement regarding his past record.
JD
@Eli:
The dc anti slapp law does allow costs and attorney fees: http://dccode.org/simple/sections/16-5504.html
First it is cost *and* attorney fees, so costs includes things other than attorney fees.
It might include discovery costs, filing costs, expert witness costs, appeal costs, travel costs, etc.
Eli, you may consider your own time worthless, but I doubt steyn does his. So that too.
It would require detailed research to know what is allowable, but it is possible that some of the above might be.
Second, steyn did use an attorney previously, and might again, so the idea that he has no attorney fees is incorrect.
The punitive damages claim is a stretch, but it could be read as a call for rule 11 sanctions.
Of course steyn would still have to win the claim, and prove the damages.
Lucia: This is the first time I’ve posted here. I’ve read your stuff for years though.
Nick Stokes: I have the greatest respect for you. When reading a thread (here and elsewhere), if your name is attached to a comment, I make a point of reading it. You honourably engage those whom you disagree with and that is admirable. I must also say I am hugely pleased with everything you are writing on this thread. It is obvious from your defence of Dr. Mann that his only defence is to be obtuse. I am heartened. Thanks.
JE
Carrick, I’d dedinitely say the Gaspe example is clearer. It’s easily confirmed by looking at a plot or table. As an added bonus, because the series was used twice, it’s basically impossible to argue the extension was done objectively.
I think just about anyone looking at it will see Mann et al manually altered the series so it would cover the entire reconstruction. Add to that the ease of seeing how little data contains a hockey stick, and pretty everybody will accept “fraud” is an understandable interpretation. What good reason could they have had for making up data?
The only problem I see with the Gaspe example is it was only four data points added to the series. I can imagine people trying to downplay it based on that. They wouldn’t be able to do that with the 2008 example.
JD Ohio (Comment #124953)
Seabury Management, Incorporated, Plaintiff-appellant, v. Professional Golfers’ Association of America
As JD Ohio said, the maximum damages the appellate court allowed was $2.3 million, not the $12.6 million Williams claims, based on $2.6 million actual damages trebled plus $4.8 million in punitive damages. (The treble damages resulted from an antitrust claim that was overturned by the court.)
Brandon:
When there’s data tampering, of course, it’s not the number of points that are modified that counts…it’s the overall impact on the result that counts. Which in this case is major of course.
I’m not certain you can’t write off the double entry of the Gaspe series as pure incompetency, but again that’s a question motivation…which is based on opinion or judgement, not pure fact.
The MXD series…I have to go back and read up on that one again. I seem to remember Mann replacing the divergent MXD series with the upward trending temperature record. Maybe you can post on it?
By the way, for people that haven’t seen it, I like the way the data issues are graphically displayed here on Brandon’s website.
John Eggert:
Eh? Obtuse. Got it! He just smashed the copy & paste keys by accident a bunch of times and added lines to his data file! That explains everything. >.<
Carrick:
That is the impression Nick gives.
Naturally, the lies about me will persist a while longer. SM’s unqualified editorializing on the merits adds nothing of value. Mann’s lawsuit v. Ball has gone nowhere and is ripe for dismissal for being nothing more than a cynical SLAPP suit, as is Weaver-v-Ball; both actionable as malicious prosecutions.
Ball’s lawyers are well placed due to Mann’s (and Weaver’s) lack of prosecution being that Mann (and Weaver) stalled for 3 years, not complying with disclosure. On that technicality both Mann’s and Weaver’s cases are thus rendered unwinnable.
As a (substantial) financially interested party in the Mann case, due to my personal indemnity to Ball to compensate him fully if he loses, I’m now utterly confident Ball will succeed. Indeed, if Mann wishes to take issue with any of my published articles on the matter this is now a perfect opportunity for him to (a) post his rebuttal (b) sue me for repeatedly describing him as a fraudster and climate criminal and other ‘misrepresentations.’ As usual, I won’t be holding my breath.
MJW @ 124951
In any event, DC is one of the ones that allows it apparently: See DC Ethics Opinion 330. So, as I read that Steyn may get undisclosed help with his pleadings. I think we all agree he is making a serious mistake proceeding pro se. On the bright side he will make opposing counsel’s life miserable … while your chances of winning go way up it is hard to try a case against a pro se party.
