Mann’s New Memorandum

Michael Mann’s reply brief in the Court of Appeals has been posted here. Its main points are very similar to their reply memoranda of January 2013 (to CEI; near identical to NR)

Some comments have been accumulating on an unrelated topic. Please comment on this thread. I’ll try to write something over the next couple of days. But in a quick first look, Mann has re-iterated his untrue claims that various listed inquiries investigated and exonerated Mann personally. The untruthfulness of these claims has been discussed in a number of CA posts. I read a comment that Mann had coopered up some false quotations, but haven’t checked these claims.

Also, Mann’s brief does not address the arguments by ACLU and others against Mann’s assertion that the defendants were obligated to acquiesce in the findings of government inquiries, a proposition that ACLU and numerous major news media say is (though not using this exact word) unprecedented.

163 Comments

  1. Steve McIntyre
    Posted Sep 4, 2014 at 4:03 PM | Permalink | Reply

    Transferred comments:
    Tom T
    FYI its 30% reward of recovered taxes to whistle blowers. Quick what is 30% of 39.6% of $2,000,000.

    pohakea
    Submitted on 2014/09/04 at 3:18 PM
    Priceless thread, comments, here and over here, too:
    ” … Mann’s legal defense fund, via Public Employees for Environmental Responsibility (PEER) and GAP’s Environmental program (http://wattsupwiththat.com/2012/07/24/fighting-the-mann/#comment-1041764). …” (David Ross)

    h/t to Bishop-hill comments, Unregistered (Anonymous) Commenter deepthroat (BM thread linked by Grant B, thank you!)

    Brandon Shollenberger
    hiizuru.wordpress.comx
    Submitted on 2014/09/04 at 3:15 PM | In reply to Tom.
    In the United States, donations to a legal fund are only tax deductible if that legal fund is a charity. In that case, it is governed by the same rules as any charity. That includes a number of restrictions on how the money can be spent.
    I’d expect it to be known if a charity was financing Michael Mann’s case so my guess it someone else is financing it as a “gift.” That means it isn’t tax deductible.

    pohakea
    Submitted on 2014/09/04 at 3:14 PM | In reply to Steve McIntyre.
    Priceless thread, comments, here and over here, too:
    ” … Mann’s legal defense fund, via Public Employees for Environmental Responsibility (PEER) and GAP’s Environmental program (http://wattsupwiththat.com/2012/07/24/fighting-the-mann/#comment-1041764). …” (David Ross)

    h/t to Bishop-hill comments,
    Feb 18, 2013 at 12:34 PM | Unregistered (Anonymous)
    Commenter deepthroat, http://www.bishop-hill.net/blog/2013/2/18/brendan-montague.html

    Tom T
    Submitted on 2014/09/04 at 3:09 PM | In reply to Tom.

    I’m not so sure about that. Donations to legal aid are tax deductible and use of legal aid is tax free. I used it myself when I was a poor college student fighting with my landlord. However, in no way did those donating to legal aid or legal aid itself have anything to gain from me winning the battle against my landord. The issue is donative intent. If those behind the fund have an interest in the outcome of the case then the donative intent is broken and the aid is considered income.

    • Craig Loehle
      Posted Sep 4, 2014 at 4:18 PM | Permalink | Reply

      re: PEER and GAP–it seems to me that they are thinly disguised political operations. Unlike public aid, you can bet they only provide help to “certain” public employees/whistleblowers. I doubt if anyone who posts here could get their help.
      Not sure what that does to their legal status as charities in an ideal world, but I doubt if IRS would question their status.

      • Pouncer
        Posted Sep 4, 2014 at 4:26 PM | Permalink | Reply

        As a contributor to the clutter on the unrelated thread, I apologize for distracting the statisticians from that fascinating topic.

        With regard to THIS topic, I rather suppose the Public Employees for Environmental Responsibility (PEER) is somewhat like the US “March of Dimes”. The Mothers March of Dimes was founded to help buy iron-lungs for polio victims. (among other pallative care techniques to offset the horrible results of that disease.) When the need for iron lungs, (etc) was greatly reduced after polio vaccination became common, the March of Dimes could have (a) disbanded or (b) re-purposed itself with a NEW cause.

        The PEER formed to deal with vexatious and frivolous Freedom of Information Requests. But now they are in the fore-front of libel law.

        Interesting progression, and repurposing, that.

        • Craig Loehle
          Posted Sep 4, 2014 at 4:29 PM | Permalink

          Yes, but did March of Dimes only help members of a particular political party? That is what makes it shaky to me.

  2. Jean S
    Posted Sep 4, 2014 at 4:05 PM | Permalink | Reply

    sev-er-al adj. 1. Being of a number more than two or three but not many

    p. 8 [my bold]

    In 2001, the IPCC published its Third Assessment Report, which prominently featured Dr. Mann and his colleagues’ work from MBH98 and MBH99. The Third Assessment Report included the Hockey Stick graph. The report summarized Dr. Mann’s work and the paleoclimate reconstruction work of other scientists, and the report included a graph demonstrating that several different reconstructions, not just those of Dr. Mann, showed modern warming to be unprecedented over the past millennium.^12

    12 See IPCC. “Climate Change 2001 : Working Group I: The Scientific Basis:· Fig. 2.2.1. available at: http://www.grida.no/publications/other/ipcc_tar/?src=/climate/ipcc_tar/wg1/069.htm.

    That appears to be the infamous Fig. 2.21. Let’s count out loud all those reconstructions:

    • Spence_UK
      Posted Sep 4, 2014 at 4:49 PM | Permalink | Reply

      You see, Briffa’s reconstruction corroborates Mann’s and shows the modern warming to be unprecedented.

      Hang on, where does that green line go again? *squints*

      • Jean S
        Posted Sep 5, 2014 at 2:10 AM | Permalink | Reply

        We also learn (footnote 21, p. 11) that the decline in Briffa’s series was not hidden, but

        rather simply not used to infer temperatures after 1960.

        I just can’t understand why a reference to this figure was given. It is THE figure Mann’s lawyers should avoid like the plague. I think we have to blame also Steve, who pressed “Publish” before spelling out to them the whole story.

        • thisisnotgoodtogo
          Posted Sep 5, 2014 at 2:26 AM | Permalink

          Not hidden, “rather simply not used to infer temperatures after 1960.”

          I wonder how variations on that line could go to explain irregularities found in an income tax audit.

        • Skiphil
          Posted Sep 5, 2014 at 5:14 PM | Permalink

          It is striking that they reference that figure, but maybe they figure a snow job might fool the judge. Pretend that they are well aware of the issue and that their brilliant scientific judgment has determined it to be irrelevant.

          btw, isn’t the phrase “not used to infer temperatures after 1960″ more than a bit ridiculous? As I understand it, the main issue with the “divergence” is not whether Briffa’s proxies are somehow more “right” than the actual instrumental records post-1960, but rather, how can we trust such a proxy record that displays striking divergence with the instrumental records we do have?? If the proxies do not correspond to “actual” temps. in the past half century, then how can they be considered reliable over every decade of the past millenium??

        • Skiphil
          Posted Sep 5, 2014 at 5:17 PM | Permalink

          “This medical discovery was not hidden, rather simply not used to influence patient care.”

          “This stream of income was not hidden, rather simply not used to calculate tax obligations.”

          “This physical data was not hidden, rather simply not used to calculate ballistic missile trajectories.”

          and so on…..

    • Kenneth Fritsch
      Posted Sep 5, 2014 at 9:38 AM | Permalink | Reply

      If one ignores the attached instrumental record in the JeanS reconstruction figure above, as one should, the CIs (which I assume are the shaded grey area) for the proxy responses do not allow us to make any statements with statistical significance about temperature levels going back in time and certainly not about modern unprecedented warming.

  3. sue
    Posted Sep 4, 2014 at 4:06 PM | Permalink | Reply

    Steve, did you mean to post Tom T’s email address?

    • sue
      Posted Sep 4, 2014 at 4:07 PM | Permalink | Reply

      haha gone in a flash!

  4. Craig Loehle
    Posted Sep 4, 2014 at 4:27 PM | Permalink | Reply

    Back to the legal briefs, another thing that occurs to me is that Mann seems to be demanding that his view of the world be accepted as “true”. There is no room for different interpretations of data or events by his critics. For example, a tree is a fact, the ring width is a measurement, the reconstruction is a model and the meaning of that (e.g., unprecedentedness) is an interpretation (not a “fact”). He wants to turn very speculative interpretations of complex analyses into “facts” just on his sayso. I happen to not accept either his models or his interpretations of those outputs. Science does involve judgements but he wants to shut those down.

    • Pouncer
      Posted Sep 4, 2014 at 5:41 PM | Permalink | Reply

      Back to the briefs, indeed. It’s interesting that Mann claims, via his filing:

      Nor is there. as Defendants suggest. any whole-sale protection for accusations made regarding an academic or scientist’s work. The Seventh Circuit in Dillworth v. Dudley, a case cited by Defendants in support of their argument. makes this clear. (“We do not suggest that scholars can never maintain a suit for defamation .. .If a professor is falsely accused of plagiarism or sexual harassment or selling high grades or other serious misconduct, rather than of having
      unsound ideas, he has the same right to damages as any other victim of defamation); see also, Chandok v. Klessig, 648 F.Supp. 2d 449. 457 (N.D.N.Y. 2009) (rejecting defendant’s argument that statements were not concerning plaintiff but rather were concerning “results” or “data”

      So, if it’s okay for Mann to assert by analogy that accusing one report of being plagiarized is no different from accusing an academic from being a plagiarist — that both are defamatory — then it must be defamatory to accuse Wegman of being a plagiarist even though there was nothing invalid, let alone fraudulent, in the report.

      Inconsistancy, much?

      • Craig Loehle
        Posted Sep 5, 2014 at 9:34 AM | Permalink | Reply

        Once again Mann’s team has reading comprehension problems. This very case they cite states: “If a professor is falsely accused of plagiarism or sexual harassment or selling high grades or other serious misconduct, rather than of having unsound ideas” so if the accusation is that his research is terrible he can’t sue. Mann is not accused by Steyn of selling high grades or anything else but of conducting shoddy research and being a “poster boy” for IPCC.

  5. Tom T
    Posted Sep 4, 2014 at 4:59 PM | Permalink | Reply

    I agree with the brief that the issue of fraud will be paramount. As the previous thread shows that despite Mann saying that he used standard rules for retaining PCs its rather clear that the simply chose an m value for each step that best suited his end goal.

    The difference between fraud and a mistake is intent. Once deposed much less on the witness stand Dr. Mann is going to have a hard time explaining the litany of “errors” in his method as simple mistakes and not deliberate.

  6. sue
    Posted Sep 4, 2014 at 5:06 PM | Permalink | Reply

    :) page 25, first paragraph:

    “(Defendants’ statements were slander per se because they imputed to Plaintiff”a lack of knowledge and skill in DENTISTRY….”

    (my all caps)

    • Political Junkie
      Posted Sep 4, 2014 at 5:09 PM | Permalink | Reply

      Getting information from Mann IS like pulling teeth – it’s not an error.

    • Quinn the Eskimo
      Posted Sep 4, 2014 at 5:12 PM | Permalink | Reply

      That is a quotation from a case.

      • sue
        Posted Sep 4, 2014 at 5:30 PM | Permalink | Reply

        You’re right. My bad. Thought it was an auto correct for dendro…

        • Posted Sep 4, 2014 at 6:19 PM | Permalink

          Beware that tax laws and interpretations vary between countries and over time (due to both law changes, government policy changes (regulations and advisories), and court interpretations.

        • Posted Sep 4, 2014 at 6:22 PM | Permalink

          Speaking of getting science right, auto-correct is dangerous.

          (A friend was network administrator when a colleague’s computer changed Pentium (the now old computer chip) to a part of a male’s body. Fortunately it was only in-house so he was able to rescue her by using the retract or such feature that some systems have.)

        • MikeN
          Posted Sep 5, 2014 at 4:17 PM | Permalink

          There appears to a mistaken autocorrect where they meant to say ‘before’, as National Review has brought in a new defense under the Communications Decency Act.

  7. Tom T
    Posted Sep 4, 2014 at 5:18 PM | Permalink | Reply

    What has always struck me about this is that Mann has clearly wanted to used the courts for SLAPP suits for a long time. His e-mails make that rather clear. However, it is only after Penn State got a black eye that he finally did so. With everything that has been said about Mann its when Penn State is brought into the discussion that he files a suit. IMHO until now Penn State has refused to let him file a SLAPP suit. With his legal defense fund being run by a Penn State alum I’m very curious just how deeply Penn State is involved in this suit. If his employer is working behind the scenes then this is an open and shut case under IRS revenue ruling 1960-14

    http://www.charitableplanning.com/document/668030

    The reward to a whistle-blower is 30% of recovered taxes. Mann’s legal expenses will probably be around $2,000,000. The highest tax bracket is 39.6%. I’m floating that out there to anyone who may be a better investigator than myself.

    On its face this stinks of Penn State’s involvement.

    Steve: I see no evidence of Penn State institutional involvement. However, PEER is worth looking at, as to whether its involvement triggers any clauses.

    • j ferguson
      Posted Sep 5, 2014 at 6:40 AM | Permalink | Reply

      Tom T, you’d have to know he isn’t paying his taxes for any help he is getting from Penn State in this, wouldn’t you, or do you think simply alerting the IRS to the possibility would be enough?

    • qbeamus
      Posted Sep 5, 2014 at 1:41 PM | Permalink | Reply

      Actually, the amount of reward is set by statute at between 15% and 30%, and within that range is within the IRS’ discretion. (If you don’t like what they decide, appeal is to a a tax “court”–i.e., another guy who works for the IRS–though from there you can appeal to the D.C. Circuit. IRC 7623(b)) The amount can be as low as 10% if the information you’re providing to the IRS comes from the media (or court decision, or other such source). Still, that’s a pretty generous paycheck for just reporting something to the IRS that the rest of the world already knows.

  8. Posted Sep 4, 2014 at 5:19 PM | Permalink | Reply

    That is actually pretty funny. The exonerations are, as you have pointed out Steve, all of the CRU. (Well, except for the Penn State which didn’t actually do anything which might be called investigation.)

    It is like a hypothetical criminal arriving in Court accused of vandalism and pleading, “My Lord, the members of that gang over there have been cleared of any wrong doing and they are all teenagers just like me…I rest my case.”

    It takes a brave or desperate lawyer to make an argument that weak.

    • JimBoMo
      Posted Sep 5, 2014 at 2:55 PM | Permalink | Reply

      @Jay Currie I’m not so sure it is counsel being desperate or brave.

      It feels more like a deliberate and purposeful strategy that counsel and plaintiff discussed at great length. I wold infer that a (likely?) outcome of this strategy is both plaintiff’s and defendant’s counsel invest their main effort on contesting the appropriate/relevance/significance/meaning of the “investigations and “exonerations”.

