In some recent posts, I’ve observed that Carvin made a couple of astonishing gaffes in his oral argument. In today’s post, I’ll comment on the worst one. First, I’ll report the exchange without context. I presume that 99.99% of Climate Audit readers will spot the gaffe immediately. Read and react to Carvin’s words before reading my comments below the fold, where I’ll give my take on Carvin’s goof.
The first part of Carvin’s rebuttal was spent wiping the egg off his face for an earlier gaffe arising from Carvin’s total misunderstanding of the word “falsification” as it is used in codes of research misconduct, an incident that I’ll return to. In that cringeworthy exchange, the judges’ attention had been drawn to the NSF Inspector General report which listed the four (“synthesized”) issues supposedly addressed by the Penn State Inquiry Committee.
The second item on this list pertained to Mann’s direct or indirect role in the destruction of emails. This incident caught the eye of one of the judges, who asked Carvin a softball question about the email deletion incident (Audio 2 ~ minute 16):
Judge: if I may turn to Simberg’s article. There is a quotation from the Inspector General. He [Mann] was criticized for statistical technique, which was the basis for his “unscientific method”, but more importantly, then we have a quote, whether Mann deleted emails as requested by Phil Jones. In other words, some kind of cover up, an instance of a factually ascertainable event.
An invitation from the judges to talk about the destruction of emails. What an opportunity. Now here’s Carvin:
Carvin: That has nothing to do with the Hockey Stick. It has nothing to do with our accusation that the Hockey Stick was fraudulent or intellectually bogus. This was about a related campaign to intimidate people who disagreed with them.
There were two things going on. One was the misleading portrayal of earth’s temperature. The other thing was that a group of people at East Anglia started sending out emails attacking their critics. That’s what we’re talking in the second case. I don’t believe that it has anything to do with the allegedly defamatory statements of Mr Simberg. Certainly nothing to do with National Review or Steyn.
There are two disputes : one is whether the hockey stick is misleading, the other is whether they ostracize people who disagreed with them.
Carvin should have relished the opportunity to talk about the scheme to destroy emails by Jones, Mann and their “collaborators”. How could Carvin get such a central Climategate incident so wrong? The incident is relevant on two fronts: it is substantively important in showing how the IPCC sausage was made; and in conveying to the judges that things are not necessarily as they seem.
An alert enough lawyer might even have had a blowup print of the cartoon ready to show the judges, should they ask about the topic.
The emails that were involved in the deletion incident did NOT pertain to University of East Anglia academics abusing their critics, though there were plenty of those and Mann was front and center in the abuse. The emails that were the subject of the request were emails from Mann and especially Eugene Wahl to Keith Briffa of CRU, containing text and comments about the IPCC assessment of the Hockey Stick dispute for the Fourth Assessment Report.
In Mann’s brief, one of Mann’s central arguments purporting to diminish our criticism was an assertion in the IPCC Fourth Assessment Report that the flaws were “inconsequential” as follows:
Significantly, the IPCC weighed in definitively against Mcintyre and McKitrick claims in its Fourth Assessment Report (2007) noting that the impact of any supposed flaws identified by Mcintyre and McKitrick are inconsequential.
The documents that Jones, Mann and others wanted to (and succeeded in) destroying were documents in which Eugene Wahl, a close associate of Mann’s and a strong opponent of our criticism, inserted language into the final IPCC document that was much more favorable to Mann than the language in the document sent out to external reviewers. Nor had this change in language been requested by external reviewers.
Wahl’s changes to the IPCC language were sent to Keith Briffa of CRU. Briffa had been one of the hide-the-decline exchange with Mann and Jones seven years earlier, and had succeeded Mann as IPCC lead author responsible for the assessment of the Hockey Stick. During the final drafting stage in July 2006 – a stage governed by strict policies, Briffa sought Wahl’s help with his assessment of the Hockey Stick, even though Wahl had not been approved as an IPCC reviewer, let alone contributing author. The correspondence between Briffa and Wahl preserved in the Climategate dossier contains many hallmarks of furtiveness: both parties wanted to ensure that Wahl’s involvement never became public. Wahl and Briffa exchanged texts in which Wahl sent in his re-drafted language. Only the cover letters are preserved in the Climategate dossier; the draft documents containing Wahl’s changes to the report have never been produced.
In May 2008, despite their efforts to conceal Wahl’s involvement, because of some telltale language, it was surmised at Climate Audit that there must have been off-balance sheet contact between Briffa and the authors of Wahl and Ammann. (It was initially surmised that the off balance sheet comments must have come from Ammann, rather than Wahl, who had not even been registered with IPCC.) Climate Audit reader David Holland submitted an FOI request to the University of East Anglia for Briffa’s IPCC review correspondence, a request that was broad enough to include the surreptitious Wahl-Briffa correspondence.