Maybe one of you who understands these things will be able to help me with this.
I was astounded by the “flair” and “embroidery” in Steyn’s counterclaim. I can easily imagine how it could annoy judges to Steyn’s detriment. If this event is serious as I think it is, doesn’t it behoove Steyn to make his best case at every opportunity in plain language?
I’ve been assured by commenters at Bishiop’s that I don’t understand US culture nor our legal procedures. That could be.
But I think I can recognize nonsense when I see it and I think I see it here. If I were compelled by my bench seat to read this, I think I’d be more than annoyed.
It might be that this is good strategy, that it will enrage Mann provoking him to some wilder exaggeration of his situation. But Mann won’t be the only one reading this.
Please help me to understand why what Steyn has done here is a good idea.
Carrick, I agree the fact it was only four points doesn’t excuse it. People can argue it does though, and it may convince some people.
As for the double use of Gaspe, I’m pretty sure that wasn’t intentional. I doubt they realized Gaspe was used in the NOAMER network. However, incompetence doesn’t change the impact. The duplication shows they didn’t apply any objective standard for using or extending the data. Their use of Gaspe as an individual proxy was completely arbitrary.
On the Mann 2008 issue, your memory is right. I intend to write a post about it, but that will probably be a while off. I still have a bit more to write about MBH98, and I want to cover MBH99 after that. I can jump ahead to the issue if there’s enough interest, but otherwise this will mostly be chronological.
I am somewhat late to this party – and I have not yet read all the comments; so my apologies in advance if some or all of the following has already been covered.
Many of those comments I have read pertain to the admissibility of Mann’s emails, e.g. questions about whether or not he actually wrote (or perhaps even received) them. Some have erroneously (IMHO) suggested that the defense would be required to prove their “provenance” and authenticity.
In one of these chains, JD Ohio (Comment #124533) in patient response (above and beyond the call of duty, IMHO) to Nick Stokes’ Comment 124487 had observed:
To which I would add: least of all, Michael E. Mann. As I had noted almost two years ago, the first paragraph of the Prologue to his Portrait of the Artist as an Aggrieved Mann**, is as follows:
Set aside the fact that the number of emails in CG1 was approx. 1,500 – which hardly merits the depiction of “thousands”. Unless, of course, Mann already knew on Nov. 17, 2009 that there were more to follow! Mind you, Mann has never been known for his ability to be accurate in his claims.
Also, set aside the fact that it wasn’t until Nov. 19 that the emails began to be widely circulated and that it wasn’t until circa July 18, 2012 – i.e. several months after Mann’s book went to press – that the Norfolk Constabulary closed their “investigation”. At which time, they indirectly confirmed that this alleged “hack” has never been proven, as I had noted at the time.
Mann’s claim to the effect that emails of which he was either the author or the recipient constituted his private “e-mail correspondence” is highly disputable. But what strikes me as being indisputable is that he must have already compared those which are (or at least were!) in his possession with those available on the Internet in order to determine that they were his “private e-mail correspondence”.
This being the case, if – as some have suggested – after all this time he were to question the authenticity of the emails (or claim that he could not recall whether or not he’d actually written any that might be presented in evidence by the defense), the first question that should occur to any Judge or Jury member is: “Was he lying then. or is he lying now?”
** OK, this is not the title he and/or his publisher chose; but it probably should have been;-)
J. Ferguson — Per many comments in this thread, no one is going to say it’s a “good idea.”
FWIW I used to clerk for a couple of federal judges, who certainly saw their share of “colorful” pleadings – especially from people who filed suit without lawyers. The judges I knew were (happily) not thin-skinned characters, quite sure of themselves in fact, so they weren’t easy to set off — at least not by any threats to their own egos. They might order you to re-do a pleading if the thing you submitted made no sense, but I wouldn’t expect them to react very strongly to a few song lyrics – as long as the pleading did what it was supposed to (in this case, answer the factual allegations in the amended complaint). ‘course, every court is different and so is every judge, and I do not know the judges in this case. But I don’t think I’ve met one yet who’d change a substantive ruling based on those kinds of things. More likely he’d just get a general sense of, “Okay, we’ve got a smart-aleck here” (rolls eyes) “next motion?”