      Why? I have no way of knowing….but I can speculate. Perhaps plaintiff’s counsel’s intent is to craft arguments with the greatest chance of precluding testimony or examination of the “truthfulness” of Mann’s work (specifically “the hockey stick” in MB98 and MBH99). Asserting “exoneration by authority” fits that end. If they convince the court, case over.

      If not, then they move on to the next layer of protection. I see it as part of a larger, ongoing effort that has been consistent for a long time: the first defensive layer was (still is) ad hominum attacks; the second is “peer review”, “consensus”; the third layer, on exhibit here, is “authoritative inference”. If the intent is to avoid direct examination of the work, then defending each line as vigorously as possible. If “authoritative inference” breaks, then, well I’m sure there is at least one more prescribed line of defense (wonder what that would be). There are many clever lawyers who can think of innumerable ways to delay and deflect.

      To this date Mann has mostly successful at denying (ha!) skeptics direct examination of his methods. Why stop now?

  9. Beta Blocker
    Posted Sep 4, 2014 at 5:21 PM | Permalink | Reply

    .

    .
    After reading the plaintiff’s latest brief, after reading Jean S’ comments, and after studying the above graph that Jean S posted earlier, I come away with these impressions:

    (1) The plaintiffs view the above graph, and similar graphs like it, as being the quasi-official, peer-reviewed, climate science temperature record for the last 1000 years.

    (2) This quasi-official 1000-year temperature record is composed of three scientific contributions: (1) Michael Mann’s temperature reconstruction, (2) Other similar reconstructions, and (3) the Instrumental Temperature Record.

    (3) This quasi-official 1000-year temperature record is properly and appropriately viewed as a unitary peer-reviewed scientific product — for all practical purposes — in pursuing climate science research.

    (4) Therefore, Michael Mann’s temperature reconstruction work has been included by justifiable inference in any inquiries conducted by any investigative body against any climate science research organization, or against any body of climate science research work, which has employed this quasi-official, peer-reviewed, climate science temperature record for any purpose whatsoever.

    (5) That’s their story, and they are sticking to it.

    If a jury trial ensues, and if the judge allows it to be filmed, Mark Steyn could make a mint selling DVDs of the proceedings.

    • jimbomo
      Posted Sep 4, 2014 at 10:06 PM | Permalink | Reply

      “Exoneration by inference”.

      Nicely stated, very helpful – a plausible rationale why Mann’s counsel persists with the “exonerations” that don’t mention him.

      “IPCC published a graph of my work along with Jones & Biffra and the temperature record; committees investigated Jones’ & Biffra’s work & found no fraud; the temperature record is a fact; ergo, by justifiable inference, my work is not fraudulent and is a fact.”

      Steve: isn’t it more accurate to say misdirection?

      • Steve McIntyre
        Posted Sep 4, 2014 at 11:09 PM | Permalink | Reply

        Here’s an ironic story about a mining fraud that I heard about 40 years ago about an incident in the 1950s.

        The promoter had published fraudulent drill results. Believing the fraudulent claims, another promoter launched a takeover for the company and succeeded in acquiring control at great cost. Almost immediately after gaining control of the company and the data, he learned that the published results were fraudulent. He immediately notified the drilling contractor to stop the drilling program. However, the drilling contractor had a minimum footage contract and demanded payment whether or not the program was stopped. Now really frustrated, the promoter authorized a few more holes to finish off the contractual minimum. In those new holes, they found an ore body that was even better than the fake results. The company continues as an important gold miner to this day.

        The deal worked out and there was no civil damages. However, that did not mean that the original drill results had not been fraudulent.

        • bernie1815
          Posted Sep 5, 2014 at 8:35 AM | Permalink

          Steve:
          You have the makings of a movie script in that anecdote?

        • Tom T
          Posted Sep 5, 2014 at 10:20 AM | Permalink

          The simpler example is that getting the right answer doesn’t mean you didn’t cheat on a test.

        • barn E. rubble
          Posted Sep 5, 2014 at 11:30 AM | Permalink

          RE: “Believing the fraudulent claims, another promoter launched a takeover for the company and succeeded in acquiring control at great cost.”

          As I recall, Barrack Gold tried a similar takeover of the Bre-X ‘find’ in Indonesia. With Mr. Munk calling in favours from former Canadian Prime Ministers to former U.S. Presidents. I don’t remember all of it but I believe no one went to jail . . .

          Steve: I wrote several early posts about Bre-X. While the lead site geologist did not go to jail, he either jumped from an airplane, was thrown out of an airplane or disappeared into the Phillipines. One of my interests in the incident was how investment analysts went about their due diligence and how the fraud might have been detected earlier through better due diligence. In my opinion, the unavailability of split core due to supposed need for full core for assaying ought to have sent investment analysts running to the nearest airport.

      • Beta Blocker
        Posted Sep 6, 2014 at 11:02 AM | Permalink | Reply

        THE ORIGINAL REPLY IS STUCK IN MODERATION.
        (Steve, please delete the original.)

        ————————————–

        Re: jimbomo (Sep 4 22:06),

        Jimbomo: “Exoneration by inference”. …. a plausible rationale why Mann’s counsel persists with the “exonerations” that don’t mention him.

        Exoneration by Inference is a good descriptive phrase for the approach Mann and his lawyers are pursuing.

        As I’ve said before on other CA threads, I think Mann and his lawyers have a well thought-out plan as to how best to push their defamation lawsuit. IMHO, their latest brief offers more evidence that such a plan has been in place since the very beginning of the suit. You can think of this plan, Exoneration by Inference a.k.a. Innocence by Association, as being the flip side of the coin of Guilt by Association.

        If the Hockey Stick is, for all practical purposes, and as IPCC Figure 2.21 seems to indicate — the product of a group of scientists pursuing a common body of scientific research; i.e., it is not the end product of the work of one particular scientist pursuing an independent body of research — then there is a case to be made for both defamation of Mann and for actual malice against Mann, in that he alone has been singled out by the defendants as one person uniquely accused of *f*r*a*u*d*u*l*e*n*t* behavior, separate and apart from the group of climate scientists who created the Hockey Stick in the form it is being generally employed today.

        For the argument of actual malice on the part of the defendants to be successfully made to a judge, and possibly to a jury if a trial ensues, the following arguments could be made:

        (1) The Hockey Stick, as it is now being used in climate science today, is as much a fact as any commonly understood scientific fact can possibly be, and it is universally regarded as such by all mainstream climate scientists and by all government institutions which must rely on scientific advice in making environmental policy decisions.

        (2) The Hockey Stick is owned by the climate science community as a whole, not by any one individual within that community. It is not Michael Mann’s hockey stick, it is climate science’s hockey stick.

        (3) No one in journalism who writes articles and opinion pieces which regularly include climate science topics could reasonably claim that they were unaware the Hockey Stick is universally accepted to be scientific fact by all mainstream climate scientists.

        (4) If taken as a single body of scientific research, the various analytical approaches used by the climate science community in verifying the Hockey Stick as a scientific fact have been exonerated as a common body of research work, then the climate science community as a whole has been exonerated; and by all reasonable and justifiable inference, so too have any major contributors to the scientific consensus concerning the Hockey Stick.

        (5) If viewed from within the context of the previous four arguments, the very fact that Mann has been uniquely singled out for defamation by the defendants is prima-facie evidence of actual malice on the part of the defendants, as “actual malice” is defined in current law.

        This is the strategy I think the plaintiffs will use in the courtroom if the lawsuit goes to trial.

        If they manage to convince a jury that the alleged defamatory statements were made, then they have also proven to the jury, by definition and by wholly reasonable inference, that actual malice had to have been present when those defamatory statements were written.

  10. Pouncer
    Posted Sep 4, 2014 at 5:27 PM | Permalink | Reply

    Our host says: “I read a comment that Mann had coopered up
    some false quotations, but haven’t checked these claims.”

    If so, I see some consistancy with his other writings. Dr Mann is either chronologically challenged or deficient in honesty.

    A specific fact claim Mann makes http://www.cnn.com/2012/03/28/opinion/mann-climate-change-email-attacks/index.html

    is “It was no accident that this [climategate] happened on the eve of a major international climate change meeting. Saudi Arabia, the world’s largest exporter of oil, was the first to call for an investigation.”

    As far as I can tell, the actual first call for an investigation was issued by British journalist George Monbiot, The Guardian, Monday 23 November 2009
    http://www.theguardian.com/commentisfree/cif-green/2009/nov/23/global-warming-leaked-email-climate-scientists? “… the data discussed in the emails should be re-analysed.”

    Another British authority, Lord Lawson, followed by the 24th. US authorities from the Republican and Democratic parties were on board by the 2nd of December.

    http://thehill.com/blogs/blog-briefing-room/news/70249-boxer-

    hacked-climategate-emails-may-face-criminal-probe

    http://www.jonesreport.com/article/12_09/03climategate_investigation.html

    The UN and IPCC, on December 4th, in the authority of Dr Rajendra Pachauri “admit[ed] that the charges of data manipulation should be investigated.” http://www.tgdaily.com/sustainability-features/44929-un-calls-for-probe-into-climategate

    It was not until Dec NINTH that “Mohammed al-Sabban, the [Saudi Arabia] kingdom’s top climate negotiator, told delegates at the opening of December 7-18 UN talks … [he had] called for an “independent” international investigation,
    but said that the UN climate science body was unqualified to carry it out.”

    The Saudis were sequenced after the British tabloids, the British Government, the US Senate, and the US House of Representatives, AT LEAST, in calling for investigation.

    Did Mann not know, or was he maliciously pretending not to know, that the Saudi government at Copenhagen was actually among the last and least of authorities calling for an investigation? Do Monbiot, Lawson, Boxer, and Pachauri, like the Saudi consul, all depend on oil money to fund their opinions regarding climate statistics and investigation? Does the negative form of attributation — “no accident” — make the factually spurious claim that the Saudis were ring-masters of the media circus less libelous?

    Gosh Steve, this is fun. Take a statement of Dr Mann’s, and test it. Find the errors. Show the errors. Rinse and repeat ad infinitum. And you get to do this all day?

    Steve: Mann was notified on Nov 29, 2009 that Penn State was opening an inquiry.

    • Skiphil
      Posted Sep 4, 2014 at 11:58 PM | Permalink | Reply

      re: “deficient in honesty”

      It is highly relevant to examine Mann’s claims (in HSCW) that the EPA report was “independent” and “exhaustive” in light of the possibility (likelihood) that Gavin and/or Mann or others in their clique may have been involved in secretive drafting or editing of the EPA’s work. As DGH quoted in a previous thread,

      [Michael Mann's] Footnote 20, “it is also worth noting that a sixth, independent, and rather exhaustive review,of all of the climategate allegations by the EPA provided further exoneration of the various climate scientists involved in the affair. This review was developed in conjunction with the EPA’s denial on July 29, 2010, of the petitions filed by various climate denier organizations and public officials for a reconsideration of the EPA’s endangerment finding that would support the regulation of greenhouse gas emissions.”

      [emphasis added]
      Mann quote claiming the EPA review was “independent” and “exhaustive”

      • Skiphil
        Posted Sep 5, 2014 at 12:00 AM | Permalink | Reply

        also, what report(s) can possibly be considered “independent” and “exhaustive” when the authors (alleged “investigators”) fail to interview critics or properly examine the work which is actually independent of Mann and friends??

      • Craig Loehle
        Posted Sep 5, 2014 at 9:38 AM | Permalink | Reply

        Well, to be fair, government employees do seem to get exhausted quite easily…sometimes asking a single pertinent question just gives them the vapors and they have to go lie down.

  11. EdeF
    Posted Sep 4, 2014 at 6:53 PM | Permalink | Reply

    Law by fiat, ex cathedra.

    • Jeff Alberts
      Posted Sep 5, 2014 at 9:36 AM | Permalink | Reply

      Italian cars in churches?

      • Alexej Buergin
        Posted Sep 5, 2014 at 10:08 AM | Permalink | Reply

        No cars in Guido Brunettis town, where (in my 23rd book) a corrupt judge decides court cases by postponing and postponing and postponing…
        And yes, the author is an American…

      • jc-at-play
        Posted Sep 5, 2014 at 10:14 AM | Permalink | Reply

        Italian cars OUTSIDE churches.

  12. David Longinotti
    Posted Sep 4, 2014 at 7:01 PM | Permalink | Reply

    Above, there is much mention of Mann’s ‘legal defense fund’. ‘Legal attack fund’ is more accurate.

  13. Don
    Posted Sep 4, 2014 at 11:37 PM | Permalink | Reply

    The argument that Rich Lowry’s use of bogus “constituted specific allegations of fraud against Dr. Mann” is quite interesting.

    National Review then went on to state that its real purpose in publishing this article was to call Dr. Mann’s research “bogus,” which is another distinction without a difference: “bogus” being a synonym for fraud.

    See Dictionary.com, (listing “fraudulent” as a synonym for “bogus”). available at: http://dictionary.reference.com/browse/bogus?s=t.

    According to Mann’s lawyers using synonyms for fraud is tantamount to an accusation of fraud. The fraud page at dictionary.com lists numerous possibilities: “deceit, trickery, sharp practice, or breach of confidence”; “any deception, trickery, or humbug”; “deliberate deception, trickery, or cheating intended to gain an advantage”; “something false or spurious”.

    These lawyers should put these synonyms into search engines alongside Mann’s name. It would undoubtedly help them locate the countless libelers who have used them.

    For instance, if you searched Google for “false or spurious Michael Mann,” the first hit would surely be someone using those words to libel the scientist and his work. It’s almost certain they would find “specific allegations of fraud against Mann.” Or, perhaps not.

    • Mooloo
      Posted Sep 5, 2014 at 10:56 PM | Permalink | Reply

      Do they really assert “bogus” means fraudulent? If so, Mike Mann might like to explain his meaning of the word “bogus” in the past.

      From: “Michael E. Mann”
      To: Kevin Trenberth
      Subject: Re: recent WSJ article

      4. The bogus talking point that co2 lagging the warming in the ice cores has been debunked
      countless times before,

      from: Michael Mann
      subject: Re: heads up
      to: “Thomas.R.Karl”

      and is being quite predictably seized upon by contrarians. especially problematic is the fact that it plays right into the bogus “global warming and stopped” mantra.

      • Don
        Posted Sep 5, 2014 at 11:10 PM | Permalink | Reply

        True. But I think the provided link is even more problematic for Mann. There he repeatedly lables the work of McIntyre and McKitrick both “false” and “spurious.”

        If we accept the argument from the brief that the use of synonyms is itself an accusation of fraud, then Mann has accused McIntyre and McKitrick of fraud.

        • rogerknights
          Posted Sep 7, 2014 at 4:24 PM | Permalink

          I think “bogus” only implies wrongness, not deliberate wrongness.

