Guest post by Christopher Horner
Michael Mann has made what will, I expect, prove to be his greatest misjudgment yet. He has filed suit against the Competitive Enterprise Institute (with which I am affiliated), a CEI adjunct, National Review Online and Mark Steyn for libel.
The gist of his claim that negative characterizations of him and his activities are actionable is that he has been “exonerated”. No, he hasn’t.
The truth is he has never even been investigated, and has furiously warded off scrutiny of what he and his allies insisted was the missing “context” explaining away Climategate. This suit, if he continues with it, should put an end to that.
I and my co-counsel encountered this talking point after Mann intervened in litigation against the University of Virginia, seeking to block release of certain public records relating to his tenure there (our judge rightly waived that away as irrelevant to applying the law).
Like so much else in the “climate” realm this claim suffers badly under scrutiny. As I detail, in discussing publicly funded academia’s refusal to self-police, in my new book The Liberal War on Transparency: Confessions of a Freedom of Information “Criminal”.
Exoneration requires investigation; investigation requires pursuit aimed at discovering material facts. Two bodies are actually positioned to pursue and produce such facts. Mann’s employer since 2005 and where he worked when the Climategate leaks occurred, Penn State University, has done no such thing. Neither has the University of Virginia where he worked when first organizing against researchers who were undermining his claims.
Panels in the United Kingdom which Mann often cites, the Muir Russell and Oxburgh inquiries into UK taxpayer-funded operations at the University of East Anglia’s Climatic Research Unit (CRU), did not even purport to address U.S. citizen Mann, or validate his work. They respectively inquired into “aspects of the behaviour of the CRU scientists” [sic, emphasis in original], “allegations about CRU‘s impact on climate science” and “to understand the significance of the roles played by those involved from CRU” (see, “The Independent Climate Change E-mails Review”); and “to assess the integrity of the research published by the Climatic Research Unit in the light of various external assertions” (see, “Report of the International Panel set up by the University of East Anglia to examine the research of the Climatic Research Unit”).
Mann is not and was not with CRU, and was not party to or the subject of those investigations. His role in Muir Russell was limited to submitting comments, like 110 other individuals seeking to influence matters, despite, according to Muir Russell, authoring the second-greatest number of relevant emails. Mann’s name does not even appear in the Oxburgh report purportedly “exonerating” him.
It is worth noting that a UK FOI request helped uncover how the Oxburgh panel operated to cover over dissenting opinion in the ranks. See, e.g., “How Lord Oxburgh of Persil washed the Climategate team whiter than white (pt 2)”.
As regards the PSU fiasco, otherwise-sympathetic Clive Crook in The Atlantic styles the Muir Russell effort as being “equally probing” as Penn State’s, whose contortions he elegantly devastated, piquantly summarizing them as “difficult to parody”.
Further as I discuss in The Liberal War on Transparency, I have documents in which a principal in that effort indicates it was orchestrated from behind the scenes to avoid certain people being asked certain things, presumably because that would make the desired outcome impossible. See also Steve McIntyre, “New Information on the Penn State Inquiry Committee”.
Also, subsequent to Penn State’s report a U.S. Department of Commerce Inspector General managed to interview Eugene Wahl in the context of federal government involvement in Climategate, which PSU incredibly did not. (“Examination of issues related to internet posting of emails from Climatic Research Unit,”, p. 5). Wahl was someone to whom Mann did forward Phil Jones’s (UEA) request that Wahl hide or destroy records. About this, PSU was remarkably incurious, its unexplained decision to not interview Wahl further making a mockery of its supposed inquiry into whether Mann “engage[d] in, or participate[d] in, directly or indirectly, any actions with the intent to delete, conceal or otherwise destroy emails, information and/or data, related to [IPCC] AR4, as suggested by Phil Jones”.
We were not given the opportunity to depose Mann in the UVa case and so are unaware what if any knowledge of this he had at the time or since. We do know that PSU’s effort oddly did not meet the same uproar organized against other efforts to scrutinize the record, for example our various FOI requests. Unlike PSU’s proclaimed instigative tribunal, a simple FOIA request presents no ability to sanction Mann, but only threatens the transparency Mann agreed to as a condition of his employment at UVa. Yet announcement of what proved to be a risibly inept PSU effort, if one nominally with teeth, was greeted with no protest and, we are told, complete cooperation including turning over all requested records. That this behavior is inconsistent is something of an understatement.
The National Science Foundation purported to inquire, as well, but worked (almost entirely) from what PSU provided it. So much for that.
[Update Oct 25, by Chris Horner with thanks to Brian Angliss for inviting this elaboration: It equally failed to conduct a credibly rigorous examination of the evidence and/or key relevant factors. For example, the NSF OIG totally disregarded the findings of the NOAA OIG that Eugene Wahl had destroyed documents immediately upon receiving Mann’s email; Penn State apparently, and incredibly, never asked. Nor did NSF examine or report on whether, despite a conflict of interest, William Easterling had interfered with the Inquiry Committee even after supposedly “recusing” himself, interference which I understand stopped the Inquiry Committee from carrying out its obligation to interview critics, including Stephen McIntyre. Nor did the NSF OIG report directly address any of the contentious issues.]
The special silence, the dog not barking about supposed exoneration is the University of Virginia. Not once has UVA argued that it looked into Mann’s activities occurring on UVA’s watch. In fact, the University apparently was deliberate in its failure to conduct an inquiry. We have been reliably informed that UVA’s Board of Visitors suggested the administration get to the bottom of what transpired on Grounds, only to be rebuffed. The argument they received, we were told, is that the school could not guarantee that the findings would not be made public and as such it could not risk an investigation.
We also wished to depose the University on this matter but were denied the opportunity to confirm this. At our most recent hearing, the University stood and, oddly, denied any claim that the board stopped the administration from inquiring. No one has alleged this.
Regardless, as Mann now seeks to again use the courts to push this claim, the reality is plainly otherwise. Mann has never been credibly investigated. By definition he has therefore not been exonerated. In fact, he and his allies furiously oppose all possible independent inquiries — scrutiny of public, yet still-hidden records providing what they all swear is the missing context that would explain everything away as a big misinterpretation. Only release of UVa and other Climategate-related emails has the potential to actually exonerate the Hockey Team.
Read whatever you wish into their fiercely opposing release of precisely that which supposedly would clear their names. With this latest lawsuit, they may find they have no choice.
Christopher Horner is author of The Liberal War on Transparency: Confessions of a Freedom of Information “Criminal” (Threshold, October 2012).
From: <chornerlaw@aol.com>
To: <awatts@itworks.com>
Subject: Anthony, per this counsel from Steve, would you please update the Mann/investigated post?
Date: Thursday, October 25, 2012 10:12 AM
My thoughts for a response were below, but I am going to go with his “update or ignore”.
Would you mind updating, and it’s obviously fine to note this was updated to resolve a correct statement being read ambiguously, re-characterizing it so as to dismiss the analysis, or something? thx cch
—–Original Message—–
From: Steve McIntyre <smcintyre25@yahoo.ca>
To: chornerlaw <chornerlaw@aol.com>
Sent: Thu, Oct 25, 2012 1:01 pm
Subject: RE: I’ve got a speech I’ve only sketched out, for which I leave in hour and a half…can you look at/comment on this reply?
I’d be inclined to make a slight update to your post, but otherwise not engage. Perhaps something like this:
The National Science Foundation purported to inquire, as well, but worked almost entirely from what PSU provided it. [Update Oct 25, with thanks to Brian Angliss for inviting this elaboration: It equally failed to conduct a credibly rigorous examination of the evidence and/or key relevant factors. For example, the NSF OIG totally disregarded the findings of the NOAA OIG that Eugene Wahl had destroyed documents immediately upon receiving Mann’s email; Penn State apparently, and incredibly, never asked. Nor did NSF examine or report on whether, despite a conflict of interest, William Easterling had interfered with the Inquiry Committee even after supposedly “recusing” himself, interference which I understand stopped the Inquiry Committee from carrying out its obligation to interview critics, including Stephen McIntyre. Nor did the NSF OIG report directly address any of the contentious issues.] So much for that.
From: chornerlaw@aol.com [mailto:chornerlaw@aol.com]
Sent: October-25-12 12:26 PM
To: smcintyre25@yahoo.ca
Subject: I’ve got a speech I’ve only sketched out, for which I leave in hour and a half…can you look at/comment on this reply?