In court it’s a different matter — the judges I’ve seen want to show they are in control in the courtroom and tolerate a lot less cuteness in there. Steyn has printed a letter of advice he received from a U.S. judge, which I hope means he acknowledges that he needs to tone down the cuteness. At least in court.
For the classic example of a lawyerless plaintiff who went way, way too far in his written motion practice — read Washington v. Alaimo (language warning).
Steyn is asking $5mil in damages and $5mil in hurt fee fees on the basis of the DC Anti-SLAPP statute (there are other claims but we are not discussing them yet). There are two points. First, the amounts that he could claim if successful for costs and time are relatively small. Second, to claim costs after a successful appeal he actually would have had to put out the money for the costs. Does he really have the money to put out a significant amount of costs? Third, the award of attorney’s fees for a pro se litigant are an entire other bag of popcorn as a little googling shows
Eli, he’s already spent hundreds of thousands on lawyers, and he’s only just answered the complaint. The case is probably less than 10% done.
Just because he doesnt have a lawyer right now, it doesnt mean that he didnt have one before, and wont have one again in future. So it is entirely conceivable his costs could run into millions.
Better for him to ask for too much relief, and get less, than ask for nothing and get nothing.
He can also amend his pleadings, and likely will.
Speaking of popcorn inventory, since this thread has further exposed some of the many Things That Make Mann Look Bad, the poor mann may be ripe to go Under The Bus. Speculation, of course.
Andrew
Copner, the point is that Steyn can ask for costs and attorney’s fees if he wins, but he can’t ask for damages under the anti-SLAPP statute in DC and that even if he gets fees, he is going to have a hard time pushing them up as high as you suggest.
John Eggert, it is said “a wink is as good as a nod to a blind man”.
Thanks Joseph W for giving me some perspective on this.
Carrick (Comment #124958)
“By the way, for people that haven’t seen it, I like the way the data issues are graphically displayed here on Brandon’s website.”
In context of DeWitt’s comments on using an ARIMA model with a fractional d and obtaining 30 odd percent (spurious) hockey sticks, I see that the link to Brandon’s site shows 22 proxy series with 2 uber hockey sticks and one maybe hockey stick. Showing proxy series in that manner, and without the interference of the instrumental record which is often attached in these reconstructions and/or the use of spaghetti graphs that obscure the series ending responses in the all important instrumental period, paints an entirely different picture of proxy responses. The true scientist would want to prominently show and discuss these features of the proxy responses and not obscure it or put it in the SI.
http://hiizuru.wordpress.com/2014/02/18/manns-screw-up-3-statistics-is-scary/
My reaction to Mann’s defenses of these shenanigans is not that the antics are scary but rather that they are creepy and a foreboding of a larger problem/issue.
This is the clearest evidence you have, and yet it appears in a footnote. If Mann and his attorneys are trying to fool the court into thinking that Muir Russell completely investigated and cleared him, why is the only place they are doing so a footnote? This looks more like a mistake including the East Anglia report with the Penn State and NSF reports, both of which did exonerate Mann (remember?)
In other words, this looks as petty and inconsequential as most of your complaints about climate science ™.
Brandon is going to get to the bottom of that 16 year old paper, everybody.
Eli. Yes damages seems a stretch at best. And steyn would have to prove his exact costs and attorney fees if he wins them. But your imputation that these are negligible because he is currently pro se, appears to already be incorrect – unless you have a completely different idea of negligible from me, or I venture to say, most people.
Brandon:
Thanks for the reply.
Yes, chronological is good, that way issues don’t get missed. It may take you years to finish though.
I’ve been focussing on the misconduct because this is the part that the investigations have supposedly clear Mann of that is substantive in nature. A lot of what you show demonstrates clear incompetence on his part.
This other shows a lack of ethical groundings which is worse than just being incapable of performing the task you set out to do. As Kenneth suggests “creepy” is as good word.
Then there is Mann’s book. What a treasure trove for the defense.
Kenneth Fritsch–I’ve always been a fan of plotting the raw data first, and Brandon’s example is a particularly nice example of the benefits of doing so.
Boris:
So if you make a false assertion then leave it as a footnote, that suddenly makes it okay to lie?