      • Skiphil
        Posted Sep 7, 2014 at 5:13 PM | Permalink | Reply

        Mooloo,

        I think Mann likely does mean “F-ulent” (i.e., conscious malfeasance) when he uses “bogus” loosely in this way. He has not restrained himself from using the F-word in various places, either…. but then Mann does not shrink from attributing all kinds of ill motives and conscious bad behavior to his critics.

        The difference is that “bogus” includes both unintentional and intentional mistakes, so it is certainly not a synonym with the F-word (which denotes conscious deception). Lowry can say “bogus” and one cannot reasonably infer that he is asserting that there was a conscious deception, unless he spells that out in another place.

        • Mooloo
          Posted Sep 7, 2014 at 7:23 PM | Permalink

          But if Mann takes that tack — arguing, for instance, that McIntyre’s work is fr**d — then he is close to admitting that it is an acceptable part of science to attribute such intent to work thought to be wron, merely because it is wrong.

          That’s not a path he would want to tread. It would only take one slip of the tongue in the witness box to make it seem like bogus, meaning fr**d, is a commonplace in scientific discussions.

          I doubt that, sufficiently goaded, he could restrain himself for long enough not to make a slip like that.

  14. MikeN
    Posted Sep 5, 2014 at 12:29 AM | Permalink | Reply

    The brief mentions the TAR as supporting Mann’s science. No mention of Mann’s involvement with TAR.

    The description of hide the decline contradicts itself on page 23.
    They start by saying the decline is explained by skeptics as a gulf between proxy values and actual temperatures. Then they explain the critics are wrong because
    “Further, the term “decline” does not refer to a decline in global temperatures, but rather a well-documented, and certainly unhidden, divergence in tree ring density proxies
    after 1960.

    Then on page 25,while summarizing various exonerations, they mention a WMO chart that was criticized in the report, and say it had ‘absolutely nothing to do with Mr Mann.’
    No mention is made that this is the same chart to which hide the decline was referring.

  15. kim
    Posted Sep 5, 2014 at 6:25 AM | Permalink | Reply

    Heh, as if East Anglia is in the clear. Looks pretty foggy over there from here.
    ==============

  16. Posted Sep 5, 2014 at 8:26 AM | Permalink | Reply

    Reblogged this on I Didn't Ask To Be a Blog.

  17. PhilH
    Posted Sep 5, 2014 at 8:55 AM | Permalink | Reply

    To my way of thinking, the provable fact that Mann, knowingly and purposely, tried to and did hide and exclude from his Hockey Stick paper the “censored” file that showed the Hockey Stick, handle and blade, did not actually exist, is more than sufficient to constitute fraud on his part. In fact, I believe it to be massive fraud on a worldwide scale. This is in no way different from a medical scientist publishing a paper, to worldwide fame and acclaim, that he had statistically demonstrated that he had developed a cure for cancer when in fact he had knowingly omitted clear statistical proof that he had not.

  18. Posted Sep 5, 2014 at 11:11 AM | Permalink | Reply

    My comment got caught up in moderation:

    “They assert several times that saying that Mann’s work is fraudulent is semantically equal to saying Mann is a f*r*a*u*d.

    I’m not sure that I buy that.”

  19. Will J. Richardson
    Posted Sep 5, 2014 at 11:23 AM | Permalink | Reply

    I find it maddening that it appears the District of Columbia Court of Appeals obviously does not require the appeal litigants to back up the factual assertions in their briefs with citations to the volume, page, and line of the trial court record, or an appendix, as required by Federal Rule of Appellate Procedure 28 (Fed. R. App. P., 28), and almost every State Appellate Rule.

    The Rule is intended to preclude biased statements of the “facts”. Rule 28 and the State Rule analogs have the salutary effect of precluding, or at least limiting, distortion of what “facts” the actual admitted evidence will support, and precludes the introduction of evidence not first presented to the trial court.

    • Craig Loehle
      Posted Sep 5, 2014 at 11:59 AM | Permalink | Reply

      These days people think facts=how they feel. So you can say there is an “epidemic” of – snip. Coatrack.

    • Will J. Richardson
      Posted Sep 5, 2014 at 2:16 PM | Permalink | Reply

      An example of how appellate courts use and apply Rule 28 and similar State rules:

      At the outset we note our dissatisfaction with the parties’ briefs. Federal Rule of Appellate Procedure 28(a)(7), incorporated for an appellee’s brief by FED. R.APP. P. 28(b), requires that a brief include a “statement of facts relevant to the issues submitted for review with appropriate references to the record.” . . . But Loves Park’s brief, over the course of twenty-two pages, provides precisely two citations for factual assertions, and those two cites, which are to deposition exhibits, do not specify page numbers in the record, as required by CIR. R. 28(c). Loves Park explains generally that it relies on its Local Rule 56.1 Statement of Facts and the district court’s memorandum opinion, but it does not tell us where in those documents we may find specific facts. This makes it impossible to verify factual assertions, many of which are incendiary and inappropriately argumentative. Because Loves Park violated Rule 28, we strike its “fact” section and all portions of the argument section that rely on unsupported facts. FED. R.APP. P. 28(a)(7); see also FED. R.APP. P. 28(e); CIR. R. 28(c); Pourghoraishi v. Flying J, Inc., 449 F.3d 751, 754 n. 1 (7th Cir.2006); Corley v. Rosewood Care Ctr., Inc. of Peoria, 388 F.3d 990, 1001 (7th Cir.2004) (where party fails to cite the record, “we will not root through the hundreds of documents and thousands of pages that make up the record here to make his case for him.”); L.S.F. Transp., Inc. v. N.L.R.B., 282 F.3d 972, 975 n. 1 (7th Cir.2002) (“We further caution counsel that violations of FED. R.APP. P. 28(a)(7) and Circuit Rule 28(c) in the future very well could lead to the brief being stricken, summary affirmance, together with other sanctions.”); United States v. Dunkel, 927 F.2d 955, 956 (7th Cir.1991) (“Judges are not like pigs, hunting for truffles buried in” the record.)

      Casna v. City of Loves Park, 574 F. 3d 420 (7th Cir. 2009)

      • seanbrady
        Posted Sep 5, 2014 at 5:52 PM | Permalink | Reply

        Great quote! The last line is rich in so many ways.

    • Posted Sep 5, 2014 at 5:50 PM | Permalink | Reply

      Will J. Richardson Posted Sep 5, 2014
      “Rule 28 and the State Rule analogs have the salutary effect of precluding, or at least limiting, distortion of what “facts” the actual admitted evidence will support, and precludes the introduction of evidence not first presented to the trial court.”

      How does this work when the trial court has not yet admitted evidence?

      • Will J. Richardson
        Posted Sep 6, 2014 at 11:39 AM | Permalink | Reply

        Yes Mr. Stokes. That is part of the problem I have pointed out in other threads here and at The Blackboard. As written, the DC Anti-SLAPP statute requires Mann to offer relevant admissible evidence which “demonstrates that the claim is likely to succeed on the merits” as to each element of each cause of action alleged. Wash. D.C. CODE § 16-5502 (b). The major error committed by the trial court was evaluating Mann’s claims by assuming the allegations in Mann’s complaint to be true. I will not iterate my reasoning again here.

        • Posted Sep 6, 2014 at 7:18 PM | Permalink

          Maybe the trial court should have required evidence to be presented. But they didn’t, so I don’t see how the appeal court can require litigants to reference it.

          If that was a major error of the trial court, I expect the appeal court will so rule.

  20. Jean S
    Posted Sep 5, 2014 at 12:11 PM | Permalink | Reply

    p 12:

    Defendants fail to mention that in the immediate wake of Dr. Hand’s statements, the Panel amended its report to make clear that “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.

    Plaintiff fails to mention the “little” push that was needed from his part.

    • Skiphil
      Posted Sep 5, 2014 at 9:12 PM | Permalink | Reply

      Plaintiff relies upon Stokesian (Nick) misdirection to ignore the actual statement of the President of the Royal Statistical Society. Dr. Hand did not assert the exaggeration was done “deliberately” or “intentionally” but he did assert that Mann’s work in the 1998 paper was inaccurate due to an “appropriate” statistical technique was not used. That is some form of ignorance or carelessness led Mann to use the wrong statistical technique. Plaintiff fails to report what was apparent even to sympathetic journalists at the time:

      ‘Hockey stick’ graph was exaggerated:
      The ‘hockey stick’ that became emblematic of the threat posed by climate change exaggerated the rise in temperature because it was created using ‘inappropriate’ methods, according to the head of the Royal Statistical Society.

      “The particular technique they used exaggerated the size of the blade at the end of the hockey stick. Had they used an appropriate technique the size of the blade of the hockey stick would have been smaller,” he said. “The change in temperature is not as great over the 20th century compared to the past as suggested by the Mann paper.”

      • Skiphil
        Posted Sep 5, 2014 at 10:19 PM | Permalink | Reply

        Last-minute changes in my comment above left me with sentences which needed revision. I should have said,

        “…Mann’s work in the 1998 paper was inaccurate because an “appropriate” statistical technique was not used. That is, some form of ignorance or carelessness (take your pick) led Mann to use the wrong statistical technique.”

  21. Tom Wiita
    Posted Sep 5, 2014 at 3:07 PM | Permalink | Reply

    I note that the new Mann brief still has the Oxburgh inquiry as one of the exonerations. I thought that might get abandoned as a defense by Mann’s team after Steyn’s amicus brief quoted Mann’s own book as saying, concerning the the Oxburgh committee, that:
    “our own work did not fall within the remit of the committee, and the hockey stick was not mentioned in the report.”

    • MikeN
      Posted Sep 5, 2014 at 3:54 PM | Permalink | Reply

      They have added in a bit about how inquiries of other scientists are implicitly an exoneration of Mann.

  22. pesadia
    Posted Sep 5, 2014 at 3:36 PM | Permalink | Reply

    “Dr.Mann respectfully requests that this Court proceed to the merits of Defendants’ appeal so that his
    lawsuit can move forward to trial”

    Having read all the comments about Dr Mann’s new memorandum,
    I cannot find a comment relating to the above quote.

    Can anybody explain the relevance or otherwise of this apparent concession on the part of Dr Mann?

    • MikeN
      Posted Sep 5, 2014 at 3:56 PM | Permalink | Reply

      It’s not a concession. The defendants are trying to have the case dropped, and Mann is arguing it not be dropped.

    • MikeN
      Posted Sep 5, 2014 at 4:06 PM | Permalink | Reply

      I see the concession is one line prior. “Dr Mann no longer opposes defendant’s arguments that this court has jurisdiction”-Conceding to the reality that the court has already taken the case. It’s not an issue that can be appealed.

    • pesadia
      Posted Sep 5, 2014 at 4:09 PM | Permalink | Reply

      MikeN

      Thanks, I see that now.

    • bobdenton
      Posted Sep 6, 2014 at 5:00 AM | Permalink | Reply

      It’s significant but not dispositive.

      The court has raised the issue of jurisdiction and will still want the issue argued as it can’t proceed unless it determines that it has jurisdiction. It simply means that no party will be arguing that it lacks jurisdiction, and the court will have to take points contra itself.

  23. per
    Posted Sep 5, 2014 at 3:41 PM | Permalink | Reply

    it seems to me that an important aspect of this anti-SLAPP appeal is the relevant legal standard for applying under anti-SLAPP (p.22 of the brief). If you use the same standard as for a summary judgement (viewing Mann’s case in its most favourable light), as the court did, i find it almost inescapable that you would have to come to the same conclusion as did the court. For example, this would mean that you take Mann’s pleadings about the various enquiries at face value, and you could only conclude he has been exonerated.
    However, if you substantively weigh whether the case is likely to succeed, and critically balance the arguments for and against the case, as is proposed, then an entirely different outcome is possible.

    of course, this is still only looking at the anti-SLAPP appeal ! long time to go.

    per

    • MikeN
      Posted Sep 6, 2014 at 12:21 AM | Permalink | Reply

      Yes, but if the standard is the same, then what is the point of the law?

    • bobdenton
      Posted Sep 6, 2014 at 5:43 AM | Permalink | Reply

      “If you use the same standard as for a summary judgement (viewing Mann’s case in its most favourable light), as the court did, i find it almost inescapable that you would have to come to the same conclusion as did the court.”

      Not necessarily. The constitutional protection is layered – Absolute Privilege and Qualified Privilege. The issue of actual malice only arises if the offending words attract Qualified Privilege only.

      The Appellants and Amici argue that, even if libelous, the words attract Absolute Privilege under the constitution. If the appeal court accepts that the Appellants are home and dry.

      However, though attracted by the fine aspirations of free speech, the courts seem ready to extend that privilege only to words which do not require the protection of privilege, because they’re not actionable anyway – opinion, jest, common and vulgar abuse – words, which anyone hearing them, would not understand to be a serious allegation of fact. Rhetorical hyperbole seems to be a grandiloquent way of saying “mere abuse”.

    • Will J. Richardson
      Posted Sep 6, 2014 at 11:56 AM | Permalink | Reply

      No, no, no. The Summary Judgment standard requires competent, substantial, and admissible evidence to be presented to the trial court. If the evidence, construed most favorably to the plaintiff, supports each element of the causes of action, the plaintiff has presented a prima facie case. The court then determines whether the defendant has created disputed issues of material fact by presenting competent, substantial, and admissible evidence to the court which conflicts with plaintiff’s evidence. If disputed issues of material fact exist, the case goes to trial.

      However, the DC Anti-SLAPP statute requires Mann to prove more to get to trial than the standard for Summary Judgment requires. The Anti-SLAPP statute requires Mann to offer evidence which “demonstrates that the claim is likely to succeed on the merits” as to each element of each cause of action alleged. Wash. D.C. CODE § 16-5502 (b).

      • Will J. Richardson
        Posted Sep 6, 2014 at 12:04 PM | Permalink | Reply

        Remember also, that the “Exonerating” reports which Mann relies on in his pleadings and brief are first of all inadmissible hearsay and cannot therefore be relied on to support his causes of action. Second, as Mr. McIntyre has so ably proved, the “Exonerating” reports are not material (evidence is said to be material if it has some logical connection to a fact of consequence to the outcome of a case), that is they do not in fact prove Mann was exonerated, even if the hearsay problem could be overcome.

        • Beta Blocker
          Posted Sep 6, 2014 at 3:08 PM | Permalink

          Will J Richardson, in comments made above, Jean S refers to this version of the Hockey Stick which appears in IPCC TAR as Figure 2-21:

          For purposes of argument, let’s presume that “the Hockey Stick” is — for all practical purposes, and as IPCC TAR Figure 2-21 seems to indicate — the product of a group of scientists pursuing a common body of scientific research; i.e., it is not the end product of the work of one particular scientist, Michael Mann, pursuing an independent body of research.