And add to/improve as you see appropriate, thx:
A Brian Angliss at ScholarsandRogues takes umbrage at my guest post on WUWT detailing the spectacularly overblown nature of claims that Michael Mann has been exonerated, which requires being properly investigated. Specifically, he objects to this statement:
The National Science Foundation purported to inquire, as well, but worked from what PSU provided it. So much for that.
This statement is true, as the NSF document we both reference notes. I suppose NSF “purporting to inquire” is opinion, dependent upon one’s assessment of the effort’s scope and rigor. That they worked from what PSU provided them is disputed by no one. Angliss says “This is demonstrably false”.
To support this Angliss restates what I wrote, by implication, to charge at a strawman and declare it false: I apparently deny “that the OIG’s investigation went beyond the information provided to the OIG by Penn State.” I do not and did not deny it, but linked to the document saying as much.
For example, information I possess indicates that PSU panelists were instructed from behind the scenes to not interview Steve McIntyre, who was in fact interviewed by NSF (although neither report draws attention to its respective ignorance of or consultation McIntyre).
Angliss slays this allegation never made with aplomb. Allow me to rephrase for him and see which turn his umbrage takes: NSF began with (“worked from”) what PSU provided them. It was facially deficient, as Clive Crook among others noted to devastating effect. For example, on its face it was incredible that PSU did not interview McIntyre. Which NSF apparently agreed. They should have written about that interview. It would help support concerns about its rigorousness.
Regardless, mischaracterizing what I wrote to then say that mischaracterization is knowingly false or spreading false rumors is advocacy, not analysis. In fact, in his effort Angliss becomes what he deplores.
Get the beer and popcorn ready, this one is going to be an interesting one to watch.
The Popcorn Song
Dr. Mann will soon loath discovery requests and depositions.
PSU’s proclaimed instigative tribunal….
Hmm. : > )
Is there a defense fund?
“The gist of his claim that negative characterizations of him and his activities are actionable is that he has been “exonerated”.”
No. His claim has nothing to do with any “exoneration”. If someone calls him a paedophile, they are libelling him. End of.
Tell me,Chris,what’s not defamatory and injurious about Simberg’s and Steyn’s words?
Tell me how publishing “Mann could be described as the Jerry Sandusky of climate science” is not intended to defame?
Tell me how the fact that Mann has “not been fully investigated” relevant to the findings of investigations that have exonerated him? Mann is not claiming to have been exonerated by hypothetical investigations that have not been made,has he?
How is your personal opinion of the credibility of any investigations that did directly or indirectly concern Mann relevant in court to the matters in the complaint?
@JC
No. His claim has nothing to do with any “exoneration”. If someone calls him a paedophile, they are libelling him. End of.
If purposely pedaling pompous propaganda to adults and children alike is not pedophilia, what is?
If it is, how is the Mann different from Big Bird?
Nick says:
October 23, 2012 at 9:05 pm
Easy. You first have to show Mann’s reputation rises above that of Jerry Sandusky. (Jerry’s name will forever give a negative impression, as will Mann’s–and Mann may wish his reputation RISES to that of Jerry’s when his global impact is calculated.)
Same with your other points, Nick.
Clive Cook’s claim the “Penn States contortions are….difficult to parody” has been refutted. Please visit the Canada Free Press archives, or my website for….
“Hockey Stickery Doc”….and….”Penn Panel Limbos Under the Hockey Stick”
A refreshing look at of those whitewash players and events….and not surprising….
the post-Sandusky Penn has fewer contortions.
Shades of Piltdown Mann
JC says:
October 23, 2012 at 8:41 pm
No. His claim has nothing to do with any “exoneration”. If someone calls him a paedophile, they are libelling him. End of.
Nick says:
October 23, 2012 at 9:05 pm
Tell me how publishing “Mann could be described as the Jerry Sandusky of climate science” is not intended to defame?
To JC and Nick. In the US speaking the truth can never be considered libel, defamatory or injurious.
Since Mann went PSU and was investgated just as sandusty was(and cleared) its going to be a pretty huge huddle for them too show libel or anything else. They will have to pretty much prove that global warming is real in court. Then prove that Mann’s research is legit. Its pretty much impossible for them to do either in any reasonable court. The fact that Mann’s work has already had a great amount of doubt case on it through a number of sources. On top of that should the lawyers get really indepth with the PSU review this could in fact cause huge problems at PSU. If its shown that not only to PSU cover up for sandusty but used similar processes when dealing with Mann and pattern of misconduct. This pattern of misconduct would effect not only Mann and PSU but people suing over sandusty and possibly many other cases.
This trial may well bring PSU to court in a host of ways possibly even taking the college down. Cases like this can have such a wide effect and depending on how the lawyers in this case work with others such as the people suing sandusty you may well see the end of PSU.
Wonderful Christopher. Great to see people standing up for integrity.
JC says: October 23, 2012 at 8:41 pm
“The gist of his claim that negative characterizations of him and his activities are actionable is that he has been “exonerated”.”
No. His claim has nothing to do with any “exoneration”. If someone calls him a paedophile, they are libelling him. End of.
No, As I recall, he was compared to fellow Penn Stater Jerry Sandusky, I’m sure Dr Mann compares favorably to Jerry Sandusky, so no case.
Mann may be safe yet. If a very narrow view is taken of his dispute, you may not be able to bring up anything other than he created something with which you/we disagree. The NIWA vs Coalition in New Zealand should be reviewed carefully. That case strikes me as proving that the court does not need to address the essence of the case but only the narrowest of points.
If Mann is to be guilty of fraud, misrepresentation or other types of malfeance wrt the Hockey Stick, I suggest he has to be found to have:
1. used an inadequate data selection, culling and modification technique that is,
2. generally recognized as not just preferred but required,
3. known about this technique and been able to use it,
4. chose not to use it because
5. he knew that the results of using it would give a result different from and antagonistic to
6. a conclusion he decided should be obtained because
7. that conclusion would support an agenda that
8. he had irrespective of the results of the temperature profile now known as the Hockey Stick.
The only point at which misrepresentation or its worse variety becomes real is one at which Mann, with knowledge aforethought brings forth a profile to support a conclusion that he knows is not tenable. As long as he had a reasonable, even if subjective, choice in techniques, even with a concurrent agenda or other set of beliefs wrt CAGW, then he had the legitimate, scientific right to conduct his analysis the way he did. This does not make the Hockety Stick “correct”, but, without an understanding that he acted contrary to what he knew to be a “better” way, Mann would be guilty of only a bad scientific process, not criminality.
The Hockey Stick was accepted by the IPCC which was, at the time at least, considered to be a highly reputable organization. What he created was not only accepted by the IPCC but by many other leading scientists as well, Phil Jones included. I cannot see any way that he could be said to be a rogue scientist; again, guilty of bad scientific technique, or even having an ego that refuses to recognize that his work has been “superceded” by the work of others, but not of illegitimately or fraudulently perverting data for conscious, private gain.
A fiercely held opinion of a subjectively determined, small-scale study of a large-scale phenomenon is not illegal nor reprehensible – and certainly not unprecedented (or even abnormal). The Climategate e-mails suggest Mann is, at least within e-mail trains, not one tolerant of others or prone to generosity of spirit. Neither are our Prime Ministers and Presidents, however. But to say that someone is a “bad” guy, in that you dislike his behavioural characteristics, is not the same as saying he did a bad thing, and certainly not that he was aware of doing a bad thing before he did it.
The example of Oscar Wilde has been raised, in that OW brought about his own destruction by bringing his detractors to court. The difference is that OW was “guilty” of what he was accused of, and it was easy to prove. What Mann is being accused of was conscious trickery; unless you already have e-mails in which he says, like some mafia wiseguy, that he bumped off the data on purpose to push an anti-carbon philosophy to net him money, fame or girlfriends, you may have trouble making that clear.
Everyone who ever listened to his mother gives the benefit of the doubt to the powerholders if the choice is avaliable. Only a self-destructive contrarian would do otherwise. All Mann has to do is show that, if options were available, he went with the one that the “consensus” would have supported.
Showing that Mann is “lame” is going to be easier than to show that he is accountable for a wrong against the State.