The assertion is in the text too, the footnote just provides context needed to disambiguate which eight investigations separately exonerated Mann (I believe that particular claim is made multiple times in multiple documents).
If Mann didn’t continually make it relevant, nobody would bother.
Boris, Mann’s Reply Memorandum also stated: “Dr. Mann has been exonerated of fraud and misconduct no less than eight separate times, and Defendants knew Dr. Mann had been exonerated”. The most plausible count of eight includes both Oxburgh and Muir Russell, but, in any event, it’s impossible to get to eight without either.
Nick Stokes has recently said at CA that the figure of eight was “overstated”, but purported to justify the false claim by saying that the claim that Mann had been cleared “eight separate times” should not be construed as a statement of fact, but as rhetorical hyperbole:
The idea that an assertion in an opinion piece that Mann “tortured” data should be considered as a statement of fact, while the assertion in a legal pleading that Mann was cleared “eight separate times” is merely rhetorical is a novel argument that could only emerge in a defence of Mann.
(In comment #124920 Ledite said “ .. I’m not a lawyer .. †– well, neither is PSI’s “CEO and Legal Consultant†John O’Sullivan, despite the false impression that others have had from his blog postings . He’s just an out-of-work high-school art teacher (since his suspension in 2003). More on him and his PSI blogging group can be found at “SpotlightON – PSI ans PSI Acumen Ltd (http://globalpoliticalshenanigans.blogspot.co.uk/2012/06/spotlighton-principia-scientific.html).
It’s hard to disagree with what MikeN said in Comment #124926 “ .. according to the Mann cheerleaders, this John O’Sullivan is a fraud who is collecting money for himself while pretending to help Ball .. â€. Although I have no respect for Michael Mann, I too try to discourage anyone from making donations to the PSI begging bowls.
Eli Rabett suggests in comment #124944 that PSI’s “CEO and Legal Consultant†is involved with Tim Ball’s defense team but not according to Tim Ball, who wrote in an E-mail to Rupert Wyndham, Cc Fred Singer on 26th April 2012 “ .. I was made aware of the charges against O’Sullivan almost from the start. I checked as much as possible because as Fred is painfully aware there are a lot of deviously clever people who spin stories knowing that once it is on the web it has legs. My lawyer has also down extensive checks. It was said, a lie is halfway round the world before the truth has its boots on. With the internet it is all round the world from a multitude of sources before the truth is booted. I legally disassociated myself from O’Sullivan very early and though he provided commentary he never acted as legal counsel .. †(http://globalpoliticalshenanigans.blogspot.co.uk/2012/05/professor-judith-curry-threatened-with.html).
Best regards, Pete Ridley
Steve McIntyre, at least Nick is now conceding the statement that eight investigations separately exonerated Mann is false.
He tried the eight investigations together exonerates Mann, but that suggests that separately the eight investigations were incompetently done (a point I agree on), and that you need to consider them in total to get a semblance of an exoneration.
That doesn’t actually help Mann, so you can expect Nick, who rigorously plays it down the middle, to abandon that one.
As I pointed out to Boris, the footnote provides context that allows us to ascertain author’s intent.
Had the entire claim been encapsulated by the footnote, well I don’t follow why it would be less bad, but the fact it is part of a generalized behavior indicates a systemic dishonesty on this particular point, so this is much worse than just a footnote.
Re: My comment 124953 — Williams exaggerating benefit to client and lawyer ethical rules.
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DC Model Rule 7.1 states:
“Rule 7.1 – Communications Concerning a Lawyer’s Services
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(a) A lawyer shall not make a false or misleading communication about the lawyer or the lawyer’s services. A communication is false or misleading if it:
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(1) Contains a material misrepresentation of fact or law, or omits a fact necessary to make the statement considered as a whole not materially misleading; …
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The commentary to Rule 7.1 states:
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“It is especially important that statements about a lawyer or the lawyer’s services be accurate, since many members of the public lack detailed knowledge of legal matters. Certain advertisements such as those that describe the amount of a damage award, the lawyer’s record in obtaining favorable verdicts, or those containing client endorsements, unless suitably qualified, have a capacity to mislead by creating an unjustified expectation that similar results can be obtained for others.” See link http://www.law.cornell.edu/ethics/dc/code/CRule_7.1.htm (Rules current through March 2013)
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If what appears in the reported cases on the web is accurate, it appears that Williams has committed a significant ethics violation in misleading potential clients about what he obtained for a previous client. Hard to believe he would be so grossly stupid, so it is very possible that there is something unreported out there to support his website’s posting. On the other hand, between the Muir Russell gaffe and the Nobel misstatement, it gives grounds for everyone to carefully evaluate all of his statements. There may be a pattern here.