          Let’s also presume, for purposes of argument, that the Hockey Stick, as described in IPCC TAR Figure 2-21, is the quasi-official temperature record for the last 1000 years; that it is the 1000-year temperature record now in general use by the mainstream client science community; and that the climate science community views the Hockey Stick as being a documented scientific fact, as much as any documented scientific fact can be a “fact” as that term is commonly employed in normal everyday use. (See my two earlier posts up above which go into more detail.)

          If “the Hockey Stick” in general use today as the quasi-official 1000-year temperature record is actually the product of a group of scientists pursuing a common body of scientific research; i.e., it is not the end product of the work of just one particular scientist, Michael Mann, then is there not a case to be made for both defamation of Mann and for actual malice against Mann, in that he alone has been singled out by the defendants as one person uniquely accused of *f*r*a*u*d*u*l*e*n*t* behavior, separate and apart from the group of climate scientists who created the Hockey Stick in the form it is generally being employed today?

          Please see my detailed discussion of this line of thought as written in my earlier post dated Sep 6, 2014 at 11:02 AM .

        • Mooloo
          Posted Sep 6, 2014 at 3:39 PM | Permalink

          I follow your logic, but just because a person is on the consensus doesn’t mean they didn’t bodge their results.

          There’s plenty of dodgy mainstream science and Mann’s lawyers will struggle to prove that he’s mainstream therefore it follows he’s clean.

        • Beta Blocker
          Posted Sep 6, 2014 at 4:08 PM | Permalink

          Mooloo: Posted Sep 6, 2014 at 3:39 PM

          I follow your logic, but just because a person is on the consensus doesn’t mean they didn’t bodge their results. ….. There’s plenty of dodgy mainstream science and Mann’s lawyers will struggle to prove that he’s mainstream therefore it follows he’s clean.

          Absolutely. No question about it. Read my earlier posts above, and you will see that I say essentially the same thing, except that I offer more specific detail as to what strategy I think Mann and his lawyers are pursuing, and why.

          The further implication here is that the bodged temperature reconstruction work is a product of the climate science community as a whole, not simply Michael Mann. This has further implications for what might happen in a DC courtroom if a jury trial ensues.

        • Steve McIntyre
          Posted Sep 6, 2014 at 6:12 PM | Permalink

          I follow your logic, but just because a person is on the consensus doesn’t mean they didn’t bodge their results.

          Piltdown Man is an obvious example.

        • Will J. Richardson
          Posted Sep 6, 2014 at 5:19 PM | Permalink

          Okay Beta Blocker, I have read both comments. First, I am struck by how many times you use the terms “if” and “suppose” and “presume” when discussing what could happen, or could be proved. Mann has the burden to prove that the statements he alleges as defamatory are statements of fact, rather than opinion, and that they are factually false. It appears you think Mann could, or should, argue that because a consensus of climate scientists believe the “Hockey Stick” depicts “Truth”, calling the “Hockey Stick” fraudulent is a provably false statement of fact..

          At this point let me point out that your argument assumes that only climate scientists are qualified to testify that the “Hockey Stick” is “Truth”, because only they, by virtue of their education, training, and experience, can judge where the truth lies. Therefore, whether or not the “Hockey Stick” is factually true, or not fraudulent, necessary lies beyond the common understanding of the average layman; agreed? If so, the question of whether or not the “Hockey Stick” is not “fraudulent” must necessarily be proved by the testimony of experts, usually in the form of that scientist’s opinion. See Fed. R. Evid. 702. Now experts may testify that a fact is true, but if the “factual” matter at issue requires expert testimony to resolve, that means the “expert” is stating his opinion that a fact is true, and does not change a matter of opinion to a matter of fact.

          I suspect there are plenty of experts qualified based on their education, training, and experience in statistics, climate science, or both, who are not part of the consensus, willing to testify that the “Hockey Stick” is not the “Truth”, that it represents only one scientific opinion that happens to be wrong, and was produced by the use of inappropriate statistical manipulation. Remember also that there are certain provably true “facts” about how Mann derived his “Hockey Stick” that undermine his conclusions, i.e. the “Censored Directory”, non-centered PCA, post hoc proxy weighting by comparing proxies to the modern temperature record, and concealing that certain steps of the reconstruction failed R2 verification.

          As Mr. McIntyre has repeatedly pointed out. There is nothing in the law which requires anyone to accept a self serving declaration of scientific consensus as “Truth”. Nor, in this case, is it likely that Mann can prove that the “Hockey Stick” is “Truth” that the defendants must have believed. Whether the “Hockey Stick” is “fraudulent” remains ineluctably a matter of scientific opinion.

        • kim
          Posted Sep 6, 2014 at 11:08 PM | Permalink

          Where’s moshe when I want to hide inside a baseball and horselaugh?
          =================

        • Beta Blocker
          Posted Sep 7, 2014 at 11:53 AM | Permalink

          MY LATEST POST IS IN MODERATION: This is a copy.

          Will J Richardson> Sep 6, 2014 at 5:19 PM

          Okay Beta Blocker, I have read both comments. First, I am struck by how many times you use the terms “if” and “suppose” and “presume” when discussing what could happen, or could be proved. Mann has the burden to prove that the statements he alleges as defamatory are statements of fact, rather than opinion, and that they are factually false. It appears you think Mann could, or should, argue that because a consensus of climate scientists believe the “Hockey Stick” depicts “Truth”, calling the “Hockey Stick” *f*r*a*u*d*u*l*e*n*t *is a provably false statement of fact..

          Will, when I had finished read the plaintiff’s latest brief, I said to myself, “Why those silver tongue devils … it’s almost like they are elevating the purported truth of the Hockey Stick to something approaching the status of F = M*A. What games are the plaintiff’s playing with this kind of brash argument?”

          In pushing their blustery but baseless arguments, I think the plaintiffs have two further objectives in mind above and beyond attempting to convince a judge to see things their way.

          First, the plaintiffs are using the sheer audacity of their highly presumptuous arguments as a means of communicating to the defendants that a sympathetic judge is likely to take the plaintiff’s arguments seriously and will allow the lawsuit to proceed. The plaintiffs want to convince the defendants to acknowledge the gravity of the situation they face and to agree to an out of court settlement. Second, knowing that the brief is a publicly available document on the Internet, the plaintiffs want to use their audacious arguments as a means of playing to a sympathetic AGW alarmist community for support.

          Suppose a judge sympathetic to the plaintiffs rejects the defendant’s free speech arguments and allows the lawsuit to move forward. Suppose further that the plaintiffs adopt a series of explicitly stated arguments, as follows:

          (a) That the Hockey Stick is a body of scientific research created and owned by the climate science community as a whole, not by any one individual;
          (b) That the Hockey Stick is a provable scientific fact;
          (c) That the Hockey Stick has been demonstrated by appropriate peer-reviewed analytical methods to be a proven scientific fact, as much as any purported scientific fact can be proven to be a “fact”, as that term is commonly understood;
          (d) That the analytical methods used to develop the Hockey Stick have been by examined by independent investigative bodies and have been verified as being scientifically appropriate and professionally applied;
          (e) That any journalist who regularly includes climate science topics in their articles or in their opinion pieces cannot help but be aware that the Hockey Stick is universally accepted as scientific fact in the mainstream climate science community, and that independent investigations have verified that the analytical methods used to develop the Hockey Stick have been validated as being scientifically appropriate and professionally applied;
          (f) That any statements which allege “molestation and torture of data” in the creation of the Hockey Stick are defamatory in that they can be demonstrated to be false; …. and last but not least:
          (g) That within the context established by arguments (a) through (f), the actions of the defendants in singling out Michael Mann for accusations of “molestation and torture of data” — accusing him as a unique individual separate from the climate science community which created the Hockey Stick — is prima-facie evidence of actual malice against Micheal Mann on the defendant’s part.

          What if the judge accepts the plaintiff’s brief; what if the defendants still refuse to cave in; and what if the lawsuit then moves forward, eventually moving into a jury trial?

          It is my view that if the Mann lawsuit eventually goes to trial, free speech arguments alone will not be enough to persuade a DC jury to find for the defendants, a jury that is potentially sympathetic to the plaintiff’s arguments by virtue of where the trial will be held. In a DC courtroom, the substance of the arguments being made against the scientific validity of the Hockey Stick must necessarily play a prominent role in the trial, including the issue of the possible “molestation and torture of data” as that phrase would apply to its use by the defendants in making an alleged defamatory statement against the plaintiff.

          In a real sense, if a jury trial was held in a Washington DC courtroom, it would be the climate science community as a whole that was the plaintiff, given the impacts on public opinion and potentially the implications for public policy decision making if a jury found for the plaintiff. If the plaintiff wins, the truth and validity of whatever mainstream science is currently teaching is whatever publicly funded institutions and the courts declare that it is.

          IMHO, if the lawsuit goes to trial, the expert witnesses called by the defense will be asked if they themselves would choose to characterize the methods and techniques used by the climate science community in creating the Hockey Stick as including the “molestation and torture of data.” Given the nature and the extent of the problems found with the Hockey Stick over the last decade, how could those expert witnesses do anything else but say that they would?

          If this is what happens, the credibility of those expert witnesses, and the extent and quality of the evidence behind their opinions, will become a defacto issue for the jury to decide in determining if defamatory statements were actually made; and further, if those defamatory statements were made with actual malice, as defined in law.

          In order for the defense to convince a jury in a Washington DC courtroom that there is no basis for claiming actual malice on the part of the defendants, i.e., that the standard for actual malice on the part of the defendants has not been met, it will become necessary to examine both the scientific criticisms of the Hockey Stick and the professional credibility of those who are offering these criticisms.

          I think this is why Mark Steyn wants to have a showdown with Michael Mann in a courtroom. He is not doing battle with just Mann and his lawyers in pursuit of his right to free speech as a journalist, he is also doing battle with a climate science community he suspects is *d*e*f*r*a*u*d*i*n*g* the public with bad science and with bad public policy.

    • MJW
      Posted Sep 7, 2014 at 12:20 AM | Permalink | Reply

      per: If you use the same standard as for a summary judgement (viewing Mann’s case in its most favourable light), as the court did, i find it almost inescapable that you would have to come to the same conclusion as did the court.

      The Supreme Court held in Anderson v. Liberty Lobby, Inc. that to defeat a motion for summary judgement or a directed verdict in a public-figure defamation case, the plaintiff must present evidence which, when viewed most favorably, would provide clear and convincing evidence of actual malice:

      Just as the “convincing clarity” requirement is relevant in ruling on a motion for directed verdict, it is relevant in ruling on a motion for summary judgment. When determining if a genuine factual issue as to actual malice exists in a libel suit brought by a public figure, a trial judge must bear in mind the actual quantum and quality of proof necessary to support liability under New York Times. For example, there is no genuine issue if the evidence presented in the opposing affidavits is of insufficient caliber or quantity to allow a rational finder of fact to find actual malice by clear and convincing evidence.

      Mann didn’t present enough to support a finding of actual malice by a preponderance of the evidence.

      • Will J. Richardson
        Posted Sep 7, 2014 at 1:17 PM | Permalink | Reply

        Thank you MJW. The Anderson v. Liberty Lobby, Inc. standard is a Summary Judgment nuance of which I was unaware. I was assuming that at the Summary Judgment stage the trial court would only look for disputed issues of material fact, and leave the weight of the evidence to the jury.

    • Steve McIntyre
      Posted Sep 7, 2014 at 11:17 AM | Permalink | Reply

      per, as I understand it (and other commenters have made related comments), it is my understanding that the standard requires more than “conclusory” assertions, though I don’t pretend to know exactly how these criteria unfold in practice.

      For example, Mann’s assertion that he was exonerated by Oxburgh is arguably “conclusory” rather than evidence that he was exonerated by Oxburgh, whereas a direct quotation from the Oxburgh report saying that they had investigated and exonerated Mann would be more than “conclusory”.

      If I’ve understood the distinction correcrly, Mann will have a hard time finding relevant direct quotations for nearly all of his claimed inquiries.

  24. pauldd
    Posted Sep 5, 2014 at 3:47 PM | Permalink | Reply

    I can only conclude that Mann’s lawyers have dug themselves into a hole they don’t know how to get out of by relying on posts from sks without doing their own due diligence. A reasonably careful reader will observe that the portion of the report they cite concerns only the conduct of the Cru scientists and the integrity of their research. Mann’s lawyers do not evenaattempt to provide any analysis of why the statement is relevant to Mann.

    • thisisnotgoodtogo
      Posted Sep 5, 2014 at 6:32 PM | Permalink | Reply

      “I can only conclude that Mann’s lawyers have dug themselves into a hole they don’t know how to get out of by relying on posts from sks without doing their own due diligence.”

      Or relying on Mann who sloppily relies on sks posts.

      Here he is explaining physical evidences as per the sks cartoon.
      Note that “spring coming earlier” has an arrow going down…arrow down meaning decreasing – the opposite of what he wants to say. @2:40

      • thisisnotgoodtogo
        Posted Sep 5, 2014 at 7:13 PM | Permalink | Reply

        And at 29:25 you can see Mann give misleading information as to what Jones did. Mann says he just didn’t use the “bad” data. No mention of the amputation then grafting on without notification and continuing with the green Briffa series line and labeling it “Briffa”

      • thisisnotgoodtogo
        Posted Sep 5, 2014 at 7:39 PM | Permalink | Reply

        Lecture in 2013. Data amputated.

        It’s Michael Mann. Like in the AGU lectures.

        Jean S: Yes, in October 2013, 7 months after Steve exposed it, Mann is still using the AGU trick. Amazing.

        • thisisnotgoodtogo
          Posted Sep 6, 2014 at 1:04 PM | Permalink

          Maybe Mann is onto something with Gould;
          Mann gives short shrift to data, and gets a Jonesy Hide-The-Decline T-shirt of commensurate measure.

  25. Tom T
    Posted Sep 5, 2014 at 3:50 PM | Permalink | Reply

    Mann’s argument seems to be that since other people got the same result I’m correct and fraud isn’t possible. Well there were plenty of proofs of Fermat’s last theorem too all of them had the same correct answer a^x+b^x != c^x such that X does not equal 2. Yet for centuries all the claimed proofs were wrong.

  26. Craig Loehle
    Posted Sep 5, 2014 at 7:53 PM | Permalink | Reply

    Mann’s reply linked above: “Dr. Mann’s research has been reviewed repeatedly and
    replicated by other scientists, and that Dr. Mann has been repeatedly exonerated: no fraud: no misconduct; no molestation; no corruption.”
    Doubling down on the claims of repeated exoneration.
    “Replicated” is a curious term since prominent people such as von Storch have argued that the multiple reconstructions are incoherent with each other and a simple visual looks like spagetti, and my work certainly does not “replicate” Mann’s.
    If I say that a field such as vaccines causing autism or GMOs are deadly is a load of bull-hockey, that does not mean “misconduct” or academic fraud it merely means that the practitioners do crappy science and are probably deluded. His “if-then” clause is false: bad science that is utterly wrong happens all the time without “fraud” or “misconduct” or “corruption”. So accusing someone of doing work that is utterly wrong (fraudulent hockey stick) does not imply the type of misconduct the brief implies. But I am guessing that Mann is so sure he is right that this is the only implication he can imagine.

