Analysis of Court of Appeals’ Defamation Opinion Holding That Climategate Inquiries Exonerated Michael Mann

Guest post by “JD Ohio”, Attorney*

 

Overview of Important Science and Email Issues
Useful to Analysis of Court of Appeals’ Defamation Opinion Holding That Climategate Inquiries Exonerated Michael Mann

Foreword

I have followed climate matters for a long time and have been aware of the inquiries that followed Climategate. So, instinctively, when Michael Mann claimed that Climategate inquiries exonerated him, I believed the claim was incorrect. There were four inquiries that the appellate Court focused on (See p. 96 of court opinion which referred to “four separate investigations”) which accepted Mann’s argument that he had been exonerated. See link to opinion: https://cei.org/litigation/michael-e-mann-v-national-review-and-cei-et-al The Court’s identification of the inquiries was confusing, but I will focus on the main reports that seem to be the basis for the Court’s conclusion. Having reviewed the inquiries closely, my opinion is still that the investigations did not exonerate Mann.

Some of the emails are misleading, and the various reports and graphs that are important to the resolution of this case are very hard to keep track of. If one attempts to dive in the middle of this dispute without having a clear idea of the background, it is easy to get sucked down a rathole of confusing and overlapping studies, graphs, emails and inquiries. The point of this blog post is to create an accurate reference work that is comparatively easy to follow. So, although it is somewhat tedious, I have gone into a good amount of detail on what would otherwise be minor details.

I originally wrote this post for Lucia’s Blackboard (See http://rankexploits.com/musings/2018/was-michael-mann-exonerated-by-the-post-climategate-investigations-as-was-decided-by-the-dc-court-of-appeals/ 0 , but she prefers to have her blog mostly invisible to search engines, so I am posting the same article here to give my post wider circulation and in the hope that someone on the DC Court of Appeals will see it. The facts and, additionally the briefs submitted by Michael Mann are maddeningly confusing and hard to follow. Since, I have followed climate matters for about 10 years, and am a lawyer, I almost certainly have a much better intuitive grasp on the facts than an appellate judge, with many other cases to address, would have.

Additionally, I have other matters to attend to and I may be a bit slow in responding to comments.

Concise Summary of Findings

Although the Court was not always clear as to what four studies it was looking at (See *** at end of this post), here is a brief description of my findings pertaining to the studies most relevant to the Court opinion.

1. Muir Russell Report (also called called the Independent Climate Change E-mails Review (ICCER): This report was commissioned by the University of East Anglia (UEA) to look at issues that arose concerning the UEA following the release of 1073 UEA emails. Although Mann was mentioned in some of the emails, the real focus was on the academic integrity of the UEA. It could not exonerate Mann. The House of Commons reviewed Muir Russell, and the Court subsumed Muir Russell under the United Kingdom House of Commons Report.

2. Oxburgh Report (formally known as the “Science Appraisal Panel of Climatic Research Unit of University of East Anglia): This report was reviewed by the House of Commons report. It didn’t even mention Mann or any of his publications.

3. Penn State Two Stage Inquiry: These reports did not closely examine scientific criticism of Mann’s work, and Penn State totally flubbed the investigation into whether, at the very least, Mann indirectly took part in an email deletion scheme when he forwarded an email from Phil Jones to Gene Wahl asking for the deletion of emails pertaining to the Fourth Assessment Report (AR4) of the IPCC.

4. National Science Foundation (NSF) Close-Out Memo regarding Penn State investigation of Michael Mann. This Memo is completely unsubstantiated; it is not clear who wrote the memo or did the underlying work. Also, although it is widely believed that it is referring to Penn State and Mann, it never explicitly names either.

5. EPA Reconsideration of Endangerment Finding: On p. 83 of the opinion, the Court referred to the EPA as having found that the science underlying the Hockey Stick was valid. When the EPA did look at Mann specifically, it downplayed his contributions, and he was only mentioned once in the Reconsideration Report. (See p. 85 of report) Since the EPA’s consideration of Mann was so skimpy, and was only briefly mentioned by the Court, I will not discuss it further.