Doug,
While it may be difficult to prove the Dr Mann is a fraud, this is not what the lawsuit is about. Dr. Mann is the plaintiff, it is his burden to prove that he has been (with malice, as he is a public figure) defamed and suffered damage. If he cannot show that the defendants knew his research was correct, or that the various investigations were thorough and did exonerate him, he should not prevail at trial.
As for JC, may I suggest a remedial course in reading for comprehension? The analogy as originally drawn was that Penn State’s investigation of Mann was like their investigation of Sandusky. Since the same guy ran both, this was an obvious comparison. Mr Steyn’s column declines to put the investigations in the same strata of malfeasance (one coverup is of a much, much, much worse offence) but argues that if you are willing to cover for a pedophile to “protect” the institution, you’re probably willing to ignore a few deleted emails.
JC says:
October 23, 2012 at 8:41 pm
“If someone calls him a paedophile, they are libelling him. End of.”
But, nobody did that. The exact quote described Mann as “the Jerry Sandusky of climate science, except that instead of molesting children, he has molested and tortured data in the service of politicized science. Where do you read in that any accusation whatsoever that Mann is a pedophile?
Nick says:
October 23, 2012 at 9:05 pm
“Mann is not claiming to have been exonerated by hypothetical investigations that have not been made,has he?”
Actually, yes, that is precisely what he is doing. Now, maybe you understand our being nonplussed at such a brazen display of chutzpah.
Mark Steyn never compared Mann to Sandusky; he quoted another writer, Rand Simberg, who did. I’m pretty sure one can’t be convicted of libel for quoting someone else.
Regarding the New Zealand case, US law does not consider foreign cases to be precedent.
Doug Proctor says:
October 23, 2012 at 10:00 pm
“If Mann is to be guilty of fraud, misrepresentation or other types of malfeance wrt the Hockey Stick…”
That is not the question in this court case. The question is quite simply whether people can be allowed to express their disagreement with Dr. Mann in print, even in terms which some may consider strident. The Constitution of the United States of America is very clear on the matter: yes, they can.
As they say in Yorkshire – He’s buggered.
Note: this may be a duplicate post, My last went away when I hit Post Comment.
Doug,
While proving that Dr. Mann is a fraud might be difficult, it is not required. As the plaintiff, Dr. Mann must prove that (with malice as he is a public figure) the defendants knew that his research was correct and correctly presented, and that they knew the investigations were thorough and exonerated him. Failing that, his suit should fail. (As most here will admit, the defendants have good reason to believe that the hockey stick is not an accurate representation of either the temperature record or the proxy data ensemble Mann abused in deriving it. Also, of the various investigations, none appear to have been thorough and few considered Dr. Mann as a principle. (Perhaps just the one?)
Perhaps JC should take a remedial course in reading for comprehension. No one in these articles accuses Dr. Mann of a sex crime. The original Sandusky/Mann analogy is an obvious one, given that the same guy ran both Penn State investigations. Mr Steyn declined to put the two in the same strata of malfeasance. (Sandusky was accused of something much.much, much worse.) He argues that one who is willing to cover for a pedophile to “protect” the institution is likely willing to ignore a few deleted emails.
I think you’re right that that could happen. But Mann is running a big risk in betting that it will.
Doug,
You say it will be necessary for Chris Horner et al to prove that Mann used his unprecedented and untested techniques for the purpose of producing controversial conclusions (eg elimination of MWP). That shouldn’t be too difficult.
But then you contend the necessity to also prove that Mann had an agenda “irrespective” of his Hockey Stick results. Why must that be a component of the defence?
What’s interesting about the complaint is that the only facts it alleges to establish “actual malice” are these supposed exonerations, mostly from government bodies. Yet the articles attached to the complaint show that the authors of these articles don’t agree with those “exonerations,” and said why, with links…
So Mann’s position is – you have to believe the government. If you disbelieve them, and believe other people instead, why, then, you’re not telling the truth or you don’t care about the truth.
A sad place indeed for an American liberal to be.
That’s pretty arch,Bart.
Mann has been exonerated of wrongdoings by properly constituted investigations that handed down formal findings. Whether you,I or Chris Horner thinks they were inadequate,insufficient,failed to carry out all the requirements of an investigation, or are wrong or right is irrelevant. The inquiries had status and did not find fraud or misconduct.
The ‘hypothetical investigation’ is part of Chris Horner’s posturing here. Mann can’t be found in breach of Horner’s wishful thinking.
The weight that Mann’s claim of exoneration has for his on the defamation complaint cannot be rejected. A defamation court is not going to instigate the ‘inquiry that shoulda/woulda/coulda been made’ into Mann in order to test or dismiss his right to rely on those investigations already done.
I fail to see the claimed parallel in the claim that Sandusky and Mann were investigated by PSU, and that that is the simple intention of Simberg’s construct.
Sandusky was not formally investigated by a PSU commitee. Mann was.
Sandusky was investigated by the state and found guilty. Mann was neither.
So much for a parallel beyond it involves PSU.
Rhetorically equating Mann’s supposed handling of data with Sandusky’s ajudged handling of children is clearly intended to defame,as it has no other ‘practical’ purpose I can see. It cannot be found to be ‘truth speaking’.
Bart says:
October 23, 2012 at 10:36 pm
Exactly – the actual words do not indicate Mann as a paedophile. The only thing I see as ‘the case’ is the part of the statement
‘he has molested and tortured data in the service of politicized science’ – which, let’s face it, is essentially fact (he has heavily manipulated and worked data, has he not?) and the only negative aspect is the actual word use.
If Mann wants to argue this phrase he will have to show he hasn’t molested and tortured data which would equate to having to demonstrate as such via full disclosure?
temp says:
October 23, 2012 at 9:43 pm
“In the US speaking the truth can never be considered libel, defamatory or injurious…..They will have to pretty much prove that global warming is real in court.”
If truth is the issue, it isn’t going to be quite that easy to make Mann prove in court the truth of his Hockey Schtick. Unless the law in the applicable jurisdiciton is different, truth is a matter of DEFENSE in a defamation case,
A greater difficulty for Mann is that he is probably a “public figure” and it is much harder for public figures to bring successful defamation actions.
Also, the court may or may not allow the full scope of discovery that the defendants may want. Since Mann has apparently been resistant to discovery in the past, this is likely to be another battle in this case.
Time will tell which side had the most misjudgment — Mann for bringing suit and potentially opening up discovery — or the defendants for provocative statements stimulating an action that might not turn out quite as well as they want. Which is why I asked before if there is going to be a defense fund. This could get expensive and the defendants may need some help.
There’s an old military adage that the job of the army is to find, pin down and destroy the enemy. Mann seems adept at launching these suits and quietly abandoning them after they’ve got him the requisite headlines. Perhaps on this occasion, he could be pinned down by launching a counter suit, which won’t be abandoned
Pointman
Nick says:
October 23, 2012 at 11:33 pm
“The inquiries had status and did not find fraud or misconduct.”
Really? Exactly what court/legal body confered this status? I know of none. You seem to confuse “reputation” with “legal status”.
These inquiries and so forth my have status at say PSU or at CRU but none in the legal system. The “reputation” they have is very bad. Sandusty will atest to the fact that it was easy to have these inquiries cover for him. The courts decided differently however.
If what you say mattered then sandusty would be a free man right now becaue he was “exonerated” by these very same inquiries.
“Sandusky was not formally investigated by a PSU commitee.”
Really could have swore the guy that led Mann’s investigation was also the same that led the sandusty investigation. I guess this is probably more a definintion problem with the word “formal” however.
“Sandusky was investigated by the state and found guilty. Mann was neither.”
Sandusty was free until he went to court… Mann is free… until he goes to court.
Don says:
October 23, 2012 at 11:37 pm
“A greater difficulty for Mann is that he is probably a “public figure” and it is much harder for public figures to bring successful defamation actions. ”
That really is the crazy part… realistically no sane lawyer would go near this case because the chance of it being labeled wrongful lawsuit is pretty high. NRO is going to have to carefully craft the way they respond to have any chance of getting discovery without this getting thrown out before it even starts.
Nick says:
October 23, 2012 at 11:33 pm
It’s very simple. Mann is claiming the hockey stick has been exonerated by investigations which did not examine its validity.