    • sue
      Posted Sep 5, 2014 at 10:47 PM | Permalink | Reply

      Relevant?

      OT I’m reminded of the email conversations of people talking about how arrogant Ray Bradley was and the fact that he was Mann’s mentor. I did not buy Mann’s book but wasn’t there a passage about Mann and his parents meeting with Ray over wine discussing Mann’s future in academics? Do students/parents actually do that? I found it odd. My son has graduated with a B.S. and daughter in her senior year, neither went or plan to further school at this time, but I have never been in contact with any of their professors. I always felt that they are adults and can handle all of this themselves which they have done… Of course we are always a phone call away for advice, if they want it ;)

      • sue
        Posted Sep 5, 2014 at 11:30 PM | Permalink | Reply

        Haven’t figured out to post links to twitter without them showing up as photos rather than just links, sorry. Tim’s reply: https://twitter.com/TimOsbornClim/status/507917106659483648

        Jean S: His answer indicates that he did not figure it out. Pity. Notice also the last, still unanswered questions about t-shirts. I’d think those could sell with high prices in eBay. Steyn might want to get one to wear in the court ;)

        • sue
          Posted Sep 5, 2014 at 11:32 PM | Permalink

          and of course it just did show as only a link…. *sigh*

  27. Steve McIntyre
    Posted Sep 5, 2014 at 8:50 PM | Permalink | Reply

    They seem to have hard time speaking accurately about anything. Consider their brief description of the Penn State inquiries:

    In February, 2010, as a result of communications it received from alumni. politicians, and others. that accused Dr. Mann of “manipulating data, destroying records and colluding to hamper the progress of scientific discourse,” Penn State launched an inquiry into whether Dr. Mann had committed research misconduct. Penn State subsequently released an Inquiry Report finding that “there exists no credible evidence that Dr. Mann had or has ever engaged in, or participated in, directly or indirectly, any actions with an intent to suppress or to falsify data.,,2R Moreover, given the severity of the charges, the inquiry committee decided to empanel an investigatory committee to further consider these allegations against Dr. Mann.

    The Penn State Inquiry Committee was launched on November 29, 2009 and had done all its (limited) work by the end of January. The report was published very early in February. It wasnt “launched” in February.

    Also their characterization of the Investigatory committee is blatantly untrue. The investigatory committee did NOT “further consider” the allegations. The inquiry committee dismissed nearly everything without taking any evidence from critics. That’s why Lindzen was amazed.

    • Posted Sep 6, 2014 at 1:34 AM | Permalink | Reply

      I remember Lindzen’s amazement well:

      Before the Investigatory Committee’s questioning began, Dr. Lindzen was given some general background information regarding the process of inquiry and investigation into allegations concerning Dr. Mann, with a focus on the particular allegation that is the subject of the current review by the Investigatory Committee. Dr. Lindzen then requested, and was provided with, a brief summary of the three allegations previously reviewed. When told that the first three allegations against Dr. Mann were dismissed at the inquiry stage of the RA-lO process, Dr. Lindzen’s response was: “It’s thoroughly amazing. I mean these are issues that he explicitly stated in the emails. I’m wondering what’s going on?”

      Quoted from the report itself by Alvin here in July 2010.

  28. Craig Loehle
    Posted Sep 5, 2014 at 9:36 PM | Permalink | Reply

    I think a valid defense by Steyn et al. is that many, including prominent, scientists have been horrified at some of the things Mann has done, from cherry picking to data mining with his software that churns out hockey sticks from red noise to turning Tiljander upside down. Not merely wrong but seemingly willfully wrong–that is Mann ignoring valid criticisms and proof of wrongness by even prominent statisticians. Willfully ignoring a proof that what one has done is wrong by experts in that field is a pretty big crime in science. Certainty of one’s infallibility does not encumber others with any obligations to believe likewise.

    • Harold
      Posted Sep 8, 2014 at 9:56 AM | Permalink | Reply

      Not just willfully wrong, but skillfully wrong.

  29. Skiphil
    Posted Sep 5, 2014 at 11:09 PM | Permalink | Reply

    OT: a comment at Bishop Hill relays the latest of Mann’s accusations against McIntyre and McKitrick. He does not shrink from his chosen life as a public controversialist, tweets from a twit:

    Just an observation, but about 4 hours ago Mikey Mann twitted something stupid:

    Michael E. Mann @MichaelEMann · 4 uur
    #StephenMcIntyre & #RossMckitrick used same sleight of hand as Cyril Burt (http://en.wikipedia.org/wiki/The_Mismeasure_of_Man …). Read “Hiding the Hockey Stick” in #HSCW.

    https://twitter.com/MichaelEMann

    Half an hour later, it was still on his mind, he gave a clarification for the ‘sleight of hand’ and gave page numbers (153-157?) and a link to his amazon.com bookpage. Now he has removed the ‘clarification’ twit, still kept the stoopid one though.

    Sep 5, 2014 at 11:47 PM | Unregistered Commenterharold

    • Skiphil
      Posted Sep 5, 2014 at 11:20 PM | Permalink | Reply

      Steyn et al. could make something of Mann’s ongoing public role as a willing controversialist and public ideologue. Mann does not function as some Ivory Tower scientist secluded from combat in the public arena.

      Mann references Gould’s “The Mismeasure of Man” for support of his understanding of Burt’s statistical “sleight of hand.”

      Whatever the status of Gould’s book may be with real scientists and statisticians, it is interesting to see the later categories of the Wikipedia article linked by Mann. Referring to vibrant critiques of Gould’s book, the later topics include: Miscalculation, Misrepresentation, Intellectual Error, and Propaganda among the topic headings in the Wikipedia article. Mann may have unwittingly stumbled upon a fellow traveler in the ideological distortions of science and statistics.

    • sue
      Posted Sep 6, 2014 at 12:13 AM | Permalink | Reply

      umm, isn’t it more like Mann is Burt and Steve is Gould?

      • Skiphil
        Posted Sep 6, 2014 at 1:26 AM | Permalink | Reply

        true if Gould is accurate, but if criticisms of Gould on this are roughly correct then a different analogy would be needed

        • Posted Sep 6, 2014 at 1:42 AM | Permalink

          Skip: Do you have link to the BH thread where this was reported?

        • Skiphil
          Posted Sep 6, 2014 at 1:55 AM | Permalink

          Richard, it was in “Unthreaded” at 11:47 pm Bishop Hill time

        • Posted Sep 6, 2014 at 2:30 AM | Permalink

          Thanks. This link will take you right there, until ten more posts bump this one onto page 2. (Not the greatest feature of Unthreaded as implemented by Squarespace for Bishop Hill. Permalinks are an important concept. But I digress.)

        • Skiphil
          Posted Sep 6, 2014 at 3:05 AM | Permalink

          thanks Richard! yes, permalinks should be a feature of every blog and website, imho

        • sue
          Posted Sep 6, 2014 at 11:02 AM | Permalink

          Skiphil, I meant in Mann’s mind he should be Burt and Steve should be Gould since Gould was found not to accurate (if I’m following this correctly) but Mann seems to have screwed up the comparison in his book.

          Also see this for a more complete statement of Mann with page numbers from his book:

  30. PJB
    Posted Sep 6, 2014 at 1:02 PM | Permalink | Reply

    Oh no! This site has contributed to yet another exoneration of Mann! It will only be a matter of time before Mann’s lawyers add Judith Curry’s appraisal to the litany.

    Posted Jul 1, 2010 at 3:59 PM | Permalink
    In terms of (internal) process and documentation, this report scores much higher than the UK reports. But the internal committee probably won’t satisfy people in the state of PA, we’ll see. In any event, in terms of formal research misconduct as defined by Penn State (which is a fairly common definition), I don’t think Mann is guilty, particularly during the time period he has been at Penn State (which is relatively short). Issues related to standards of ethics and professional behavior can be discussed, but I am not seeing evidence of any formal research misconduct. Back to a point i’ve made earlier, the real issue is the shenanigans that took place in the preparation and response to reviewers in the IPCC reports. IMO, the blame is on the system and people higher up in that food chain than Mann.

  31. mpaul
    Posted Sep 6, 2014 at 7:55 PM | Permalink | Reply

    Regarding the trick:

    Defendants omit the alternative (and correct) interpretation of this e-mail, which
    is that scientists often use the term “trick” to refer to a common statistical method to deal with
    data sets. This was a standard “trick” described openly in Nature and was hardly something that
    was secret or nefarious. Further, the term “decline” does not refer to a decline in global
    temperatures, but rather a well-documented, and certainly unhidden, divergence in tree ring
    density proxies after 1960.2

    I could accept the idea that the word “trick’ is used to mean a clever approach to deal with a problem *IF* Phil had used a word other than “hide”. Surely, one would choose a different word (other than hide) if “trick” had the meaning they suggested.

    “I’ve just completed Mike’s Nature trick of adding in the real temps to each series … to”

    …deal with the decline
    …reconcile the decline
    …adjust for the decline
    …offset the decline
    …work around the decline

    But the word “hide” is plain language. Any reasonable person would conclude that they were up to no good. And it doesn’t matter how many gentleman of letters and fine table manners try to explain it otherwise. A reasonable person can read that sentence and hold the opinion that the trick was an attempt to defr**d.

    Steve: analysis of hide-the-decline is consistently confused by the failure to distinguish between the IPCC AR3 technique and related emails (give fodder to the skeptics, dilute the message) and WMO1999 and the trick email,

    • MikeN
      Posted Sep 7, 2014 at 7:47 PM | Permalink | Reply

      mpaul, there is another plausible interpretation.

      I’ve used Mike’s Nature trick of adding in instrumental temperatures from 1980(for some unstated purpose), and from 1960 for Briffa’s to hide the decline.

  32. Skiphil
    Posted Sep 7, 2014 at 2:11 AM | Permalink | Reply

    Just a quick thought, would it be worthwhile for “someone” to develop an argument for Steyn and co. to consider, based upon the Ioannidis kind of analysis that many/most published research results are false??

    Perhaps someone here (with the relevant expertise) could write up an argument for Steyn’s lawyers putting criticisms of Mann in the context of the Ioannidis PLoS article: “Why Most Published Research Findings Are False”

    Not that Ioannidis was writing about Mann, but such findings about widespread problems in scientific research may lend credence to claims by Steyn et al. that they should not be required to automatically defer to any scientific “consensus” nor to pronouncements of govt. panels (especially when they don’t even do a proper job).

    Ioannidis is now a senior professor at Stanford with a variety of distinguished appointments:

    Stanford U. Professor John Ioannidis

  33. JD Ohio
    Posted Sep 8, 2014 at 8:47 AM | Permalink | Reply

    This memorandum is revealing in a number of contexts.

    First, Peter Fontaine, not John Williams (the lead attorney), wrote it. What this means to me is that Williams does not have a grasp of the finer points of the case and probably doesn’t have the time to get a grip on the facts. Fontaine is an environmental activist which explains why he would be more familiar with the intricacies of the facts surrounding Mann.

    Second, reading the brief starting on p. 12, it is apparent that Fontaine knows that the various investigations did not exonerate Mann. (I suspect that Williams when he filed suit, actually thought that the “investigations” cleared Mann.} What he does is start off the brief by switching to the topic of whether global warming was a hoax and then said that the CRU investigations and others found no global warming hoax. However, he carefully refrains from explicitly stating that the CRU investigations specifically exonerated Mann. On a basic level, it is a pathetic attempt to deceive the court, and I hope that CEI and National Review can effectively point out how deceptive this portion of the brief is and hope that they do not get lost in minor and confusing details. From a purely legal standpoint what Fontaine is doing is probably just barely permissible. However, in terms of the fundamental issues dealing with the intersection of research and defamation laws it is reprehensible.

    JD

    • Beta Blocker
      Posted Sep 8, 2014 at 4:31 PM | Permalink | Reply

      Re: JD Ohio (Sep 8 08:47),

      JD, while John B. Williams may not have written the brief, his signature is on it, and so by affixing his signature as lead attorney for the plaintiff to the brief, he signals to the court his approval of, and his buy-in for, everything that is said in the brief.

      When I read Page 12 of the brief, my suspicion that the plaintiff’s strategy involves assigning ownership of the Hockey Stick to the climate science community as a whole was confirmed, at least in my own mind anyway.

      As a committed environmental activist, Peter Fontaine may well believe that the Hockey Stick carries a level of scientific acceptance of the same order as carried by F=MA.

      This is certainly an audacious thing to believe, but the audacity of some of his arguments indicates that whatever the nature of his own beliefs, a series of arguments are being made based on the premise that the Hockey Stick has a pedigree which makes it as much of a “fact” as any purported scientific fact can possibly be, F=MA included.

      • JD Ohio
        Posted Sep 9, 2014 at 12:04 AM | Permalink | Reply

        BB “by affixing his signature as lead attorney for the plaintiff to the brief, he signals to the court his approval of, and his buy-in for, everything that is said in the brief.”

        Yes, I agree. I wasn’t excusing the poor brief, I was merely pointing out that Williams is having a hard time keeping up with and managing this case.

    • Will J. Richardson
      Posted Sep 8, 2014 at 7:03 PM | Permalink | Reply

      JD, you’re a lawyer. Do the Ohio appellate courts allow a “Statement of Fact” without citations to the Record made in the trial court?

      • JD Ohio
        Posted Sep 9, 2014 at 12:17 AM | Permalink | Reply

        WJR: Ohio App. R. 16(A)(6) states that an appellate brief is required to have: “A statement of facts relevant to the assignments of error presented for review,with appropriate references to the record in accordance with division (D) of this rule.”

        R. 16(A)(7)further states an appellate brief is required to have: “An argument containing the contentions of the appellant with respect to each
        assignment of error presented for review and the reasons in support of the contentions, with citations to the authorities, statutes, and parts of the record on which appellant relies.”

        So, yes citations to the record are required. You make a very good basic point about citations to the record, which should be required in DC, but may not be. It is really weird to think that a lawyer could get away with making factual statements on appeal without citations to the record. Citations to the record are so routine in Ohio, that I missed the very obvious and good point that you made.

        JD

    • pauldd
      Posted Sep 9, 2014 at 4:58 AM | Permalink | Reply

      As a lawyer I also was struck by the audacity of Mann’s brief concerning the UK investigations. This time the brief properly quotes relevant portions of the reports that exonerate only the CRU scientists. To that extent, the lawyer does not engage in outright deception.