Overview of Important Science and Email Issues Useful to Understanding the Legal Dispute

I. Problems with Tree Proxies (Divergence)

Around 1960, tree proxies which seemed to be accurate indicators of rising and falling temperatures began showing declines (less growth and density), when the instrumental records were showing rising temperatures. There seems to be no doubt that a number of tree proxies were simply inaccurate after 1960. See https://climateaudit.org/2008/11/30/criag-loehle-on-the-divergence-problem/ Thus, to the extent that tree proxies were known to be inaccurate it is sometimes reasonable, with full DISCLOSURE, to splice together old tree proxies from, say 500 years ago up to 1960 with instrumental records. If you continued with tree proxies known to be defective, it would obviously be wrong.

The problem with tree proxies raises a huge issue. If they aren’t accurate now, how do we know that they were accurate four or eight hundred years ago? The answer is that we don’t know. However, for some reason, a lot of skeptics place the vast majority of their focus on the instrumental temperatures and not the fairly easy question dealing with the apparent unreliability of proxies. It seems to me that the only way anyone can say that today’s global average temperatures (for example) are, let’s say 2.5 degrees C higher than those in the 10th century is to preface that statement with the qualifier, my best guess is….

II. The Misleading “Hide the Decline” Email

From Phil Jones: “I’ve just completed Mike’s [Mann’s] Nature trick of adding in the real temps to each series for the last 20 years (i.e., from 1981 onwards) and from 1961 for Keith’s to hide the decline.”

From: Phil Jones [November 1999]
To: ray bradley ,mann@xxxxx.xxx, mhughes@xxxx.xxx
Subject: Diagram for WMO Statement
Date: Tue, 16 Nov 1999 13:31:15 +0000
Cc: k.briffa@xxx.xx.xx,t.osborn@xxxx.xxx

Dear Ray, Mike and Malcolm,
Once Tim’s got a diagram here we’ll send that either later today or
first thing tomorrow.
I’ve just completed Mike’s Nature trick of adding in the real temps
to each series for the last 20 years (ie from 1981 onwards) amd from
1961 for Keith’s to hide the decline. Mike’s series got the annual
land and marine values while the other two got April-Sept for NH land
N of 20N. The latter two are real for 1999, while the estimate for 1999
for NH combined is +0.44C wrt 61-90. The Global estimate for 1999 with
data through Oct is +0.35C cf. 0.57 for 1998.
Thanks for the comments, Ray.

Cheers
Phil

Prof. Phil Jones
Climatic Research Unit Telephone +44 (0) xxxxx
School of Environmental Sciences Fax +44 (0) xxxx
University of East Anglia
Norwich Email p.jones@xxxx.xxx
See https://climateaudit.org/2009/11/20/mike%e2%80%99s-nature-trick/

(See also Climate Audit: “The Jones trick has been explained in previous CA posts … and consists of replacing the tree ring data with temperature data after 1960 – thereby hiding the decline – and then showing the smoothed graph as a proxy reconstruction.) https://climateaudit.org/2009/12/10/ipcc-and-the-trick/ )

When you first hear the phrase “hide the decline,” it is easy to believe that the speaker is talking about hiding a real decline in instrumental temperatures. Instead what Jones is talking about is hiding the decline evident in tree proxies after approximately 1960. However, if you are going to attempt to have 1,000 year or 1,400 year temperature reconstructions, just a little bit of thought will make it clear that the tree ring proxies have to be dropped after 1960. On the other hand, there is a large question as to whether it is worthwhile to do 1000 year reconstructions when the proxies used are known to be unreliable in today’s world; how is it really possible to know that proxies were reliable 1000 years ago?