Even were that not the case, there would be no weight to Mann’s claim of exoneration if it could be shown that other studies reasonably contradict the claim, and that the defendants had cause to believe them. A public figure alleging libel in the US must surpass an almost impossibly high standard in order to prevail in a lawsuit due to the 1964 Supreme Court decision in New York Times vs. Sullivan.
“Rhetorically equating Mann’s supposed handling of data with Sandusky’s ajudged handling of children is clearly intended to defame,as it has no other ‘practical’ purpose I can see.”
Au contraire. It highlights the fact that PSU has a history of whitewashing investigations in even the most egregious cases of misconduct by its faculty. If the PSU officials would cover for Sandusky, why would anyone expect them to pause, or experience even the least pang of guilt or regret, in letting Michael Mann skate free without so much as even a minor slap on the wrist? It completely deflates any claim that PSU’s “exoneration” of him has any weight or validity at all.
Kev-in-Uk says:
October 23, 2012 at 11:37 pm
“If Mann wants to argue this phrase he will have to show he hasn’t molested and tortured data which would equate to having to demonstrate as such via full disclosure?”
According to US case law as I understand it (caveat: I am not an attorney, and the US Court system, like any other human creation, is not perfect), yes. But, he has to go even further than that, and show actual malicious disregard for the truth as I described above. I don’t personally know of any case in which a public figure has prevailed in such an action since the Sullivan precedent was established.
I don’t see any way Mann can ultimately prevail on the merits. I think he is hoping to pressure the defendants into an out-of-court settlement, which he can then use to claim additiional faux “exoneration”. The fellow does not lack what we here in the states colloquially refer to as “balls”, you have to give him that. I do hope NRO’s and CEI’s backers have staying power, and do not attempt to force a settlement.
Nick,
I think you fail to understand the legal issue here. Dr. Mann is suing, he must prove that 1) the defendants knowingly purveyed un-truths, and 2) he has been harmed (in a financially compensable way) by said malicious acts. Since both his iconic graph and the “investigations” have been demonstrated to have, at best, severe flaws the first condition fails. Even if you accept his claims of good science and exoneration as true, you cannot show that the defendants did, so the first condition fails again. As for the second, aside from hurt feelings, what material harm has been done the Mann? Those who are inclined to support the good Dr. still do, those who despised him despise him not one whit more.
Regarding the parallels between Sandusky and Mann:
Sandusky is investigated by PSU police (reporting to the PSU president) and they find nothing.
Mann is investigated by PSU faculty (reporting to the PSU president) and they find nothing.
In the latter case, we know that PSU violated its own procedures, ignored the main issues, and did not interview knowledgeable persons. In the former, later reports alleged that the PSU police investigation went nowhere because they failed to interview potentially knowledgeable persons.
The fact that one investigation was by the PSU police and one was by the PSU faculty is because the allegations were different. The similarity is in the result and the appearance of a whitewash.
Don,
Mann would need to prove his Hockey Stick is correct because otherwise he cannot prove willful disregard and malice on the part of the defendants. If the stick is not proven true, then the defendants’ opinions are protected speech.
(Even if the stick is true, if the defendants are sincerely mistaken, their opinions are protected.)
Again, Bart, PSU did not investigate Sandusky formally with a constituted inquiry. They did with Mann. So a parallel is not apparent. And a ‘history of whitewashing’ is not established by your opining on one official inquiry.
Mann is not defending the hockey stick. He is not the defendant. He’s sueing for defamation and damage to his reputation.
To temp: who what conferred status on the Mann inquiry? The universities constitution. On the CRU inquiries? British law. And again,show me the PSU official inquiry into Sandusky, Show me where they announced it,who sat on it and the findings. It must be published somewhere. Sandusky went before a jury in the court system.
Nick says:
October 24, 2012 at 1:53 am
Whether you agree with the Sandusky parallel or not is immaterial. That is the connection the writers were making, and thus there was no malicious disregard for the truth. You may not like it, but your disapproval does not make it legally actionable.
“Mann is not defending the hockey stick.”
Your assertion was that the purported exonerations would add weight to his case. I explained that they would not. We take Freedom of Speech and Freedom of the Press very seriously in the US. They are the fundamental underpinnings of the free society which we cherish.
Will this be the first time the Climategate emails get submitted in an American court as evidence, with their provenance and validity established?
Nick:
At October 24, 2012 at 1:53 am you say
OK. But that would require evidence that Steyn’s article did – or was intended to – “damage to his reputation”.
The assertion that Steyn suggested Mann is a pedophile is a straw man: no such suggestion was made and, therefore, it is not relevant. Steyn said the same organisation (i.e. PSU) exonerated a pedophile (i.e Sandusky) as Mann, and that true statement indicates the validity of PSU’s exoneration of Mann. That seems an eminently reasonable opinion concerning the validity of Mann’s exoneration by PSU.
And Steyn said, “Michael Mann was the man behind the fraudulent climate-change “hockey-stick” graph …”. The issue is scientific fraud and not financial fraud. And the graph is “fraudulent” in that it uses “Mike’s Nature trick” to “hide the decline”: this is demonstrable from the ‘climategate’ emails. The fact that others (e.g. IPCC) may have been taken-in by the fraud is not relevant to the fact of the fraud.
So, please explain how it is possible to damage Mann’s reputation when it is simple to demonstrate in a Court or anywhere else
1.
The climategate emails show he is despised by his colleagues.
2.
His major work has been disproved as being valid science by the Wegman and North investigations .
3.
WUWT and other blogs demonstrate that people who know of his work either
(a) despise him and revile his work
or
(b) support him as their cult leader and support his work regardless of all comment and/or evidence.
Richard
Nick @ October 23, 2012 at 9:05 pm
Ah, gee.
Others have provided the complete statement. Courts use those instead of snippets. Legal stuff, you know. Couple of points:
(1) The statement, in context, t seems to be fair comment however unartfully stated. For example, the same statement could be said about the MSM and and Obama by changing “science” to “his Presidential campaign explanation with Candy at the debate.”
(2) Steyn, if I recall, pointed out something along how the language is used in sentences – something along the lines of allegory, metaphore, etc. I’d bet the farm that Steyn knows a great deal about using the King’s English. Even the Greeks. Read Plato sometime. Or even earlier, in the Bible. For example, it may be actionable to say “You’re a blathering jackass” but it is not actionable to say “I believe he’s behaving just like a jackass in his stubborness.”
Regardless, here we have Mann filing suit in the US alledging all sorts of things while, at the same time in Canada, he’s about to be sanctioned for not producing documents which will surely be sought in the US case. As a reminder, either party can cave in at any time if they’re willing to accept the consequences.
Oh, and it’s highly likely they’ll seek a gag order and might get it. That would be a smart more especially since the folks sued are media and special interest groups that have been in pursuit of the data from Mann for years.
If Mann loses, it’ll only be a few drops from the river of money flowing into the climate industry. It’s a win-win-win for them.
Nick, I think you should read the Penn state investigation again. Three of the four allegations were dismissed out of hand for “lack of creditable evidence”– therefore, not investigated. Think about that for a minute: the committee didn’t search for evidence because they felt there was no evidence to justify the search. That’s like someone reporting a robbery to the police and having them decline to come out because they didn’t have any evidence of a crime.
The committee then moved to the fourth allegation, which they then dismissed because Mann was such an upstanding figure in the science community, and therefore could not have done such a thing:
If one can hold back the laughter from reading about the “intense scrutiny” of Mann’s work by “scientists who may or may not agree with his scientific conclusions” as regards his publications, one might note that Penn State is saying “this is an upstanding guy and therefore could not have done the things he’s accused of.” This is an investigation in name only. When three of four charges aren’t investigated at all, and the fourth is handwaved away in this fashion, how can one possibly claim otherwise?
Funny tactics!
So Mann i trying to borrow trustworthiness from a corrupt investigation that didnt include him?
Well thats creative isnt it?
Nick,
It’s difficult to believe that the PSU inquiry was credible just because it existed. It refused to ask whether a crime had been committed. is that as bad as not investigating at all or worse?
As far as the CEI is concerned, with Mann claiming defamation, CEI’s legal team has carte blanche to examine all of Mann’s scientific output for evidence of fakery.
The nearest legal parallel would be David Irving v Penguin Books and Deborah Lipstadt, where Irving tried to silence his opponents on the description of him as someone who twists the history of the Third Reich in the face of enormous evidence. That allowed the defence two courses: to defend them as fair comment or to seek to defame the appellant by close examination of all of Irving’s works showing that his “mistakes” were all in one direction and that he was indeed a Holocaust denier. in the judges learned opinion Irving was found to be also “a racist, an anti-Semite and a pro-Nazi polemicist”.