JD
Carrick writes:
I’ve read the book but, at the time that it came out, I didn’t have a whole lot of interest in parsing more Mann misrepresentations, even though many of them involved me.
But there’s something very curious about one style of misrepresentation.
In the past, we’ve seen occasions (e.g. upside down Tiljander) where Mann has made an inflated claim in one paper (e.g. nodendro in Mann et al 2008) and sort-of coopered up the situation with a backhand acknowledgement in a different paper (resiling on the nodendro somewhat in the SI to Mann et al 2009), but not issuing a corrigendum in the original paper thereby letting the original invalid results continue to be cited (e.g. the EPA Denial of Reconsideration). This was very similar to a similar sequence also involving nodendro claims in Mann et al 1998, with a sly bit of ass-covering in Mann et al 1999 (covering that was made less effective by an outright misrepresentation in MBH99 about MBH98 results – one that Brandon is attuned to.)
In his book, Mann tends to go back to and reiterate the original false claims, ignoring even his own admissions. The case against the misrepresentation in the book is stronger even than the original misrepresentation.
First off, the whole moral superiority about “lying” would mean more if you card\ed that people on your side “lie” all the time–Including McIntyre who claimed to never to be able to recall allowing Mann to be called a fraud at CA, then spontaneous recalling an example within a couple hours.
Maybe if you guys would convince people that all these criticisms of Mann’s work actually mattered in a scientific, you wouldn’t have to dig so hard into emails and legal proceedings looking for “lies”, but whatever.
Carrick, in respect to the Gaspe issue, it attracted little to no interest at the time. However, as someone that has dealt with company audits, it struck me as very odd. It struck me at the time that Mann (and similar) multiproxy work did not involve a lot of fresh “science”, but was mostly a sort of accounting exercise. In company accounts, there would need to be a footnote disclosing the Gaspe extension which was unique. Confronted with a footnote, company auditors would inquire into the policy that purported to justify the extension and whether the extension was justified under GAAP.
Footnotes can be extremely important: the fraud in connection with Enron disposition of assets to non-arms-length partnerships was in the footnotes. As I wrote at CA long ago, I think that Enron failed because of non-fraudulent bad investments; the purpose of the fraudulent limited partnerships was to conceal the failure and prop things up.
When I first encountered incidents like the results in the CENSORED directory, withholding adverse verification statistics and the undisclosed Gaspe extension, I had negligible experience with the academic world and viewed these incidents from my own experience and perspective. Your use of the term “falsification” to describe such data manipulations seems apt to me. I did a post at CA in summer 2005 http://climateaudit.org/2005/06/28/full-true-and-plain-disclsoure-and-falsification/ comparing this academic duty to the duty of “full true and plain disclosure” as set out in securities offerings.
Now that these issues have been revived in the present litigation, it seems to me that, as you’ve already (in effect) suggested, re-examination of these incidents from the perspective of “falsification” would be worthwhile.
Carrick,
“As Kenneth suggests “creepy†is as good word.”
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I would not go that far. It is hard to judge how much is simple incompetence and how much is conscious or unconscious manipulation to get the desired result (that is, recent temperatures are ‘unprecedented for >1000 years’). My inclination is to give him the benefit of the doubt and accept a mixture of incompetence, carelessness, and a very sincerely held believe that a catastrophe looms, which biases his analysis and keeps him from critically evaluating his own work.