It is true that before the 1998 Hockey Stick introduced by Mann, the divergence problem was openly discussed in the literature. What Jones was doing when he spoke of “hide[ing] the decline” was attempting to gloss over the divergence problem and the decline in temperatures that would be shown by continuing to use tree proxies when extrapolating temperatures as shown in a paper written by Keith Briffa of University of East Anglia [UEA] who was part of the Climatic Research Unit (CRU).

III. Mike’s Nature Trick

Understanding this requires a knowledge of statistics, and the ability to compare Mann’s work in his Nature paper with what Jones was doing for the WMO.  In light of my limited knowledge of statistics, I am punting on this.  See, for instance, https://climateaudit.org/2011/03/29/keiths-science-trick-mikes-nature-trick-and-phils-combo/

Analysis of “Exoneration” Part of Court of Appeals Decision

The Court of Appeals issued a lengthy, 111 page opinion, holding that Michael Mann had a valid defamation case to present against Rand Simberg, Rich Lowry, the National Review , the Competitive Enterprise Institute, and inferentially, Mark Steyn. (Who did not appeal, but whose case would rise and fall on the case of the others). The portion of the opinion that I am focusing on is that portion, from p. 82 to p. 97 in which the Court heavily relied on four investigations to reach the conclusion that the defendants could have acted with actual malice in criticizing Mann for the research he did.

My basic conclusion is that the four “investigations/endeavors” did not thoroughly investigate Mann and that the Court made a clear mistake when it incorrectly relied on the investigations to allow Mann’s lawsuit to proceed.

A. Some Publications, Resources and Facts That Are Important to the Case.

1. The Court of Appeals Decision
(See https://cei.org/litigation/michael-e-mann-v-national-review-and-cei-et-al )
2. The alleged defamatory columns attached to the end of the decision.
3. The Defendants are not claiming that Mann acted in a criminally fraudulent manner in the sense that he could have made up numbers. The defendants were using the term “fraud” in a polemical sense. In common polemical usage, “fraudulent” doesn’t mean honest-to-goodness criminal fraud. It means intellectually bogus and wrong.” (See p. 110 of the opinion)
4. MBH 98 (first Hockey Stick paper), MBH 99 (Second Hockey Stick Paper, going
1000 years further) See https://en.wikipedia.org/wiki/Michael_E._Mann See also, S. McIntyre collection of Hockey Stick publications.
Hockey Stick Studies
5. WMO Diagram and explanation of Hide the Decline email. Also, IPCC Third Assessment Graph
https://climateaudit.org/2009/12/10/ipcc-and-the-trick/ For more context, see http://www.americanthinker.com/articles/2010/02/climategates_phil_jones_confes.html
6. Hide the Decline email:
I’ve just completed Mike’s Nature trick of adding in the real temps to each series for the last 20 years (i.e., from 1981 onwards) and from 1961 for Keith’s to hide the decline. See:
https://www.justfacts.com/globalwarming.hidethedecline.asp
7. Phil Jones deletion email request sent to Mann for him to forward to Eugene Wahl, which Mann did.

“Mike,
Can you delete any emails you may have had with Keith [Briffa] re AR4? Keith will do likewise… Can you also email Gene [Wahl] and get him to do the same? I don’t have his new email address. We will be getting Caspar [Ammann] to do likewise.
Cheers, Phil

**** Mann reply:

“Hi Phil,
… I’ll contact Gene [Wahl] about this ASAP. His new email is: generwahl@xxx talk to you later, mike

For context, see: https://climateaudit.org/2011/02/23/new-light-on-delete-any- emails/ and https://climateaudit.org/2011/09/02/nsf-on-jones-email-destruction-enterprise/

B. Conceptual Errors Made by the Court of Appeals

The Court makes three fundamental errors. First, it assumes that those who label themselves as investigators really do investigate. Second, it assumes that a general investigation (assuming arguendo that a real investigation occurred) into a scientific field of study that finds there was no fraud in the field exonerates all of those in that field even if any individual’s work was only tangentially involved, if at all. Third, it assumes that those with advanced degrees, by virtue of their possession of advanced degrees, are competent and fair commentators and investigators in an area of much controversy. (See p. 85 of opinion)