In the case of Mann, the fact that he has tried so hard to hide what he was doing at the UVa means that he fears disclosure of the contents, and not his academic freedom at PSU. Unfortunately for Mann, we have clear evidence that Mann knew that some of his results were scientifically indefensible.
I suspect that when Mann realizes the extent of his vulnerability, he’ll withdraw the suit. At that point I wonder if CEI can turn around and bring action against him. Now that would be a thing to behold. The Greeks understood the tragedy of hubris. Time for Mr. Mann to pay up.
@JC
“No. His claim has nothing to do with any “exoneration”. If someone calls him a paedophile, they are libelling him. End of.”
This is a misreading of what was written. They explicity wrote that he “molests data’ rather than children. Take a remedial reading course.
Actually, while we laugh at and ridicule Mann for his latest escapades, we should be applauding him for his latest efforts. His suit against Ball will not accomplish what his suit against NRO will due to simple economics. Ball does not have the money to force full disclosure from Mann, but NRO does. Full disclosure is exactly what Mann has been trying so hard to avoid, yet with his suit, he has ensured that is exactly what is going to happen should it make it to court (I suspect it will be dropped long before then as the discovery motions commence).
What no one could accomplish (the Climategate leaker came close) with numerous FOIA requests, Mann will have to provide for the world to see.
Richard Courtney, I agree that a comment ‘Steyn [and Simberg] suggested that Mann is a paedophile’ is a strawman. I didn’t make such a comment. No need to mention it to me.
Again, I say that putting the name of the exonerated Mann into a sentence with convicted paedophile Sandusky,whose case revealed his years of manipulative evil, is simply designed to be derogatory association exploiting the slender commonality of the two men having worked at PSU….and a chance to suggest that both men are ‘molesters’,one metaphorically ,the other literally.
PSU did not ‘exonerate’ Sandusky, officially or unofficially. Some PSU officials took negligently minimal action on hearing of allegations,but did not exonerate him because they had no power to. So where is the parallel with Mann? Again,Mann took part in an officially constituted PSU inquiry,with process and public findings. So what is the parallel with Sandusky? It’s not difficult: there is none. No informative reason to associate the two names. Instead, an opportunity to smear by association. It may end up free speech,but it’s certainly not its finest hour.
Your quote of Steyn shows that Steyn doesn’t even know the real context of ‘Mike’s Nature trick’.
‘Climategate emails show Mann is despised by his colleagues’…so therefore he can be defamed in good conscience? Really,do the emails show that? ‘His colleagues’? All of them? Some?…and what has this to do with the case?
Manns ‘major work’ [your opinion] has been ‘disproved as valid science’ [your opinion] by Wegman? Wegman has had a few misfortunes of his own,I believe. But again,what has this to do with the specifics of this defamation case? Is this court really going to revisit the results of a partisan ‘investigation’ years old. Whatever Wegman’s findings and whatever their credibility they do not of themselves give license to defame. Meanwhile North gave Mann’s paper qualified support. Not a ringing endorsement,but in no way a disproof. So your view is…. colorful.
Your third point? So he’s a polarising figure to a small number of people who have nothing to do with this case. What is your point?
JC says:
October 23, 2012 at 8:41 pm
No. His claim has nothing to do with any “exoneration”. If someone calls him a paedophile, they are libelling him. End of.
—
Interesting the lengths of deception those who engage in warming propaganda are willing to do. Nobody called Mann a paedophile.
Nick says:
October 23, 2012 at 9:05 pm
Tell me how the fact that Mann has “not been fully investigated” relevant to the findings of investigations that have exonerated him?
—-
Some statements are so far beyond stupid, they defy the imagination.
He who goes to the law has a wolf by the tail.
If I understand Nick’s position correctly, he is claiming that since there was formal inquiry by Penn State in the Mann case, no matter how bad or poorly run that investigation was, the results of that investigation must stand and may not be questioned.
“This level of success in proposing research, and obtaining funding to conduct it, clearly places Dr. Mann among the most respected scientists in his field.”
Bernie Maddoff was likewise, highly respected in his field. Right up till the time he was busted for running a Ponzie scheme.
(How long till Mann’s defenders accuse me of declaring that Mann is running a Ponzi scheme?)
[sorry, that’s one article I won’t link to – Anthony]
@JC says: October 23, 2012 at 8:41 pm
“The gist of his claim that negative characterizations of him and his activities are actionable is that he has been “exonerated”.”
No. His claim has nothing to do with any “exoneration”. If someone calls him a paedophile, they are libelling him. End of.
//////////////////////////////////////////////////////////////
Nobody called Mann a paedophile.
Next?
MarkW, I did not say they [PSU inquiry findings] must not be questioned,but they have status,and Mann is clearly entitled to cite the findings. Personal ventings of bystanders are irrelevant. Charges against the PSU investigation’s procedures have not gone anywhere in terms of overturning the inquiry’s findings and getting it redone. You have to deal withe the inquiries that have been done,not the ones that were not done…what is the court to make of defendants attempting a defense by making charges against the validity of findings that the court has not the remit to redo?
As much as Mann’s achievements in generating project ideas and landing funding are derided here, his extensive collaborative record is pretty sweet for someone so universally loathed.
Mann has injected his person into the debate. He’s a self-promoter and a self-aggrandizing climate martyr. It’s not about the science, it’s about Mann (well, Mann’s ego). That makes Mann a public figure, and subject to ridicule and satire just like a political figure is.
Is public money being used to fund Mann’s actions? Could they be that arrogant?
But I doubt it, his buddy George Soros hass veys ouf proffvidink ze zupport for ze cauz.
Mann has manoeuvred himself into a corner. If he is stating that has not lied then he can not logically deny access to any information as all of it must be honest and true and hence available to the court otherwise why would he deny access to it?
I’m not sure that NRO cares whether or not they win the case. That is not their objective. The opportunity for them is discovery, which will give them access to data that skeptics have been after for years. In view of Mann’s past reticence to provide much of this data, he will probably drop the case at some point. The strength of the case is irrelevant, although considering the nature of US libel law, I don’t think he has much chance of winning anyway.
Nick,
Mann is entirely within his rights to claim that the Penn State “investigation” exonerated him and was all the backing he needs. The defendents are, however, entirely entitled to demonstrate to the court that this “investigation” was nothing more than a whitewash. This is what the defendents intend to do, as is clear from the thread here. Do you deny the right of the defendents to challenge the basis of Mann’s case? If you do, then you are defending the right of Mann to avoid the justice of a court by simply referring to his buddies at the same university. How many criminals must there be that would like to escape justice by simply asking the criminal fraternity to speak on behalf of their good character….
So, the Penn State investigation will stand for nothing in court. It will simply be exposed as a sham. The court will demand a higher level of evidence and investigation than was required by Penn State. It is, after all, a court of law. At this point it seems to me that all the defendents need to do is get to the point where they have shown their remarks were “fair comment”. They don’t really need full discovery by Mann to do this and nor should they – after all, their comments were made on the basis of other material in the public domain. So they can just drag Steve McIntyre into court, demonstrate that their questioning of Mann’s science was fair comment on the basis of that work and it’s job done. Or indeed any other climate sceptic that has looked into Mann’s work and challenged it. Mann will then be in the position of having to prove his science is well founded by revealing his data and methods but even that won’t actually win him the case because the defendents don’t actually need to prove they were right all along, they only need to prove that their comments were reasonable based on what they knew at the time (i.e. exactly because Mann has not published his data and methods the defendents were always free to challenge Mann’s assertions based on other information that was in the public domain). In other words, if Person A makes a public claim but fails to support it with evidence, and Persons B,C & D make a counter-claim and provide evidence to back up their counter-claims, is it reasonable for the media to rely on the statements of B,C, and D to infer that person A was a liar? Clearly it is, as many politicians have learned to their cost (I am sure the current presidential battle will give us plenty more examples). So I suspect that Mann will be forced to drop his case, perhaps shortly after reading what is written in this thread, since up till now he has been listening only to a lawyer eager to make money from a case driven forcefully by Mann’s own ego and not by the logic of the case being winnable. He is being a fool and the deeper into this court case he allows himself to be dragged, the bigger fool he will make of himself.