Holland’s FOI request immediately caused Phil Jones to request destruction of all relevant documents. At the University of East Anglia, Jones, Briffa and Osborn, in defiance of FOI legislation, removed the emails from University servers, either to personal thumb drives or permanently. Jones contacted Mann, asking him to destroy his personal copies of documents and to get Wahl (a junior associate) to destroy his. Mann immediately forwarded Jones’ request to Wahl, who promptly destroyed his copy of the documents showing his changes to the IPCC assessment. After removing the documents from the University of East Anglia computers, Jones and Briffa appear to have falsely told University FOI officials that Briffa had not received off-balance sheet review comments (an email from Jones expressed his expectation that Briffa would say this to the FOI official.)
The incident became one of the major focal points in the early reaction to Climategate in the UK. A representative of the FOI Commissioner stated that it was a prima facie violation of the FOI Act. However, according to the Act, there was a six-month statute of limitations and this had now passed. The UK Parliamentary Committee wanted to know whether there had been a violation aside from the statute limitations and expected an answer to this question from the Muir Russell panel. However, the Muir Russell inquiry never even asked Jones about the destruction of emails. Their report included a fatuously untrue statement that no emails has been destroyed in response to an FOI request even though the Climategate dossier expressly documented the destruction and removal of emails. Fred Pearce of the Guardian, a longtime green reporter, could scarcely believe the audacity of the Muir Russell inaccuracy. The Parliamentary Committee recalled Muir Russell and Oxburgh for an explanation of this and other fiascos. (This second report of the Parliamentary Committee is not in the exhibits of the Mann v NR case.) Muir Russell told the Committee that he didn’t ask Jones about the destruction of emails, because that would have been asking him to confess to a crime. Since Muir Russell was supposed to be investigating misconduct, this was hardly a reassuring or satisfactory answer from the head of the investigation. Vice Chancellor Acton then announced that he had personally carried out the questioning of Jones and others that Muir Russell had failed to carry out and announced to the Committee that nothing had been deleted after all. No harm, no foul. The Parliamentary Committee was underwhelmed that they had nothing more concrete than Acton’s reassurance (which was at odds with the testimony of the emails), but they were worn out by the prevarications and ready to move on. Needless to say, Acton’s assurance to the Committee was completely untrue. Armed with Acton’s reassurance, I sent a new FOI request to the University for the documents showing Wahl’s changes to the IPCC report. The University said that it could not produce them because the documents had been destroyed after all.
The Penn State investigation was no better. The terms of reference of the Inquiry Committee had been to investigate whether Mann “directly or indirectly” had participated in the destruction of the emails subject to Jones’ request. The key emails were obviously the Wahl emails. This was not arcane knowledge, but front and center in Climate Audit coverage. However, Penn State did not even bother contacting Wahl. Subsequently, the NOAA OIG interviewed Wahl and obtained confirmation that Wahl had destroyed the documents, but had done so prior to his employment at NOAA, thus removing the incident from their jurisdiction. That Mann had participated in the request that led to Wahl’s destruction of documents was known beyond any dispute, but the Inquiry Committee nonetheless found that there was no evidence that Mann had participated even “indirectly” in the destruction of emails. I’m sure that someone like Frank Quattrone would have liked similar indulgence from the SEC.
Given the invitation from the judges to comment on Mann’s participation in Jones’ scheme to destroy evidence of Wahl’s changes to the IPCC assessment, there was lots that Carvin could and should have said. It is hard for me to imagine a worse or stupider answer than saying that it had “nothing to do with the Hockey Stick”. I doubt that even Mann or Williams would have had the cheek to say this.
CA readers will recognize that my commentary today is expressed in harsher terms than I’ve ever applied to climate scientists. It’s been difficult to restrain myself to even this amount of contumely.
Over the past year, Steyn has been criticized by many climate scientists for his supposed mishandling of legal representation. I don’t think that Steyn needs their advice. In my opinion, one of Steyn’s recent columns demonstrates a very accurate and sophisticated understanding of the relationship between a client and lawyer in a complicated case. He observes here that the client (or at least a client like Steyn) will always know the facts of the case better than the lawyer, but the lawyer knows the law. To do a good job, the client has to figure out how to convey the relevant backstory to the lawyer and the lawyer has to figure out to extract the relevant backstory from the client. Obviously National Review and Carvin didn’t manage this. I cannot imagine what Steyn would have said, if Carvin had done this representing him.
The defendants are lucky that there are so many weaknesses in Mann’s case that they can probably survive even a gaffe of these proportions, but there really is no excuse for such incompetence.