      But clearly the brief implies that the conclusions about the CRU scientists are somehow relevant to Mann. To that extent Mann’s lawyers are deliberately misleading the court in a way that would anger most judges when exposed. The fact that the lawyers do not even attempt to explain the connection between the exoneration of the CRU scientists and Mann suggests to me the argument is submitted in bad faith. They now know that the UK reports are not relevant to Mann, but the are stuck because they represented they were in the court below.

      • JD Ohio
        Posted Sep 9, 2014 at 8:19 AM | Permalink | Reply

        pauldd ” To that extent Mann’s lawyers are deliberately misleading the court in a way that would anger most judges when exposed. The fact that the lawyers do not even attempt to explain the connection between the exoneration of the CRU scientists and Mann suggests to me the argument is submitted in bad faith.”

        I agree 100% with this statement and to me as a lawyer, it will be interesting to see if Mann’s lawyers get whacked for their deception. Although most courts would properly deal with this kind of deception, some courts are so bad that they wouldn’t.

        The fact that Mann’s lawyers are trying to deceive the court shows the importance to me of having a simple explanation (overview) for everything that the defense is arguing. If the case gets muddled in technical complications, Mann wins because he has a practical (not legal) presumption (definitely unearned) of credibility by virtue of his status as a professor at Penn State and because of the support of many in the academic establishment.

        JD

        • pauldd
          Posted Sep 9, 2014 at 2:44 PM | Permalink

          “The fact that Mann’s lawyers are trying to deceive the court shows the importance to me of having a simple explanation (overview) for everything that the defense is arguing. If the case gets muddled in technical complications, Mann wins because he has a practical (not legal) presumption (definitely unearned) of credibility by virtue of his status as a professor at Penn State and because of the support of many in the academic establishment.”

          I agree on the importance of lawyer being able to explain complex technical matters in a way that is comprehensible to Judges and lay jurors. In this case, I think that will be difficult, but not impossible.

          In this case, all the lawyers for the defendants have stellar legal credentials and make very strong legal points. Unfortunately, I am not convinced that they fully grasp the statistical issues in a way that will allow them to explain them with clarity. IMHO they miss a few key nuances in the statistical issues presented by the Hockey Stick graphs. This impression, however, might just arise from the lawyers’s decision not to get too bogged down in technical issues at this point and to rely more on big picture legal arguments, which they present well.

          I don’t claim any great expertise in these issues, but as I have followed this debate over the years and read many posts here and elsewhere, I think the problems with the hockey stick have gradually emerged more clearly in my mind and I have experienced many “ahha” moments. If this case goes forward, I hope the lawyer will do their homework. I am also hopeful that one of Steyn’s lawyers who does have a technical background will carry the ball.

  34. pauldd
    Posted Sep 9, 2014 at 5:48 AM | Permalink | Reply

    One further point. Even if the misleading statements of Mann’s lawyers slip by the appellate judges, Steyn will have the opportunity to expose the deception in pre-trial motions. Steyn’s lawyers are well aware of the deception because Steyn has already referenced them in his response to Mann’s request for admission.

    Steyn’s lawyers will be able to fully argue the relevance of the so-called exoneration s in a motion for summary judgment and in a motion in limne.

    To be relevant, evidence must be probative by making more probable an element of the plaintiff’s case and its probative value must outweigh the potential prejudicial effect of misleading the jury. I think that anyone who has read SM analysis will see that these will be difficult evidentiary hurdles for Mann’s lawyers to overcome.

    • Posted Sep 9, 2014 at 5:55 AM | Permalink | Reply

      In reading comments like this Dickens’ old dictum “the law is an ass” recedes and hope arises that common sense and decency can prevail, even in today’s DC courts.

      • pauldd
        Posted Sep 9, 2014 at 6:57 AM | Permalink | Reply

        In reading the initial briefs I was puzzled and somewhat disappointed that the defendants did not more clearly explain why the so – called exonerations are irrelevant. The briefs make the point, but not nearly as clearly as SM’s explanations.
        As I thought further about the issue, however, I am hopefully that this was a tactical decision. The defendants now have the opportunity to submit a rebuttal brief to which the plaintiff will not have the opportunity to respond in writing. If that is what the lawyers intend to do, I think it is a shrewd tactical decision.

        In any event I am confident that Steyn ‘ s lawyers will drive the points home in pre-trial pleading as described above.

      • Will J. Richardson
        Posted Sep 9, 2014 at 7:11 AM | Permalink | Reply

        Mr. Drake, the context for the quote “the law is an ass”, from Charles Dicken’s Oliver Twist is important. The full quote is:

        “It was all Mrs. Bumble. She would do it,” urged Mr. Bumble; first looking round to ascertain that his partner had left the room.

        “That is no excuse,” replied Mr. Brownlow. “You were present on the occasion of the destruction of these trinkets, and indeed are the more guilty of the two, in the eye of the law; for the law supposes that your wife acts under your direction.”

        “If the law supposes that,” said Mr. Bumble, squeezing his hat emphatically in both hands, “the law is a ass- a idiot. If that’s the eye of the law, the law is a bachelor; and the worst I wish the law is, that his eye may be opened by experience- by experience.”

      • sue
        Posted Sep 9, 2014 at 10:23 AM | Permalink | Reply

        Well apparently it’s ok to break the law now in the name of climate change:

        http://www.nytimes.com/2014/09/09/us/charges-dropped-against-climate-activists.html?_r=0

        FALL RIVER, Mass. — In May 2013, two environmental activists piloted a lobster boat close to the vast pile of coal at the Brayton Point Power Station, the hulking plant that overlooks this industrial inlet near the border between Massachusetts and Rhode Island.

        With the tiny boat, the two men — Jay O’Hara, 32, and Ken Ward, 57 — dropped anchor and for a day blocked a freighter with a 40,000-ton shipment of coal, and they were arrested and charged with conspiracy, disturbing the peace and other violations.

        The two were scheduled to be tried on Monday, and they planned to deploy an old legal argument called the necessity defense: They had no choice but to act because the consequences of climate change are so dire. But instead of a jury trial, the major charges were dropped or downgraded by the district attorney, who said, in effect, that he was sympathetic to the defendants’ point of view on climate change.

        Sam Sutter, the Bristol County district attorney who dropped the conspiracy charge and downgraded the others to civil infractions, strode out of the Fall River Justice Center clutching an article on climate change written by the environmentalist and author Bill McKibben, who was prepared to testify as an expert witness for the defense. Mr. Sutter told more than 100 climate activists who had gathered outside that he had reached his decision in part because of environmental concerns.

        “Climate change is one of the gravest crises our planet has ever faced,” Mr. Sutter said. “In my humble opinion, the political leadership on this issue has been sorely lacking.”

        How is Bill McKibbon considered an “expert witness” of science!!!

        • Skiphil
          Posted Sep 9, 2014 at 12:00 PM | Permalink

          Contemptible, a politicized prosecutor proving himself incapable of reading and applying the laws in an objective manner. Flagrant incompetence….

    • Posted Sep 9, 2014 at 7:25 AM | Permalink | Reply

      As a big fan of Mark Steyn I’ve come to have the pleasure of reading Steve M.’s blog as well the writings of many other fascinating scientists and other experts who are making such informative comments on the Mann v. Steyn case. – snip-

      That being said, I have worked in NY as a legal assistant for over 30 years and have a lot of experience in courts of every jurisdiction. What absolutely terrifies me about this case is the forum in which is will be decided, i.e. our totally debased court system. You must realize that all judges, regardless of which court they preside over, are nothing more than successful politicians; that is, they are either elected in very phony, rigged elections, or they are appointed by equally powerful and successful politicians. In other words, nobody gets to be a judge because they are especially brilliant or have such incredible jurisprudence. Just look at the first such jurist who got her hands on the Mann/ Steyn case, Ms. Combs Green (I think that’s her name). She had no idea what she was looking at when the papers came across her desk. She may have been told by someone higher up the food chain, that the goal was to screw Steyn at all costs. And of course, she did what she was told because they all know that the answer is to bleed and bankrupt Steyn by dragging the case out as long as possible. Meanwhile, it appears that Mann has an unlimited supply of money and resources courtesy of what Mark calls the “climate enforcers.”

      I have seen iron clad cases pretended to judges who were supposed to be at least theoretically able to do the right thing, only to have the judge rule against the party who was in the right. I have seen cases where the most brilliant lawyers presented magnificent, well researched briefs that were perfect in every respect for their clients who were obviously innocent, only to have some bastard of a judge find in favor of the other side. And it’s this way up and down the line– from the lowest town court all the way up to the top of the pyramid.

      snip – some overeditorializing

  35. Beta Blocker
    Posted Sep 9, 2014 at 8:20 AM | Permalink | Reply

    pauldd: Sep 9, 2014 at 6:57 AM

    …… Steyn’s lawyers will be able to fully argue the relevance of the so-called exoneration s in a motion for summary judgment and in a motion in limne.

    To be relevant, evidence must be probative by making more probable an element of the plaintiff’s case and its probative value must outweigh the potential prejudicial effect of misleading the jury. I think that anyone who has read SM analysis will see that these will be difficult evidentiary hurdles for Mann’s lawyers to overcome.

    By choosing to reference purported exonerations which do not mention Mann specifically by name, it seems to me that Mann’s lawyers have boxed themselves into a corner; and that the only way to get themselves out of that corner is to argue that the Hockey Stick is owned by the Hockey Team as a fundamental tool in pursuing climate science research, and that the Hockey Stick has a pedigree in the climate science community which elevates it to the status of provable fact.

    Therefore, investigations which exonerate the climate science community as a whole in matters related to the scientific validity of the Hockey Stick, and also in matters related to the analytical methods used by the climate science community to create the Hockey Stick, also exonerate Michael Mann by reasonable and justifiable inference.

    Pauldd, in your professional opinion, could such a strategy on the part of Mann’s lawyers be successful in persuading a sympathetic judge to keep the lawsuit on track towards a jury trial?

    • Pouncer
      Posted Sep 9, 2014 at 8:55 AM | Permalink | Reply

      If the Stick belongs to the Team as a whole, rather than to Mann individually, then only the attributation (by Steyn) of the stick (fr???ulent or otherwise) is incorrect, so is the identification of Mann as the RINGMASTER of the circus. At best Mann is a member of clown corps.

      Seems like a fork to me. Either Mann won a Nobel Prize, or shared a miniscule piece of the Prize with thousands of other people.

      • Beta Blocker
        Posted Sep 9, 2014 at 9:53 AM | Permalink | Reply

        Pouncer, in my view, Mann is acting as a proxy plaintiff for the climate science community in pushing this lawsuit.

        In their articles and their opinion pieces, had the defendants not assigned responsibility for the Hockey Stick to Mann as an individual, there would have been no opportunity for the Hockey Team to bring this lawsuit, using Mann as their proxy plaintiff.

        If Mann wins, the climate science community and the Hockey Team win big. But if he loses, it is a minor setback at most in their grand plan for keeping climate change and AGW continuously in the public eye.

        Win or lose in the courts, the Hockey Team is getting its money’s worth, in that they will have been successful in keeping their most vocal public critics occupied with the distraction of having to spend a lot of time and a lot of money in dealing with the lawsuit.

    • pauldd
      Posted Sep 9, 2014 at 10:04 AM | Permalink | Reply

      As a caveat in responding to your question, I have not undertaken a detailed analysis of the entire record and the briefs that would be necessary for me to express an opinion as to the likely results in a decision from the Court of Appeals.

      A major issue in the appeal is whether the trial court correctly determined that the Plaintiff met its burden under the SLAPP act to show that they are “likely to prevail” on the merits of their claim. It appears to me that the defendants’ arguments are largely addressed to abstract legal issue whether the types of statements made by the defendants can ever be actionable as libel as a matter of law given the broad protections of the 1st Amendment in scientific matter of great public interest involving a public figure.

      But defendants further make the argument that the trial court applied the wrong standard in addressing the motion to dismiss. For example, NRO states in its brief:

      “Contrary to the lower court’s analysis, the Anti-SLAPP Act does not require the court to “[v]iew[] the alleged facts in the light most favorable to the plaintiff” for purposes of assessing actual malice. J.A. 164. Quite the opposite: The entire purpose of the Anti-SLAPP Act is to make dismissal on the pleadings easier than under Rule 12. The Act thus requires some affirmative reason to think it “likely” that the defendant was not expressing his sincere views, but was instead deliberately lying or at least subjectively doubted the truth of his statements. A court cannot simply take the plaintiff’s word for it.”

      I recall somewhere in the briefs that one of the defendants argued that the trial court is required to conduct a factual inquiry that is similar to the type necessary to issue a preliminary injunction. This requires an actual evidentiary hearing. Thus, the precise question presented is: “how far the trial court is required to delve into the factual matters to make a finding that the plaintiff is likely to prevail?” “Did the trial court properly defer to the plaintiff’s factual allegations or was it required to conduct an independent inquiry.” These are issues that have not been definitely resolved by the Court of Appeals in prior litigation.

      The alleged exonerations are the plaintiff’s evidence on the issue of actual malice. They argue that the defendant’s must have doubted the truth of their statements because they should have been aware of the results of numerous investigations of Mann that exonerated him. This is why the exact nature of and conclusions set forth in the so-called exonerations are critical issues in this appeal.

      Now as to your question, I don’t think that the theory you propose strengthens the plaintiff’s position. Let me propose an analogy to illustrate why. Imagine that a defendant is sued because he stated that a drug researcher fraudulently failed to disclose material facts necessary to evaluate his conclusion that a studied drug is safe and effective. The fact that subsequent studies may have properly concluded that the drug was safe and effective has no relevance to issue of whether the original researcher engaged in fraud by failing to disclose material facts. IMHO this is analogous to the issues of fraud presented in the Mann libel case.

      Steve: what do you think of an analogy to Amerigo Vespucci? As I understand it, he never traveled to America and his writings were fraudulent. The fact that America existed didn’t make his claims less fraudulent.

      • pauldd
        Posted Sep 9, 2014 at 2:16 PM | Permalink | Reply

        The requirement of proving actual malice is an important protection in this case. If the case goes to trial, I think it will be difficult to find an expert who would be willing to testify that Mann engaged in scientific f*r*a*u*d. I suspect most experts would be reluctant to express such an opinion against a prominent scientist in the absent of unequivocal evidence of f*r*a*u*d. If any of what Mann has been done can be explained by honest mistake, differences of opinion or just plain incompetence, an expert likely be willing to give Mann the benefit of the doubt before inferring f*r*a*u*d.

        On the other hand, if an expert is posed the question whether an inference of f*r*a*u*d is a plausible interpretation of the evidence, I think many experts were be willing to answer that question in the affirmative. The requirement of proving actual malice allows the question to be framed in those terms.