A lawyers success is only as good as his clients input,
is it not amazing what lawyers will do for money ? ( and if this goes, its going to cost someone more than lots. )
Mann has a stage on which to strut and try to play victim without going so far as complying with the discovery requests we’d all like to see compliance with He’s exerienced at it. His last book is all about that. It’s all he has left because his work is visibly wrong despite the prior blessings . Mann should be a bit more resolute about drawing attention to himself, but that always seems to be paying for itself until it doesn’t. Right now, he’s still relatively ahead and it has always depended on not going through discovery..
It looks to me like the Sandusky comparison was in questioning the Penn State investigations, not the Mann. Mann was sharply criticized (allowed if not encouraged) separately from a work that anyone is feel to conclude fraud about. Valid questions raised. Then there’s those troubling elements of proof to deal with. They do not know and do not believe that the hokey stick is not a fraud. Who relied on these representatiions and how was he harmed apart from those myriad of other critics that aren’t named and in a way that freedom of the press and speech permits? And – how is this harm not attributable to someone he already is suing lkieTim Ball. The tricky part will be for CEI, Simberg, NRO and Steyn to avoid getting the case thrown out at the start and to steer the case to the desired discovery.
Doug Proctor says:
“If Mann is to be guilty of fraud, misrepresentation or other types of malfeasance wrt the Hockey Stick, I suggest he has to be found to have:
1. used an inadequate data selection, culling and modification technique that is,
2. generally recognized as not just preferred but required,
3. known about this technique and been able to use it,
4. chose not to use it because
5. he knew that the results of using it would give a result different from and antagonistic to
6. a conclusion he decided should be obtained because
7. that conclusion would support an agenda that
8. he had irrespective of the results of the temperature profile now known as the Hockey Stick.”
You are absolutely correct. If you have read A.W. Montoford’s (Bishop Hill’s) Hockey Stick Wars, and followed this debate at Steve McIntyre’s Climate Audit, then like myself and many others here, you would have come to the conclusion that Michael Mann did exactly what you have described above.
I just hope you call Steve McIntyre as an expert witness.
And discovery aside, if this case goes to trial (unlikely if full discovery is allowed) you should sell tickets to the Mann deposition, or at least sell DVDs. When has a member of the Team ever been questioned by someone who even disagreed with them, let alone by a well informed skeptic (by his attorney). And under oath!
Hide the decline, inverted Tijlander, statistical illiteracy, deleted emails. Talk about a target rich environment.
The problem is that the courts (in the USA, at least) don’t exactly have a great record in terms of neutrality and common-sense when it come to climate matters. Having declared co2 to be a pollutant for instance.
Nick,
Just because you don’t take the time to research the facts does not mean that you get to make them up: “PSU did not ‘exonerate’ Sandusky, officially or unofficially. Some PSU officials took negligently minimal action on hearing of allegations,but did not exonerate him because they had no power to. So where is the parallel with Mann? Again,Mann took part in an officially constituted PSU inquiry,with process and public findings. So what is the parallel with Sandusky? It’s not difficult: there is none.”
In fact, PSU was officially and formally notified that Sandusky was suspected of child molestation in 1998. PSU officially and formally carried out an investigation of Sandusky for child molestation in 1998. PSU officially and formally whitewashed the clear evidence of Sandusky’s guilt in 1998, and beyond.
http://yorechildren.com/2012/04/12/the-1998-sandusky-investigation-home-field-advantage/
Graham Spanier became President of PSU in 1995, and was in charge of both the Sandusky and Mann investigations.
“A grand jury said that Mr. Spanier, the university’s president since 1995, was made aware of a report of an incident involving Mr. Sandusky. Upon learning about a suspected 2002 assault by Mr. Sandusky on a young boy in the football building’s showers, Mr. Paterno redirected the graduate assistant who witnessed the incident to the athletic director, rather than notifying the police. Mr. Paterno said the graduate assistant who reported the assault, Mike McQueary, said only that something disturbing had happened that was perhaps sexual in nature. Mr. McQueary testified that he saw Mr. Sandusky having anal sex with the boy. ”
http://www.nytimes.com/2011/11/10/sports/ncaafootball/-joe-paterno-and-graham-spanier-out-at-penn-state.html?_r=1&pagewanted=all
That’s the basics of the PSU cover-up of Sandusky’s crimes. The parallel to the PSU “investigation” of Mann’s alleged crimes is striking.
never interrupt your enemy while he is making a mistake….
@ Dave says: October 24, 2012 at 8:46 am
Yep! But the beauty is, NRO could never BRING a suit to have such an opportunity! They had to rely on the ego of Mann.
If Mann is found to be a “public figure,” (which seems likely to me) then there is a different standard. When it comes to public figures, the first amendment guarantee of free speech comes into play. For that reason, in order to prevail, the plaintiff’s standard is [quote] “actual malice” – knowledge that statements are false or in reckless disregard of the truth – is alleged and proved. [end quote]
So you have to prove that the defendants knew that what they said is false. It’s tough to prove what someone else knows.
Here’s the Supreme Court case that establishes the burden of proof (NEW YORK TIMES CO. v. SULLIVAN, 376 U.S. 254 (1964) ):
http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=US&vol=376&invol=254
EerieParallels:
I write to thank you for your post at October 24, 2012 at 10:36 am. The links are very informative and – as you say – are directly relevant to the Mann vs NRO case.
Not being in the US I was not aware of the details of the case which seems similar (but not as serious) as the Jimmy Saville scandal now raging here in the UK.
I commend reading what you have provided by all interested in the Mann vs NRO case but who like me were not aware of the details of the PSU/Sandusky case. I copy the links you provided here to aid people wanting to read them.
http://yorechildren.com/2012/04/12/the-1998-sandusky-investigation-home-field-advantage/
http://www.nytimes.com/2011/11/10/sports/ncaafootball/-joe-paterno-and-graham-spanier-out-at-penn-state.html?_r=1&pagewanted=all
Useful information is always a help and I am sure I am not alone in appreciating the valuable input you have provided. Thankyou.
Richard
The problem for Mann is if he drops this case(s), it is tacit admission that he is a fraud — especially given the fact he is not paying for his attorney fees.
What excuse will he have for dropping the case?
I’m sure it will be something along the lines of “This is taking away too much of my valuable research (Facebook) time.”
Nick says:
October 24, 2012 at 7:20 am
—
While you never said directly, that the findings of the “investigations” can’t be questioned, you did state that the findings of investigations are sufficient to force the courts to find in favor of Mann. You have also been vehement in defending those findings as conclusive despite the numerous flaws being pointed out in both method and logic.
That’s a difference without distinction.
I believe these are Mark Steyn’s original comments:
“In the wake of Louis Freeh’s report on Penn State’s complicity in serial rape, Rand Simberg writes of Unhappy Valley’s other scandal:
“‘I’m referring to another cover up and whitewash that occurred there two years ago, before we learned how rotten and corrupt the culture at the university was. But now that we know how bad it was, perhaps it’s time that we revisit the Michael Mann affair, particularly given how much we’ve also learned about his and others’ hockey-stick deceptions since. Mann could be said to be the Jerry Sandusky of climate science, except that instead of molesting children, he has molested and tortured data in the service of politicized science that could have dire economic consequences for the nation and planet.’
“Not sure I’d have extended that metaphor all the way into the locker-room showers with quite the zeal Mr Simberg does, but he has a point. Michael Mann was the man behind the fraudulent climate-change “hockey-stick” graph, the very ringmaster of the tree-ring circus. And, when the East Anglia emails came out, Penn State felt obliged to “investigate” Professor Mann. Graham Spanier, the Penn State president forced to resign over Sandusky, was the same cove who investigated Mann. And, as with Sandusky and Paterno, the college declined to find one of its star names guilty of any wrongdoing.”
—
—
Simberg clearly refers to the whitewash of two scandals at Penn State. Simberg is not calling Mann a pedophile; but says Mann “…molested and tortured data…” The implication is that Mann doens’t give a damn about future ramifications, so long as he gets enjoys immediate gratification. Got that??????
Simberg could have used the proper name “Sandusky” at will, so long as he did not put Mann in the room with Sandusky, or say Mann is Sandusky. It’s a real contorted stretch to read anything else into it unless, of course, Mann harbors some terrible guilt over his own personal behavior.