Although the Court refers to “eight separate inquiries” (p. 82), in reality it only focused on four. The Court concluded on p. 96 that:

“We come to the same conclusion as in Nader. In the case before us now, not
one but four separate investigations were undertaken by different bodies following
accusations, based on the CRU emails, that Dr. Mann had engaged in deceptive
practices and scientific and academic misconduct. Each investigation unanimously
concluded that there was no misconduct.”

For a more detailed explanation of the four reports, one may go to McKitrick. See https://www.bing.com/search?q=ross+mckitrick+summary+of+climategate+investigations&qs=n&form=QBRE&sp=-1&pq=ross+mckitrick+summary+of+climategate+investigations&sc=0-52&sk=&cvid=DCB9DE01989A4284AA5A0D887E2E1254 I will discuss the the two UEA sponsored endeavors first, then the House of Commons report which evaluated them, and then discuss the NSF report.

1. The House of Commons Report

On January 25, 2011, the House of Commons issued its report regarding the investigations of the Climatic Research Unit of the University of East Anglia. Essentially what it did was to evaluate the Oxburgh and Muir Russell Reports. Inferentially, it also independently, in a small way, evaluated climate science as practiced by the CRU.

With respect to Michael Mann, his name is found three times in the report. See https://publications.parliament.uk/pa/cm201011/cmselect/cmsctech/444/44410.htm His name was mentioned twice in connection with two papers he co-authored, and once in regards to an email that Phil Jones sent him asking Mann to keep matters dealing with multi-proxy studies secret as between two other climate research colleagues. (See para. 71 of Report) Although the ethics of Mr. Jones were being examined, there was no focus on ethics of Michael Mann.

There are numerous scientific and practical issues raised by the report. However, although Mann was mentioned tangentially, there was no focus whatsoever on the individual quality of his work or of Mann’s personal ethics.

The report, in a small way, validates climate science by finding that those working at the UEA were not fraudulently manipulating data and were not unethically manipulating peer review. However, it in no way focused on Mann. Thus, there is no way that it exonerated Mann.

2.. Oxburgh Endeavor (claimed investigation)

The House of Commons Report devoted virtually all of its attention to examining the validity of two investigatory (claimed) reports commissioned by the UEA. The first undertaking was the Science Appraisal Panel of Climatic Research Unit of University of East Anglia report that was issued April 14, 2010. It is Commonly known as Oxburgh [Ronald ]Inquiry. See ftn. 62 of https://en.wikipedia.org/wiki/Climatic_Research_Unit_email_controversy#Science_Assessment_Panel

It is clear beyond any doubt that the did not clear Michael Mann because it did not look at his work. Here are excerpts from the actual report:

“The Panel was set up …to assess the integrity of the research published by the [East Anglia] Climatic Research Unit [Emphasis added] in the light of various external assertions… The essence of the criticism that the Panel was asked to address was that climatic data had been dishonestly selected, manipulated and/or presented to arrive at pre-determined conclusions that were not compatible with a fair interpretation of the original data….”

2. The Panel was not concerned with the question of whether the conclusions of the published research were correct. Rather it was asked to come to a view on the integrity of the Unit’s research and whether as far as could be determined the conclusions represented an honest and scientifically justified interpretation of the data. The Panel worked by examining representative publications by members of the Unit and subsequently by making two visits to the University and interviewing and questioning members of the Unit…. ”

3. The eleven representative publications that the Panel considered in detail are listed in Appendix B. The papers cover a period of more than twenty years and were selected on the advice of the Royal Society. All had been published in international scientific journals and had been through a process of peer review.
CRU agreed that they were a fair sample of the work of the Unit. [Emphasis added]…

Conclusions [of report]

…. We cannot help remarking that it is very surprising that research in an area that depends so heavily on statistical methods has not been carried out in close collaboration with professional statisticians….”