        Steve: the way that you’ve characterized the issue seems more framed to Canadian libel law – i.e. plausible interpretation. My understanding of U.S. libel law based on a fair bit of reading is that it requires, in the case of a public figure, that the defendant not believe what he was saying and saying it anyway. Steyn clearly believed what he said, as he had a long record of critical commentary. IMO, this very difficult hurdle is why Mann is trying so hard to lever the inquiries into something that they aren’t.

        • bobdenton
          Posted Sep 9, 2014 at 4:45 PM | Permalink

          If this matter comes to trial (and the Defendants run a defence of justification – that the Plaintiff committed academic fraud – which, notably, none of the Appellants has yet suggested) the experts are likely to be expert witnesses of fact. It’s difficult to see any issue which would necessitate expert opinion. Agreement or disagreement with others’ scientific opinions, theories or conclusions can’t be evidence of fraud and, therefore, can’t be admissible.

          An expert couldn’t be asked if in his/her opinion the Plaintiff was guilty of fraud anymore than a policeman or forensic accountant could be asked that question in a criminal trial. Nor, of course, could experts give an opinion to the contrary. Nor could they be asked if someone else might think the Plaintiff guilty of fraud.

          Such conclusions are exclusively the province of the jury and would be addressed by counsel in argument.

        • pauldd
          Posted Sep 9, 2014 at 5:26 PM | Permalink

          In discussing legal issues I should be more precise in my language. I believe the correct standard under U.S law is whether the defendant made statements knowing they were false or with recklessly disregard as to their truth. Thus, here the plaintiff could prevail even if the defendants sincerely believed their statements, if their beliefs were held recklessly. You are correct that this is a higher standard than plausible interpretation, but it is a lower standard than mere belief.

        • MJW
          Posted Sep 9, 2014 at 7:40 PM | Permalink

          Thus, here the plaintiff could prevail even if the defendants sincerely believed their statements, if their beliefs were held recklessly.

          Basing actual malice on whether the defendant held a belief recklessly seems like a negligence standard, which the Supreme Court rejected. The court has repeatedly said that actual malice is a subjective standard. I think “reckless disregard for the truth” means, more or less, not caring whether the statements are true or not. As the court said in St. Amant v. Thompson:

          These cases are clear that reckless conduct is not measured by whether a reasonably prudent man would have published, or would have investigated before publishing. There must be sufficient evidence to permit the conclusion that the defendant in fact entertained serious doubts as to the truth of his publication. Publishing with such doubts shows reckless disregard for truth or falsity and demonstrates actual malice.

    • RickA
      Posted Sep 9, 2014 at 10:45 AM | Permalink | Reply

      The whole exoneration meme seems like a very small tangent point to me.

      I think what is really relevant is whether the defendant’s can show that what they said was the truth and/or whether what they said was opinion.

      I have read a lot about this – but am not really sure how the exoneration aspect of this plays into either issue (truth or opinion).

      I mean so what – say Mann was exonerated by one or more bodies (I know he wasn’t – but just say he was for purposes of argument).

      Does that assumed exoneration mean he didn’t torture and molest data?

      I still think that the statement about him torturing and molesting data is both true – and an opinion.

      Temperature data was grafted onto the proxy record – and that is per se torturing and molesting data – even without getting into PCA, the tricks and other statistical problems (the R2 issue, etc.) that could be raised to defend the defendant’s opinions.

      So the defense wins (in my opinion)!

      I bet the appeals court (or the trial court later) won’t care about the issue of the exoneration’s and people who are hoping the Judge (or appeals court) says anything about this issue will probably be very disappointed.

      We will see.

      Steve: You say: “Temperature data was grafted onto the proxy record”. I can’t think how many times I’ve taken issue with this assertion. It’s not an issue that any lawyer should bring forward. I am extremely impatient with people presenting this point as a gotcha. Maybe you read it at some other blog, but you didn’t read it here.

      • AndyL
        Posted Sep 9, 2014 at 10:53 AM | Permalink | Reply

        Mann is a public person, so he has to show “malice” (in the legal term) on the part of the defendents. This means that he has to show that they knew or should have known that their statements were inaccurate. He is attempting to use the multiple public exonerations as a way of showing this.

        • RickA
          Posted Sep 9, 2014 at 11:19 AM | Permalink

          AndyL:

          Yes – I get that Mann has the burden of proof on showing malice.

          If what Steyn (for example) said was true, or just opinion, then whether he said it with malice isn’t even an issue.

          Malice only comes up if the opinions in the opinion piece were a) not true (which they are) and b) not opinion (which they are).

          Maybe Mann is using the supposed exonerations to show that the opinions are not true – but I guess I need to read more – because the whole issue feels like a giant irrelevant tangent to me.

          I think that it is a no brainer for the defendants to show the truth of the matter that Mann tortured and molested data and that this statement was an opinion – but it will probably not be until summary judgment (way down the road probably) that we will see this issue confronted directly.

          Steve: you say “Malice only comes up if the opinions in the opinion piece were a) not true (which they are) and b) not opinion (which they are).” Except that, “actual malice” – please read legal definitions before discussing further – is the sort of thing that is relevant in anti-SLAPP motions and, in my opinion, can be litigated without requiring scientific evidence – something that makes things much easier for the defendants. Much as I’d like to see Mann discovered and cross-examined, if the defendants’ lawyers can get the case tossed on anti-SLAPP, they have an obligation to their clients to do so.

        • MJW
          Posted Sep 10, 2014 at 12:44 PM | Permalink

          This means that he has to show that they knew or should have known that their statements were inaccurate.

          The “should have known” part is not correct. “Should have known” is a negligence standard. The actual standard is that they knew their statements were false or had serious doubts that they were true. If I decide to attack an opponent by saying he’s an alcoholic, even though I have no reason to believe he is, I don’t usually know he isn’t an alcoholic — lots of people are, and he may be one of them. Nevertheless, my statement is made with actual malice, because I don’t subjective believe my accusation is true.

      • RickA
        Posted Sep 9, 2014 at 12:24 PM | Permalink | Reply

        Ok – forget about “grafted”. I was under the impression that both MBH98 and 99 had a graph with reconstructed temperature data (proxy data) and then tacked on actual temperature data (thermometer data), for some period of time, onto the end of the reconstruction data – in the same graph.

        Combining proxy data and actual temperature data in the same graph is what a lot of people (like myself) would say provides support for an opinion that Mann tortured and molested data.

        This opinion is wholly separate from Jones email about Mike’s nature trick or whether the disclosure of actual temperature data was clear in the captions or not.

        But I defer to your much greater depth of knowledge about these issues.

        My only point is that in addition to arguing that Mann is failing in his burden of proof (i.e. no actual malice shown) – the defendant’s can also argue as defenses to the charge of defamation that what they wrote was the truth and/or was an opinion.

        My point goes towards the defenses of truth and opinion.

        I think what was written is not defamation because it is both true and clearly protected opinion.

        I think they will be able to show this and therefore I think the defendants will win.

        Steve: on the single issue of “data torture”, I don’t believe that Mann has any chance. “data torture” is a relatively common term in statistics (see Wagenmakers for example) and I cannot imagine a more fitting example than Mann’s hockey stick calculations. In any event, the term is not defined in a way that it’s more than opinion. It’s foolish that the defendants have had to spend a penny on this part of the allegation. The regard the term “fraudulent” quite differently, but Mann’s pleadings are full of bluster and it’s very hard to pull out actual issues.

  36. RogueElement451
    Posted Sep 9, 2014 at 10:49 AM | Permalink | Reply

    First of all ,probably like a lot of the people commenting here , I am not a lawyer. My association with lawyers has been through 40 + years of dealing with them on various levels and cases,mostly in the fiduciary world.
    The law can be an ass ,that is true as well , but, and here is the big thing, in a court of law absolute proof and truth must be given,failing which allegations of perjury and retrial become immediately involved.
    A court of law may and will dissect evidence to the N th degree, where there is dispute or opinion ,a court of law will rely on fact and not conjecture. The minutiae of evidence will examined until it is totally comprehensible to the average person and understandable to the judge/s. Because of the importance of this particular case ,all evidence will be critical and open to dispute by both parties.

    snip -vereditorializing

  37. Beta Blocker
    Posted Sep 9, 2014 at 11:49 AM | Permalink | Reply

    Thanks pauldd. Your response raises an important question: which of the various incarnations of the Hockey Stick is the one which is the central focus of the Mann lawsuit?

    Is it Mann’s original version from the late 1990s? Is it the version illustrated in IPCC TAR Figure 2-21 which depicts the Hockey Stick as being the product of a group effort?

    Or is it some blend of current and previous versions of the Hockey Stick which has not been more precisely identified and/or defined by either party?

  38. pauldd
    Posted Sep 9, 2014 at 12:18 PM | Permalink | Reply

    “Thanks pauldd. Your response raises an important question: which of the various incarnations of the Hockey Stick is the one which is the central focus of the Mann lawsuit?”

    The alleged libelous statements made by the defendants don’t identify which of the “hockey stick” graphs they were referring to. Thus, I think they can assert that any or all of Mann’s hockey sticks graphs are at issue. They can choose which to make the central focus or they can raise issues involving them all.

    • Beta Blocker
      Posted Sep 9, 2014 at 12:53 PM | Permalink | Reply

      pauldd: Sep 9, 2014 at 12:18 PM

      Beta Blocker: “Thanks pauldd. Your response raises an important question: which of the various incarnations of the Hockey Stick is the one which is the central focus of the Mann lawsuit?”

      pauldd: The alleged libelous statements made by the defendants don’t identify which of the “hockey stick” graphs they were referring to. Thus, I think they can assert that any or all of Mann’s hockey stick graphs are at issue. They can choose which to make the central focus or they can raise issues involving them all.

      Pauldd, please note that my question did not say “Mann’s hockey sticks.” My question was carefully worded as referring to “the various incarnations of the Hockey Stick.” Under the scope of my question, IPCC TAR Figure 2-21 is one such incarnation of the Hockey Stick.

  39. pauldd
    Posted Sep 9, 2014 at 12:34 PM | Permalink | Reply

    “what do you think of an analogy to Amerigo Vespucci? As I understand it, he never traveled to America and his writings were fraudulent. The fact that America existed didn’t make his claims less fraudulent.”

    I agree that the analogy is on point. I think that Wegmann made much the same point: even if Mann’s hockey stick graphs turn out to be accurate depictions of the pre-instrument temperature record, that doesn’t mean that Mann statistical analysis was defensible.

    Of course, bad statistics doesn’t mean f*r*a*u*d. But as the defendants’ brief point out when a poorly justified graph becomes a “fraudulent” graph is a largely a matter of opinion. IMHO, Mann failed to make many disclosures arguably fall within a reasonable definition of f*r*a*u*d. Two examples would be Mann’s failure to disclose failed tests of statistical significance and his failure to disclose his use of irregular off-centered PCA These are material non-disclosures as surely his hockey stick would not have achieved such rapid acceptance if these had been properly disclosed.

  40. pauldd
    Posted Sep 9, 2014 at 1:44 PM | Permalink | Reply

    “Pauldd, please note that my question did not say “Mann’s hockey sticks.” My question was carefully worded as referring to “the various incarnations of the Hockey Stick.” Under the scope of my question, IPCC TAR Figure 2-21 is one such incarnation of the Hockey Stick.”

    I went back and took a look at the alleged libelous statements by CEI and Steyn. Mann is clearly the subject of both, but neither specifically identify which particular hockey stick graph they are referring to, except perhaps in the hyperlinks in the CEI post.

    So it would seem to me that any hockey stick graph that Mann was involved in creating is fair game, but not any others. Also, Mann is the only plaintiff. He does not have standing to assert claims involving the libel of other persons. Hope that helps.

    • Beta Blocker
      Posted Sep 9, 2014 at 4:54 PM | Permalink | Reply

      pauldd Sep 9, 2014 at 1:44 PM

      So it would seem to me that any hockey stick graph that Mann was involved in creating is fair game, but not any others. Also, Mann is the only plaintiff. He does not have standing to assert claims involving the libel of other persons. Hope that helps.

      I’ve reread Rand Simberg’s July 13th 2012 article, The Other Scandal In Unhappy Valley, which included the notable (a.k.a notorious) “torture and molestation of data” phraseology. (That’s what it included before the online article was trimmed, anyway.)

      In the first paragraph of the July 13th 2012 article, Simberg hyperlinks to his earlier May 17th 2012 article, The Death of the Hockey Stick, in which he discusses both Mann’s original temperature reconstruction work and subsequent efforts by other climate scientists to replicate Mann’s original work, Briffa’s work in particular.

      My interpretation of what Simberg has written is that when he speaks of “the hockey stick” in the June 13th and the May 17th 2012 articles, he is speaking of the climate science communities’ more generalized version of the stick, as it might be pictorially displayed in a graph similar to IPCC TAR Figure 2-21.

      Did Rand Simberg in his original unedited article intend that the phraseology “torture and molestation of data” should apply to the climate science communities’ more generalized version of the hockey stick, or did he intend that it should apply only to Mann’s original hockey stick work?

      Other interpretations of what version of the Hockey Stick Simberg is actually referring to are possible, but after rereading the two articles, I conclude that the climate science communities’ more generalized version of the hockey stick is the one which is the target of Simberg’s commentary.

    • Beta Blocker
      Posted Sep 10, 2014 at 11:50 AM | Permalink | Reply

      Pauldd, as a gaming exercise, let’s further examine the implications for what kind of strategy the plaintiffs might use if they were to base their arguments on the premise that the version of the Hockey Stick which is the target of Rand Simberg’s and Mark Steyn’s commentary meets the following criteria:

      – It is the most current version of the Hockey Stick commonly in use today.
      – It is the quasi-official Northern Hemisphere temperature record for the last 1000 years.
      – It is the work of multiple contributing climate scientists.
      – It is not the work of any single individual.
      – It has been examined by multiple investigative bodies.
      – It has been produced using valid and appropriate analytical methods.
      – It is, by any reasonable standard, a proven scientific fact.
      – It is universally regarded as proven fact by mainstream climate scientists.

      Within the contextual framework described above — and assuming the characteristics listed above are held to be evidentiary facts in a court of law — the plaintiffs could further assert the following arguments:

      1) Any responsible journalist who regularly covers climate science topics cannot help but be aware that the Hockey Stick is universally regarded as fact by mainstream climate scientists.

      2) Any responsible journalist who regularly covers climate science topics cannot help but be aware that the version of the Hockey Stick which is at the focus of the lawsuit was produced by multiple climate scientists; i.e., it is not the work of any single individual.

      3) Any responsible journalist who regularly covers climate science topics cannot help but know that the investigative bodies which examined the analytical methods and techniques used to produce the Hockey Stick view it as a shared body of scientific research which cannot be uniquely assigned to one person.