If Michael Mann insists on claiming libel over the statements, then discovery MUST remand all his data to the defense. It’ll be interesting to see if Mann would prefer being held in contempt rather than exposed as a deceiver or fraud. We may find that Michael Mann is a monster.
Richard,
Happy to help. There is much, much more available, both commentaries and original source material, that should shed light on the two cases, and their eerie parallels. Any objective observer is bound to conclude that the PSU administration actively protected its cash and prestige generators (football and climate “science”) with sham “internal investigations” that could be waved in the faces of anyone who questioned their “heroes.”
A couple of commentaries that pretty much cover all the bases in comparing the two cases of PSU cover-up “investigations” are here:
http://www.americanthinker.com/2012/07/the_climategate_and_jerry_sandusky_scandals_a_common_thread.html
http://www.webcommentary.com/docs/johnosullivan-111117.pdf
And the source materials, the PSU “investigative reports” are here:
http://www.research.psu.edu/news/2010/spanier-070110-re-mann.pdf
http://live.psu.edu/pdf/Final_Investigation_Report.pdf
http://www.thefreehreportonpsu.com/REPORT_FINAL_071212.pdf
@ EerieParallels says: October 24, 2012 at 12:27 pm
You bring up an interesting point. If the discoveries start to turn against Penn State, I wonder how long they will stand idly by before they take action and can Mann, so they can claim privilege on the documents that would tend to implicate them?
Phil,
I’m not a lawyer. But I’ve followed these cases pretty closely.
“Discovery” is a legal process by which each side is required to share with the other documents, witnesses, facts, details, etc that are pertinent to the case. IE: “All work products, emails, drafts, letters, correspondence, phone logs, notes, or any other written or electronic material related to Dr Mann’s climate research during, before, or after his employment at Penn State.”
Conspirators tend to block access to material (as we saw in the Mann-related lawsuit in Virginia), on a variety of legal technicalities. They were successful in the UVA case: http://www.atinstitute.org/virginians-get-first-peak-at-secret-uva-emails/
I guess you could call that “claiming privilege.” Bottom line is that they were able to block the release of most of the emails sought in that case.
It would seem that the Penn State/Mann/Steyn case might target the PSU “investigation.” Steyn should seek full information on the investigation, communications between the “investigators” and Mann and/or Mann’s surrogates, and other supporting and related communications.
Since Mann is the one who is claiming, in effect, that he has nothing to hide, it should be difficult for him to then hide those potentially damning communications.
This is where it can get sticky. Destroying evidence, lying under oath about evidence, and other obstructions are potentially criminal (ask Martha Stewart–she went to prison for that).
Nick’
, On the CRU inquiries? British law,’
no dead wrong the give away being no evidenced was taken under oath . There has yet be no legal investigations into CRU , just the jokes they set up for themselves, which were worthless . Just like Penn State .
Some good comments from JohnC and Australis:
I was incorrect on some points. However ….
Yes, Mann as plaintiff is the one with the problem of proof that the CEI et al knew or should have known that his research methodology (not the data collection but the style of analysis) was correct or sufficiently technically acceptable to be professionally “correct”. But he also says he was defamed/libeled, in that he was said to have conducted some sort of deceptive, purposeful act through his research. This purpose would have been to dismiss evidence that global temperatures have been in the current range or higher within the time of his research AND demonstrably so within the data of his research.
This act to deceive or misrepresent is the intent of all the Mann-bashing: that Mann got rid of the MWP on purpose, to bolster the CAGW narrative going around. But in court he doesn’t have to prove that he didn’t do bad things, but only that the defendants SAID he did bad things. It is then up to the defendants to show that, indeed, he did bad things, in which case there is no defamation but a description of events. Which they have to do with information available to them prior to the ‘suit.
The intent to deceive is critical. To do something incorrectly is a professional and personal failure, but not a crime, unless you did so on purpose. Incompetence does not get you jailed, just fired. So even if CEI can show that the MWP disappeared, there was no culpable action unless Mann could be shown to have known that the MWP should have been left in. He, and other, said that the MWP was regional, not global. So in his mind he could easily argue that all he did was remove a regional signal from a global trend. Data cleaning, like getting rid of outliers. The MWP should have been left in, we’d argue, but on the face of it, not a crime to take it out to fit your .
You are not supposed to have to defend yourself outside of the Napoleonic Code, but in a defamation case you really do have to show that your comments were descriptive, even if they were also demeaning. The Hockey Stick is not really about bad science but about science being profoundly abused for nefarious reasons. Bad science is far easier to demonstrate than scientists acting badly..
Doug Proctor says (October 24, 2012 at 3:39 pm): “Bad science is far easier to demonstrate than scientists acting badly..”
Mann is currently suing Dr. Tim Ball for writing that Mann belongs in the state pen, not Penn State, a charge I consider more serious (and difficult to back up) than the statements by Steyn and NRO. Yet in the Ball case Mann is inexplicably dragging his feet on providing the discovery materials that would supposedly win his suit. If he can’t make his case against Ball, Mann has no case against Steyn.
Doug Proctor says:
October 24, 2012 at 3:39 pm
“But in court he doesn’t have to prove that he didn’t do bad things, but only that the defendants SAID he did bad things.”
In the US, he does have to prove not only that he did not do bad things, but that the defendants knew it, or were capable of knowing it but willfully chose to remain uninformed, and made the statements regardless. Under that standard, it is nearly impossible for a public figure to prevail in a libel case here.
See background in my comment above.
The tortured data just tweeted – “Avenge me!”
Really? Is this your argumentation?
JohnA, I realise that I missed the 1998 PSU investigation of Sandusky,so that line does not stand. There is a parallel in official inquiries having been carried out in both cases….but again that parallel was not the one Simberg was contriving…as Steyn’s comment on Simberg’s line actually emphasises : “I don’t know whether I’d go as far as…”
MarkW, there is a lot of wishful thinking going on here. I have been pointing out that the findings from various official inquiries have been for Mann,and have status. This is not a matter of opinion,it’s fact. I have not defended the inquiries as conclusive,and have not said they would force the court to find in Mann’s favor. What I noted that is they are done,are official and support Mann as background and the court must acknowledge them. There are no findings against him except for Wegman,which is way back when,and which is flawed by using plagiarised material.. Finally, blog opinions cannot be elevated to the same status as the inquiries before a court.
The real issues remains Simberg deliberate association of Mann’s name with the molester Sandusky’s,with the framing of Mann as a metaphorical molester. The attempts here to reframe Simberg’s comment as some bland technical point strains credulity. As well Steyn has called the hockey stick ‘fraudulent’, when there is no such official finding to support that charge. That is what has weight.
Nick:
Your post at October 25, 2012 at 1:37 am is nonsensical. It says
There is no “weight” because your statements are plain wrong. And there is no claim of a “bland technical point” for the same reason.
The facts are
1.
Man has not made a case against “Simberg”. He is claiming libel against Steyn and the NRO.
2.
Simberg, Steyn and the NRO did NOT associate “Mann’s name with the molester Sandusky’s”. They made the valid comparison of the investigations by PSU into claims of misconduct by Mann and by Sandusky.
3,
Steyn and the NRO said Mann is a “metaphorical molester” of data and several investigations have demonstrated that he is.
4.
Steyn made the factual statement that Mann’s hockey stick graph is “fr@udulent”. It is “fr@udulent” because it used “Mike’s Nature trick” to “hide the decline”.
5.
The Court case will easily create an “official finding” that Mann’s hockey stick graph is “fr@udulent”. And this why so many of us are pleased that Mann’s ego is so large it has made him sufficiently stupid as to bring the case.
Richard
Maybe Mchael Mann is the Jerry Sandusky of climate science. Maybe Michael Mann is NOT the the Jerry Sandusky of climate sciemce. But if Michael Mann wanted to avoid the rputation of being the The Jerry Sandusky of climate science … google bombing himself in the foot …he should not have made himself the Barbra Streisand of climate science. I wonderhow long it will be bofore google searches on Sandusky return top links regarding Mann?
The Sandusky comparison was that Mann was the Sandusky of Climate Science as related by two similar Penn State whitewashes.
That is hardly a credible accusation of pedophilia. Even if it were, why don’t you include the entire quote where he specifically clarified that it was not?