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I took the time to follow Judith Curry’s link to the transcript of the American Physical Society seminar which was put on to gather information for the APS’s updated ‘climate change statement’. Three prominent consensus scientists and three prominent skeptical scientists (including Curry) each made a presentation, with the biggest issue of contention being ‘the pause’ and what has caused it. I came away with the very clear impression that those consensus climate scientists completely reject the idea that the last 10+ years of very little warming in any way reduces the probability of high climate sensitivity. Ben Santer showed a graph demonstrating that over most of the Earth, the evolution of measured atmospheric temperature profiles is not even close to what the models predicted….. yet he steadfastly refused to entertain the possibility that the models overstate sensitivity; he offered a host of explanations for why the forcing is much lower than what the IPCC says to explain ‘the pause’, but ignored the obvious: erroneous parametrizations of important factors like clouds have made models way too sensitive to GHG forcing.
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I came away shaking my head in disbelief; I found the transcript very discouraging. I do not think there is any plausible trajectory for measured temperatures over the next decade or two which would have any influence at all on what these folks think… they are convinced that GHG driven catastrophe looms, and absolutely nothing is going to dissuade them of that belief. If ‘the pause’ continues for another decade, as I think is very likely, these folks are going to become ever less relevant. IMO, their sincerely held personal values, beliefs, and priorities are interfering with a rational evaluation of the data. They are wasting their own time and taxpayer’s money while inhibiting technical progress.
The NAS panel certainly exonerated Mann, so you guys can add that to the list. 🙂
Also, I believe Nature (or was it Science?) looked at the emails and saw no cause to investigate. There’s another one. Are we at eight yet?
jferguson, you may be right with regards to the earlier filings, but the latest from Steyn is relatively benign. Almost all of it is ‘Defendant denies…
Now if the judge subscribes to Discover Magazine, Steyn is in trouble.
Joseph W. (#124965) –
Thanks for the link to Washington v. Alaimo. Great way to start the day with a laugh. It gives me a whole new perspective on frivolous court actions.
Boris, I have no idea what you’re talking about when you claim that that I “lied” about recollecting whether Mann had been called a fraud at CA and then remembered an incident within a few hours. I try to document things carefully and rely on notes and documents to assist my recollection. If I do make a mistake, I try to promptly correct it. Even in your above accusation, you say that I corrected whatever error you allege that I made within a few hours.
However, you provide no reference or link to support your allegation that I “lied” about not recollecting something. In any event, I deny your allegation about a “lie” and ask that you support or withdraw this allegation.
In terms of fraud allegations, I had a CA policy (which was consistently enforced up to Climategate) prohibiting commenters from calling people “frauds” – not just Mann. I enforced this policy. Since CA has no prior screening, I ask readers to follow blog rules and, from time to time, would delete or snip offending comments. In this process, I asked readers to identify any offending comments that I might have missed. In Mann’s pleadings, he states that neither McKitrick nor I called him a “fraud”.
This happened on The Blackboard within the last couple of weeks, do you seriously not remember it?
I’ve been a juror on several “inquiries”. From my experience one thing is certain, jurors have no sympathy for pompous, condescending, know-it alls.
I was imprecise in my recollection of a “couple of hours.” It was actually two hours and nineteen minutes.
Before any people pile on and say that my complaint is ticky-tack: THAT’S THE POINT. People lie/misremember/get confused all the time. It isn’t interesting.
Carrick, sadly plenty of things are going to be missed in my series. I’m basically not going to discuss anything that went on with Real Climate or behind the scenes save in that it bears directly on Mann’s work. I’m also probably going to skip a number of submissions/responses, including those involving Von Storch and Huybers. I’ll probably even skip a number of interesting papers by Mann himself (though Mann 2007 will get some attention, as will his 2003 EOS paper).
But even skipping all that and not going into the details any more than I have thus far (and I’ve left out plenty of details), this is going to take some time. I’d wager it’ll be at least a couple months before I cover everything I want to cover. It may be longer if I get burned out or just can’t keep up the pace of a post every other day.
Carrick (#124502) offers the opinion that the Gaspé series, though Mann clearly “falsified†the data, was not an example of out-right fraud. He proffers his opinion that Mann was not motivated by gain.
However, the results clearly did gain him a great deal of fame. I believe he still stands by those conclusions. Clearly Dr Mann feels that the hockey stick has gained up a certain amount of prestige, or else he would not be defending attacks on that reputation by Mark Steyn.