      4) Any responsible journalist who regularly covers climate science topics cannot help but know that the investigative bodies which have examined allegations concerning the research pedigree of the Hockey Stick have determined that the analytical methods and techniques used to produce it are appropriate for the task and have been properly applied.

      5) Any responsible journalist who regularly covers climate science topics cannot help but know that the climate science community as a whole has been completely exonerated of any allegations of unprofessional conduct in pursuing their temperature reconstruction research; and that there is no justification to suppose that any specifically-named scientist has pursued his temperature reconstruction research in a manner inconsistent with the peer-reviewed, verified, and validated approach used by the climate science community as a whole.

      If these characteristics and these assertions of fact are assigned to that particular version of the Hockey Stick which is the focus of contention in the lawsuit, it then follows that the allegations of molestation and torture of data made against Michael Mann in Rand Simberg’s and Mark Steyn’s 2012 articles are provable defamatory statements; and that by virtue of the fact Michael Mann has been singled out by the defendants as the direct target of their allegations — separate from the climate science community which is responsible for the Hockey Stick — there is prima-facie evidence not only of actual malice against Michael Mann on the part of the defendants; but further, there is also prima-facie evidence of reckless disregard for the truth on the part of the defendants in publishing their allegations.

      Suppose the plaintiffs were successful in making these arguments to a sympathetic judge and the lawsuit then continued forward through another series of legal wranglings, eventually arriving at a jury trial held in a Washington DC courtroom. In that scenario, would free speech arguments alone be enough to produce a verdict in favor of the defendants?

      • pauldd
        Posted Sep 10, 2014 at 2:37 PM | Permalink | Reply

        Beta Blocker: I honestly don’t understand your point, and I also dispute all the bullet points you make regarding how hockey stick graphs are viewed in the scientific community.

        First, it is Mann alone who is suing for libel. The statements of the defendants are libelous to Mann only if the statements are construed as comments on his personal work, not the work of the scientific community as a whole. This is a very basic point. For example, if someone were to write that the scientific foundations of the theory of biological evolution are a fraud*lent, I don’t see how any particular biological scientist could sue for libel contending (as he must) that he personally was being accused of fra*d. Unless there is a direct nexus between the allegation of fra*d and the work of a particular person, there is no action for libel. As a legal matter, I don’t think this point is debatable.

        Second, I disagree with your assessment of how temperature reconstructions are viewed by the scientific community as a whole. For example, it is simply not true that as you suggest could be argued that the hockey stick graphs are “by any reasonable standard, a proven scientific fact.” I don’t think Michael Mann himself would endorse that statement. I also disagree with just about every other bullet point you make. I suspect that you have not followed the debate carefully over the years because I think most climate scientists would acknowledge that the reconstructions in general are tentative attempts to draw conclusions from extremely messy data.

        In any event, the arguments that you are suggesting are not being made by Mann’s lawyers and for good reason.

        • Beta Blocker
          Posted Sep 11, 2014 at 6:00 PM | Permalink

          Re: Pauldd comments: Posted Sep 10, 2014 at 2:37 PM

          Pauldd, as background for what I said above, after eight years of following the debates concerning the scientific validity of the Hockey Stick, I have reached my own conclusion that the Hockey Stick is a contrived analysis product which is brilliantly and exquisitely crafted to reach conclusions which are indispensable in promoting AGW theory to agendized government agencies and to the general public at large.

          Having once been a QA auditor in a scientific organization, I can say that on the surface, the Hockey Stick has the look and feel of professionally done science. But only on the surface. Digging deeper into the Hockey Stick’s nooks and crannies, using the material Steve McIntyre and others have collected over the last eight years, reveals the kinds of data pedigree issues and the kinds of analytical methodology issues which, in their total aggregate, lead me to conclude that the Hockey Stick is most certainly a product of contrived research – contrived in the sense that both the foundational data and the analytical processes have been consciously cherry-picked and integrated in a way which guarantees that only one outcome is possible, a Hockey Stick shape having a long pronounced handle and a short but very strong blade at its tip.

          As a former QA auditor, there is no other conclusion I can reach when I look at both the weight of the evidence and the substance of the evidence that McIntyre and others have collected. As opinions go, this is an informed opinion on my part, but it is an opinion nevertheless. IMHO, it is only because the plaintiffs have been successful in finding sympathetic judges in the Washington DC venue where they filed Mann’s lawsuit that the lawsuit was not dismissed on the basis of anti-SLAPP arguments. This is an absurdity of considerable proportions – “SLAPP-stick comedy” as it were. But it is what it is.

          Pauldd: Beta Blocker,: I honestly don’t understand your point, and I also dispute all the bullet points you make regarding how hockey stick graphs are viewed in the scientific community.

          Please note my choice of words. I did not say “the scientific community.” I said ”the climate science community.” It is a narrower community which includes those mainstream climate scientists employed by some number of institutions within the climate science research establishment.

          The plaintiffs have made claims that Mann’s work on the Hockey Stick has been exonerated in a variety of investigative reports published by a variety of investigative bodies. And yet the majority of those reports do not mention Mann by name; instead, the reports concern investigations conducted against several important institutions within the climate science research establishment, a.k.a. the “climate science community” as I choose to label it.

          What are Mann’s lawyers attempting to accomplish when they cite a variety of investigative reports which do not mention Michael Mann by name? Are his lawyers acting unprofessionally in making these citations, or else are they consciously attempting to identify Mann’s work on the Hockey Stick as being part of a larger body of paleoclimate research which is owned by the climate science community as a whole? If it is the latter, then why have Mann’s lawyers not said so directly in unambiguous words in their latest brief?

          I don’t have a conclusive answer to that particular question myself, but I suspect the course of events will reveal just what the plaintiff’s reasoning actually is.

          Pauldd: First, it is Mann alone who is suing for libel. The statements of the defendants are libelous to Mann only if the statements are construed as comments on his personal work, not the work of the scientific community as a whole. This is a very basic point. For example, if someone were to write that the scientific foundations of the theory of biological evolution are a fraud*lent, I don’t see how any particular biological scientist could sue for libel contending (as he must) that he personally was being accused of fra*d. Unless there is a direct nexus between the allegation of fra*d and the work of a particular person, there is no action for libel. As a legal matter, I don’t think this point is debatable.

          The scenario outlined in my previous post concerns what might happen next if a sympathetic judge finds in favor of the plaintiffs and the lawsuit continues forward, eventually reaching a jury trial.

          The plaintiffs chose the Washington DC venue in order to find a sympathetic judge. So far, they have not been disappointed. If the purported exonerations do play a role in supporting a ruling which is favorable to the plaintiffs at this stage of the process, then the question must follow, what role will those purported exonerations play in the plaintiff’s courtroom strategy during a jury trial, when the fact that most of the reports don’t mention Michael Mann specifically by name will be presented?

          Pauldd: Second, I disagree with your assessment of how temperature reconstructions are viewed by the scientific community as a whole. For example, it is simply not true that as you suggest could be argued that the hockey stick graphs are “by any reasonable standard, a proven scientific fact.” I don’t think Michael Mann himself would endorse that statement. I also disagree with just about every other bullet point you make. I suspect that you have not followed the debate carefully over the years because I think most climate scientists would acknowledge that the reconstructions in general are tentative attempts to draw conclusions from extremely messy data.

          Once again, I did not make reference to “the scientific community as a whole”, I made reference to the “climate science community.” The climate science community, along with several other scientific communities under the general umbrella of the environmental sciences, does not have the same attitude towards what is and isn’t “scientific fact” as do other communities in the hard sciences. (I don’t regard climate science as one of the hard sciences. It hasn’t earned the distinction.)

          Every mainstream environmental scientist, and every mainstream climate scientist, that I’ve come into contact with regards the Hockey Stick in its generalized Long Shaft + Short Blade configuration as being a proven scientific fact, as much as any scientific fact can possibly be a fact. Sure, where the little temperature squiggles lie along the shaft may vary somewhat from one version to another, but there is no doubt in their minds that the Hockey Stick, in its general configuration, is a proven scientific fact, and would testify to that opinion in a court of law.

          Pauldd: In any event, the arguments that you are suggesting are not being made by Mann’s lawyers and for good reason.

          The plaintiffs haven’t made these arguments in this particular way at this stage of the proceedings.

          Maybe they are gambling that a sympathetic judge won’t actually read the investigative reports and discover that Michael Mann is not mentioned specifically by name in most of these reports. And, if the lawsuit is dismissed, both the defendants and Michael Mann’s incompetent and/ or unprofessional lawyers are off the hook.

          On the other hand, if the lawsuit eventually moves forward into a trial, the only argument I can see that would allow the plaintiffs to explain to a jury why it is that Michael Mann is not mentioned specifically by name in the majority of the investigative reports is to tie Mann’s work to a larger body of paleoclimate research work, one which is owned by the climate science community as a whole.

        • pauldd
          Posted Sep 12, 2014 at 4:48 AM | Permalink

          Beta Bicker: There is always a risk that judges and a jury sympathetic to Mann will misapply the law and misunderstand or ignore the facts.

          You propose that the plaintiffs have cited reports that do not exonerate Mann because they are attempting to make the case about climate science generally and the whole body proxy reconstructions specifically.

          As a legal theory, such a position is not remotely plausible. Therefore, the lawyers do make expressly propose such a legal theory. To the extent their brief creates the appearance that they are pursuing such a theory, you are observing the plaintiffs attempt to muddy the water and confuse the issues.

        • Beta Blocker
          Posted Sep 12, 2014 at 9:49 AM | Permalink

          pauldd: Posted Sep 12, 2014 at 4:48 AM

          Beta Bicker: There is always a risk that judges and a jury sympathetic to Mann will misapply the law and misunderstand or ignore the facts. ….. You propose that the plaintiffs have cited reports that do not exonerate Mann because they are attempting to make the case about climate science generally and the whole body proxy reconstructions specifically. ….. As a legal theory, such a position is not remotely plausible. Therefore, the lawyers do make expressly propose such a legal theory. To the extent their brief creates the appearance that they are pursuing such a theory, you are observing the plaintiffs attempt to muddy the water and confuse the issues.

          When I was in college in the 1970s, I was a fan of The Paper Chase.

          What kind of advice might Professor Kingsfield have given to Peter Fontaine concerning this latest brief in the Mann lawsuit?

          In any case, if the lawsuit is thrown out, a fun debate over what kinds of mind games Mann’s lawyers are playing will come to an end.

          Unless Mann files another one after the inevitable Steyn riposte.

      • JimBoMo
        Posted Sep 11, 2014 at 5:24 PM | Permalink | Reply

        The argument you make is not in the briefs; however, when I read the briefs I hear allusions to the same points that you make.

        IMO, you state a plausible argument that fits with the plaintiff’s apparent worldview. (See Yale Magazine article, “The most hated climate scientist in the US fights back: Michael Mann is taking a stand for science”. http://www.yalealumnimagazine.com/articles/3648. In the article that Mann chooses–with explicit intent–the word “denier” over “skeptic”. Mann believes his critics are ideologues and he is fighting back on the behalf of science. )

        IMO, I believe Plaintiff’s counsel intends to compel the defense to take on the weighty effort of disputing the credibility of large, respected institutions and to portray the challengers of Mann’s credibility and “exonerations” as either fringe (non)scientists or ideologically malicious and reckless hack journalists.

        I highly doubt that anyone on the plaintiff’s side believes either: a) Mann’s work is suspect; and b) Mann’s work will ever be scrutinized as part of this case.

        • Will J. Richardson
          Posted Sep 12, 2014 at 1:56 PM | Permalink

          JimBoMo, you state:

          IMO, I believe Plaintiff’s counsel intends to compel the defense to take on the weighty effort of disputing the credibility of large, respected institutions and to portray the challengers of Mann’s credibility and “exonerations” as either fringe (non)scientists or ideologically malicious and reckless hack journalists.

          Too bad for Mann that he has the burden of proving that the investigations done by those “large, respected institutions” were credible before he can introduce the results of those investigations in evidence. The alleged “exonerations” are hearsay, and therefore not admissible evidence. The only way for Mann to get the results of the “exonerations” admitted into evidence, is by the direct testimony of the persons who conducted the investigations and allegedly “exonerated” Mann. Those investigators would be subject to both discovery and cross-examination. Other than that small detail, what you propose might work.

        • Posted Sep 12, 2014 at 4:23 PM | Permalink

          Will J. Richardson (1:56 PM): Nice to hear about a small detail that might help.

  41. Craig Loehle
    Posted Sep 10, 2014 at 1:10 PM | Permalink | Reply

    One of the arguments Mann is making is that “other” reconstructions “validated” his. As noted, since they overlap so much in their data and authors, this is not independent validation. But in addition, once you calibrate your tree rings to temperature and create a reconstruction, the comparison to other series inevitably involves rescaling and axis-shifting of one or all of the series. As soon as you do that you are fudging how much they agree because these decisions are arbitrary. Why should a recon confined to Siberia be rescaled and shifted to compare to a northern hemisphere or global one? How does it make sense to do this to a series based mostly by PCA to bristlecones? To these guys the curves are not something real but just a story which is elastic as you want it to be.

  42. MikeN
    Posted Sep 12, 2014 at 8:37 AM | Permalink | Reply

    Another court decision has thrown out a law where the government is the arbiter of truth in political advertising.

    http://www.washingtontimes.com/news/2014/sep/11/federal-judge-rejects-ohio-law-requiring-truth-in-/

  43. JD Ohio
    Posted Sep 18, 2014 at 3:19 PM | Permalink | Reply

    Hopefully, it is OK for me to post what I previously posted on Judith Curry’s blog:

    I read the Watts Up summary of Steyn’s latest commentary on the lawsuit. Steyn mentioned something very significant, which I missed in quickly reading Mann’s latest brief. On page 21 of Mann’s brief, his lawyers drop their opposition to the jurisdiction of the Appeals Court. This is a huge change in strategy for Mann.

    Mann’s lawyers claim that they did so because the appellate court asked for briefs addressing the merits and that could possibly be their actual reason for doing so. On the other hand, Mann’s lawyers invested a substantial amount of time and money in claiming that there was no jurisdiction in the appellate court. (Undoubtedly, in substantial measure, because they believed that the trial judge bought into their claim). Something significant is going on here, and I can’t say exactly what.

    One potential explanation is that Williams has realized that the case is much more difficult than he thought and is bailing. Supporting that theory is the fact that his latest brief is not even posted on his website which is an indication that the firm is embarrassed by its work or doesn’t want to draw further attention to the case. There are other potential explanations for Williams conceding the appellate court’s jurisdiction (for instance, he could believe that the court will rule in his favor, and he merely wants to get an inevitable appeal on basic issues out of the way.)

    Also, I would note that the Appeals Court is not bound by Williams’ concession. If it decides that there is no jurisdiction, it can decline to hear the case on its own motion.

    JD

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