” particularly given how much we’ve also learned about his and others’ hockey-stick deceptions since. Mann could be said to be the Jerry Sandusky of climate science, except that instead of molesting children, he has molested and tortured data in the service of politicized science that could have dire economic consequences for the nation and planet.”
(emphasis added)
That’s Steyn quoting Simberg, here.
http://tinyurl.com/79eomj2
People making arguments so easily refuted by the evidence are not doing anyone any favors, and marking themselves as either dishonest, or misled simpletons.
“the framing of Mann as a metaphorical molester.”
Of scientific data, not actual human beings. “he has molested and tortured data in the service of politicized science” is the direct quote from Simberg included in Steyn’s blog post.
Your own admission/recognition that it is metaphor further tends to render the statement non-defamatory.
temp says:
October 23, 2012 at 9:43 pm
This trial may well bring PSU to court in a host of ways possibly even taking the college down. Cases like this can have such a wide effect and depending on how the lawyers in this case work with others such as the people suing sandusty you may well see the end of PSU.
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When you open a can of worms it is always more difficult to get the worms back in the can.
Ferd and Temp,
The screws are already being put to PSU. This is hitting them where it hurts. They are a massive business operation. They are, in effect, a taxing entity that has the power to generate huge cash flow. They have been able to leverage this power to raise billions of dollars, by selling bonds.
All financial agreements that reach into the future, like bonds or mortgages, are based on the character, credibility, and credit-worthiness of the parties.
Already, the Sandusky scandal has negatively effected PSU’s character and credibility. This is lowering their credit-worthiness:
http://blogs.barrons.com/incomeinvesting/2012/10/16/sandusky-scandal-hits-penn-state-credit-rating-as-sp-cuts-outlook/
A massively publicized trial that reveals the depths of their complicity with Mann’s alleged transgressions will not help PSU’s reputation.
Another factor to consider as things develop.
The only thing missing here is a whistle-blower from within Mann’s group. Almost all tightly-held conspiracies are revealed and broken only by an insider cracking. Sandusky’s case was finally cracked when McQueary spoke up. Mafia conspiracies are usually cracked by an insider. Watergate was cracked by the FBI’s acting director, Mark Felt (better known as Deep Throat) spilling the beans to the Washington Post.
It’s only a matter of time before a Mannian insider comes clean.
The rewards are potentially huge.
Coach Springer says:
October 24, 2012 at 9:33 am
“Mann has a stage on which to strut and try to play victim without going so far as complying with the discovery requests we’d all like to see compliance with He’s exerienced at it.
…
Then there’s those troubling elements of proof to deal with. They do not know and do not believe that the hokey stick is not a fraud.”
Truth in a typo!
Nick says:
October 25, 2012 at 1:37 am
As well Steyn has called the hockey stick ‘fraudulent’,
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And the hockey stick has every right to sue Steyn in court for defamation.
What you and others have failed to consider is that it is quite possible to create a document that gives a fraudulent impression without yourself having committed fraud. For example, if you make an innocent mistake, the result would simply be misleading.
However, if the IPCC was to then publish this result on the front cover of their report, knowing full well that the work has not been replicated and was contradicted by other studies, then the hockey stick could well be seen to be fraudulent, because it does not tell the whole truth, and was not presented in accordance with scientific norms.
The hockey stick makes the MWP and LIA disappear, which is contradicted by a significant body of previous evidence. It is not accepted anywhere in science to place a single, un-replicated work above all other work. Yet, the IPCC did just that. They violated scientific norms and as such the hockey stick itself can be seen to be fraudulent because of how it was used by the IPCC, independent of any finding concerning the original.
This level of success in proposing research, and obtaining funding to conduct it, clearly places Dr. Mann among the most respected scientists in his field
=================
Isn’t this why the Sandusky investigation went nowhere? Because of the $$ he was bringing in? Same rule would appear to apply in both cases:
Don’t look a gift horse in the mouth.
EerieParallels says:
October 25, 2012 at 7:41 am
Ferd and Temp,
The screws are already being put to PSU.
===========
Might there be grounds for a class action by the taxpayers of the US against PSU, to recover taxes lost due to faulty economic policy based on faulty scientific papers? PSU’s liability would appear to the depend on whether they properly investigated the allegations of faulty science being published at their institution.
Could Mann’s defamation case bring to light the necessary documents to make such a class action against PSU possible? There would appear to be a huge downside risk to PSU in Mann going forward, given the very vigorous actions to date to keep public documents hidden from the public.
Mr Berple,
I’m with you. The potential liabilities for PSU’s whitewash “investigation” of Mann’s “science” are tremendous.
Again, the Sandusky parallels are eerie.
PSU is facing massive lawsuits for their whitewash “investigation” of Sandusky’s crimes.
The lawsuit that will likely be the most “eerily parallel” to future revelations about Mann’s work at PSU is the whistle-blower lawsuit:
http://www.collegian.psu.edu/archive/2012/10/25/McQueary_hearing_update.aspx
Whistle-blowers have a very, very big stick to wield in cases where US Federal government funds are involved. A law, known as the “False Claims Act” allows any lawyer to bring a suit, on behalf of the US government, based on testimony and evidence provided by an insider, ie, “whistle-blower.”
PSU’s climate research was pretty much wholly funded by US government grants.
False Claims suits authorize up to 30% of funds clawed back from fraudulent grantees to be paid to the whistleblowers. I don’t believe that there is a “damages” element to the claims, but there may well be.
http://onwardstate.com/2010/01/14/former-cia-agent-investigates-climategate/
http://www.taf.org/
pouncer says:
October 25, 2012 at 6:00 am
Now that was funny and on target.
Richard Courtney,
1. Simberg is named as a defendant in the case. Read the complaint.
2. Simberg (quoted by Steyn) ‘associated’ Mann’s name with Sandusky’s by a construct. It is a physical association,in a sentence with the intent to link the real molesters criminality metaphorically to Mann. The reality of that is demonstrated by CEI’s decision to remove that part of Simberg’s confection from their site,and Steyn’s introduction of Simberg’s confection with a caveat. The court will be deciding whether that construct is reasonable opinionating or whether it is defamatory….not re-reviewing Mann’s old paper.
3. Inquiries [official ones that have published findings] have not found Mann to have ‘molested’ data.
4, ‘Mike’s Nature trick’ does not refer to tree ring data used in MBH99. He hid no decline in that paper. It does not use Briffa’s recon.
5. in the light of 1 to 4, your declaration of which way the judgement goes must be seen with some amusement.
Nick:
Thankyou for your post addressed to me at October 25, 2012 at 1:30 pm.
I am pleased that I have given you “some amusement” and I thank you for the great amusement which your post gave me.
You are mistaken if you think a complaint that ‘the words “the fraudulent hockey stick graph” are defamatory’ will not result in examination of the basis, nature, presentation and use of the graph.
I could address some others of your points, but they all relate to the answer I have provided.
Richard
Just my 2 cents worth. Civil suits in the US are not a totally different animal than criminal suits. Judges allow just about anything that lawyers bring to court as long as it is pertinent to the case at hand. In that regard, we will be relititgating the Hockey Stick and all of the attendent noise associated with it.
I hope Mann has a thick skin, and he is ready to put his professional reputation on the line. In a way, this case reminds me of Lilian Hellman’s civil case against Mary McCarthy. In the end, Hellman’s reputation was ruined beyond repair. I agree with Steyn; the chances of this case making very far are slim to none.
The defense lawyer should immediately file for discovery on all those documents that they have been trying so hard to avoid producing for public scrutiny while simultaneously filing a countersuit in California using the anti-SLAPP law. Mann will back down to avoid discovery resulting from his lawsuit, but they might be able to use the countersuit to keep the process open.
And don’t forget to refuse to accept any secrecy agreements for the documents, pointing out that they should already be public under the freedom of information act. Mann will be sweating bullets.
There is a dark unknown here. Many of us envy the Americans for their right to free speech but few of us envy their access to discovery being at the whim of a judge.
“With this latest lawsuit, they may find they have no choice.”
BUT
“There is a dark unknown here. Many of us envy the Americans for their right to free speech but few of us envy their access to discovery being at the whim of a judge.”
Exactly – and what a judge!!!! http://johnosullivan.wordpress.com/2012/10/24/michael-mann-gets-most-biased-judge-for-key-us-global-warming-trial/