It is absolutely clear that this report had nothing to do with Mann and could not possibly have “exonerated” him. In fact, he was not mentioned in the report, and the 11 publications that were reviewed did not include any in which Mann was listed as a contributor. It is astonishing that Mann and his Attorney would make this argument. See p. 12 of Mann brief of Sept. 3, 2014 and https://cei.org/litigation/michael-e-mann-v-national-review-and-cei-et-al

3. Muir Russell Report

The Muir Russell report, officially, in Great Britain, called the Independent Climate Change E-mails Review (ICCER) commissioned by the UEA was extensively reviewed by the House of Commons. See https://publications.parliament.uk/pa/cm201011/cmselect/cmsctech/444/44410.htm It was a real, although not completely competent investigation, which issued a report that was 96 pages long. (As opposed to the Oxburg report, which was 5 pages) On page 10 in para. no. 6, it stated in its conclusions that:

“The [Climategate] allegations relate to aspects of the behaviour [Emphasis in original] of the CRU (UEA) scientists, such as their handling and release of data, their approach to peer review, and their role in the public presentation of results….”

****
18. On the allegation of withholding station identifiers we find that CRU shouldhave made available an unambiguous list of the stations used in each of the versions of the Climatic Research Unit Land Temperature Record (CRUTEM) at the time of publication.We find that CRU’s responses to reasonable requests for information were unhelpful and defensive.

19. The overall implication of the allegations was to cast doubt on the extent to which CRU’s work in this area could be trusted and should be relied upon and we find no evidence to support that implication.

****

22. On the allegation that the phenomenon of “divergence” may not have been properly taken into account when expressing the uncertainty associated with [proxy] reconstructions, we are satisfied that it is not hidden and that the
subject is openly and extensively discussed in the literature, including CRU papers.

23. On the allegation that the references in a specific e-mail to a ‘trick’ and to ‘hide the decline* in respect of a 1999 W M O report figure show evidence of intent to paint a misleading picture, we find that, given its subsequent iconic significance (not least the use of a similar figure in the IPCC Third Assessment Report), the figure supplied for the WMO Report was misleading. We do not find that it is misleading to curtail reconstructions at some point per se, or to splice data, but we believe that both of these procedures should have been made plain – ideally in the figure but certainly clearly described in either the caption or the text.

As, the above quotations make clear, Michael Mann’s work was not the focus of the investigation, and, although his actions were of moderate importance to some of the actions of the CRU scientists, his work, in and of itself was only tangentially scrutinized. For instance on p. 81, the Muir Russell report stated that Keith Briffa had explained:

“WA2007 had then shown that the results of MBH98 could be replicated very closely using their implementation of the M B H 9 8 methods and using the same data.”

However, that statement was diminished in importance by the statement that:

“Briffa and his colleague Osborn commented that in any case the MBH98 was only one of 12 such reconstructions in figure 6.10 in Chapter 6, and does not therefore dominate the picture.” (p. 81 Muir Russell Report)

It is worth noting that although skeptics were allowed to make submissions, Muir Russell relied on Keith Briffa (of the CRU and the lead author) and John Mitchell (a review editor for Chapter 6) to evaluate the validity of paleoclimate work in AR4 and that since it was their ultimate product that was being evaluated, they are not neutral, objective observers.