When Montford’s “Hockey Stick Illusion†was reviewed by “Tamino†at Realclimate, he defended the use of the Gaspé series. I listed all the issues that in Montford’s book for rejecting the inclusion.
http://manicbeancounter.com/2010/07/24/tamino-v-montford-on-the-gaspe-series/
Including this, which is relevant to comments #124959 and 124956 (Brandon Shollenberger)
3. It did start in 1404, but until 1421 relied on a single tree, and two up to 1447. The original authors “had not used the early portion of the series at all in their own reconstructionâ€, but Mann had. (p165.)
Re: Brandon Shollenberger (Feb 22 11:59),
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Brandon Shollenberger: A List of Mann’s Screw Ups
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Having now read each of the topics in Brandon’s series that have been posted so far, and after evaluating them from the perspective of someone who has served on a jury in which science related topics were central to a civil lawsuit, I have to say that these are excellent distillations of the various issues with Mann’s paleoclimate reconstruction work.
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For those issues that don’t yet have a visual graphic of some kind associated with them, I think these would benefit from a visual illustration of some sort. That can come later, if the lawsuit actually goes to trial. In any case, only the most minimal of verbiage should accompany the graphical illustrations for each problem or issue, consistent with getting the truth of the problem or issue across to the audience.
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What will be needed if a trial ensues is for one or more persons who have mathematical and scientific credentials — and also the ability to exude an aura of personal professionalism and competency in front of an audience — to go through each topical area in just enough detail to establish its own credibility as an individual topic with the jury. After that, each of those individual elements can be melded into a broad picture of scientific incompetence on Mann’s part.
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Suppose the presentation is professionally delivered by people who have the necessary credentials; and suppose the plaintiff’s lawyers choose to go into detailed attacks upon the credibility of the defense’s evidence. If they do that, the plaintiffs will risk the possibility that the credibility of the defense witnesses and the defense’s evidence of incompetence might be solidified in some juror’s minds — assuming of course that at least a few people sitting on a Washington DC jury would be capable of independent critical thought.
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Is Mann simply incompetent, or is his work a reflection of something which goes beyond simple scientific incompetence?
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As I’ve said previously, I think Michael Mann is a science entrepreneur who is promoting a cleverly-crafted line of science analysis products which fit a powerful market niche in the paleoclimate reconstruction community. It is also possible that Mann may have stumbled upon a method for creating a hockey stick shape which just happened to have the necessary look and feel of Real Science, and had then realized that he had struck gold.
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However, if one examines the pattern of errors that have been discovered in Mann’s paleoclimate reconstruction work so far, and if one stands back and looks at this pattern of errors as set into the broader context of a comprehensive audit of Mann’s work, it is hard to argue against the weight of all that evidence that conscious torture and molestation of data has not occurred.
Boris:
It does matter, even if you don’t find it personally interesting.
Try lying to a federal jury, get caught and see if you find that boring, as a hypothetical example.
Anyway, what you find interesting isn’t really my concern. Nor should you be bothered that I find certain things interesting that you don’t.
SteveF (Comment #124985)
“I would not go that far. It is hard to judge how much is simple incompetence and how much is conscious or unconscious manipulation to get the desired result (that is, recent temperatures are ‘unprecedented for >1000 years’). My inclination is to give him the benefit of the doubt and accept a mixture of incompetence, carelessness, and a very sincerely held believe that a catastrophe looms, which biases his analysis and keeps him from critically evaluating his own work.”
I have given Mann credit, as I note here that Rob Wilson did in a recent criticism of Mann, for initiating the attempts to seriously reconstruct hemispheric and global temperatures back in time. Mann was elevated to star status in his field, as much as an advocate as a scientist, for his hockey stick and before sufficient time had passed to properly critique his work. Once those critiques started trickling in, Mann’s reactions were not to admit to any errors or weaknesses in his reconstructions, as a reasonable scientist might do, but rather to double down on his original work and the work that came after the original.
I have worked with scientists who had a strong attachments to theories or even conjectures. They never liked being shown that they were wrong, but in the end were able to make the admission and move on. That Mann cannot apparently move on is what I find creepy about his behavior and it has nothing to do with competence or sloppiness or even strongly held advocacy positions.
The climate science community and its fans have spoiled Mann, first by uncritically handing him star status for the HS and then by not criticizing his work for fear of making a case for those who might oppose his and their advocacy positions. That well could explain Mann acting like a spoiled kid – because, well, he was spoiled. His reactions to legitimate criticisms of his works in my view have gone beyond being spoiled.
As a Canadian it is very difficult for me to decide of which I am more proud – our Olympic hockey teams and curlers or Steve McIntyre.
The following brilliant quote alone from Steve M is deserving of the Order of Canada – I’ll put in a good word!
“The idea that an assertion in an opinion piece that Mann “tortured†data should be considered as a statement of fact, while the assertion in a legal pleading that Mann was cleared “eight separate times†is merely rhetorical is a novel argument that could only emerge in a defence of Mann.”
Pretty nifty wordsmithing, eh?
Boris (Comment #124994)
February 22nd, 2014 at 11:34 am
**Before any people pile on and say that my complaint is ticky-tack: THAT’S THE POINT. People lie/misremember/get confused all the time. It isn’t interesting.**
Worse than “ticky-tack”
Boris, I had said:
I believe that to be true. In dispute, you point to statements in Finnish by Atte Korhola, a prominent FInnish paleoclimatologist, reported at CA by Jean S, in which Mann’s upside down Tiljander was criticized by Korhola as “scientific forgery”.
You cannot seriously contend that Atte Korhola is part of the “Climate Audit crowd” or that Atte Korhola’s publication of his remarks in a Finnish journal constituted an accusation by myself or a Climate Audit commenter.
Nor do I agree that Jean S’ coverage of Atte Korhola’s remarks, which in the translation offered at CA did not use the term “fraud”, constitute an accusation of fraud by myself or a CA commenter. To the extent that an accusation was made, it was made by Korhola, not me or a CA commenter.
I accept your point that CA did report an accusation by a prominent climate scientist that used a Finnish term that could be translated by an idea similar “fraud”, but I did not connect Korhola’s remarks with your accusations against CA commenters since Korhola is not a CA commenter. Nor am I convinced that Jean S’ article covering Korhola shows that my statement “I don’t recall ever accusing him of fraud at Climate Audit or permitting commenters to accuse him of fraud” was incorrect, let alone a “lie”.
Kenneth Fritsch, you give Michael Mann too much credit. The idea of doing a multiproxy study was not new, nor was the idea of combining nearby series to combat over-sampling. All of that had been done before, and much of the data Mann used had been used in previous attempts. Pretty much the only new things Mann did were the things he did wrong.
I don’t think a person deserves credit for repeating what has already been done simply because he added bad data and unjustifiable methodological quirks. Not even if those let him make far more strident conclusions than had been made before.
Boris, you could have just as easily pointed to references to the Steyn lawsuit as examples of CA calling Mann a fraud.
Reddit engaged in quite a bit of moderation too, in the ‘ask me almost anything’ discussion.
Brandon, Briffa and Osborn, came out with something similar, but going back further in time. Mann was quite unhappy about it, and somehow got a hold of a copy and submitted his own review to the journal to keep it from getting published.
JD Ohio (Comment #124981)
(Re: Seabury Management, Inc. v. PGA)
As far as I can determine, there isn’t.
I found a comment from an attorney on the other side of the case, David Eggert, claiming:
I also found a docket for the case. The circuit court sent the issue of damages back to the district court, and a settlement was eventually reached. However, as we know, the maximum amount the appellate court allowed was $2.3 million, and the circumstances of the settlement suggest it may have been for less. The trial judge originally said the plaintiffs hadn’t proved any damages, which was reversed and remanded by circuit court. So I doubt he was inclined to give them much. Seabury unsuccessfully tried to get the judge disqualified, which bolsters those doubts. I suspect they ended up with significantly less than the upper-limit $2.3 million.
MikeN, do you happen to have any references handy for that? I’m debating on what to write about to bridge discussions of papers, and I’m collecting material on a variety of topics. The abuse of peer review may make for a good post.
I got it from the climategate e-mails. The editor telling either Osborn or Briffa it was up to them, as the review was not requested by them. A later one from Phil Jones trying to make peace got more attention.
1921.txt
Regarding abuse of peer-review, there is Phil Jones saying these people will know what to say without prompting.
Closing comments here. Move discussion to Steyn-Mann steamroller?