Thus, any claim that Muir Russell exonerated Mann is clearly false. In one, very important, aspect, the Report, even considering its limited scope, was very deficient; it failed to ask Phil Jones whether he deleted emails after Jones received a FOIA request. See https://climateaudit.org/2012/02/06/acton-tricks-the-ico/ (The particular email that raised this issue is discussed in the next section)

4. Penn State Endeavor — Alleged Research Investigation

Because the Penn State endeavor was superficial and did not interview critics of Mann, it does not deserve to be called an “investigation.” Instead, I am calling it an endeavor. In the Sixth Edition of Black’s Law Dictionary, the word “investigate” is defined as:

“To trace or track; to search into with care and accuracy; to find out by careful inquisition; examination; …”

Under Black’s definition, and general usage, what Penn State did was not an investigation. It did not interview people who had problems with Mann’s work. It is as if there was an accusation of theft, and the police went only to the accused thief and asked him if stole anything, and the accused said no. For there to be a true investigation, people from both sides of the controversy have to be questioned and interviewed. There was an initial report published on Feb. 3, 2010 (See https://www.bing.com/search?q=ross+mckitrick+summary+of+climategate+investigations&qs=n&form=QBRE&sp=-1&pq=ross+mckitrick+summary+of+climategate+investigations&sc=0-52&sk=&cvid=DCB9DE01989A4284AA5A0D887E2E1254) and a later report filed on June 4, 2010. (See https://www.bing.com/search?q=ross+mckitrick+summary+of+climategate+investigations&qs=n&form=QBRE&sp=-1&pq=ross+mckitrick+summary+of+climategate+investigations&sc=0-52&sk=&cvid=DCB9DE01989A4284AA5A0D887E2E1254) About 85% of the Feb. 3, 2010 report was subsumed into the June 4, 2010 report, so this commentary will be focused on the June report.  See this link to final report.  http://www.psu.edu/ur/2014/fromlive/Final_Investigation_Report.pdf

For example, Stephen McIntyre, a skilled mathematician**** and author of peer reviewed articles (See Muir Russell Report p. 57) has stated that “Falsification concerns about Mann’s research included:

“Mann’s undisclosed use in a 1998 paper (“MBH98”)4 of an algorithm which mined data for hockey-stick shaped series. The algorithm was so powerful that it could produce hockey-stick shaped “reconstructions” from auto-correlated red noise. Mann’s failure to disclose the algorithm continued even in a 2004
corrigendum.”

Mann’s misleading claims about the “robustness” of his reconstruction to the presence/absence of tree ring chronologies, including failing to fully disclose calculations excluding questionable data from strip bark bristlecone pine trees.”
….
Mann’s deletion of the late 20th century portion of the Briffa temperature reconstruction in Figure 2.21 in the IPCC Third Assessment Report (2001) to conceal its sharp decline, in apparent response to concerns that showing the
data would “dilute the message” and give “fodder to the skeptics.”

Mann’s insistence in 2004 that “no researchers in this field have ever, to our knowledge, ‘grafted the thermometer record onto’” any reconstruction. But it was later revealed that in one figure for the cover of the 1999 World Meteorological Organization (WMO) annual report, the temperature record had not only been grafted onto the various reconstructions-and in the case of the Briffa reconstruction, had been substituted for the actual proxy data.”

(See pp 3 & 4 from McIntyre’s amicus brief https://cei.org/litigation/michael-e-mann-v-national-review-and-cei-et-al)

For the present purposes, putting aside whose version of the matters alluded to by McIntyre is correct, at the very least Penn State should have questioned both Mann and McIntyre closely about the matters discussed above. It failed to do so. Thus, Clive Crook’s criticism is spot on:

“The Penn State inquiry exonerating Michael Mann — the paleoclimatologist who came up with “the hockey stick” — would be difficult to parody. Three of four allegations are dismissed out of hand at the outset: the inquiry announces that, for “lack of credible evidence”, it will not even investigate them. … Moving on, the report then says, in effect, that Mann is a distinguished scholar, a successful raiser of research funding, a man admired by his peers — so any allegation of academic impropriety must be false.” See https://www.theatlantic.com/politics/archive/2010/07/climategate-and-the-big-green-lie/59709/

One very important issue that was to be determined by the PSU endeavor was:

“Did you engage in, or participate in, directly or indirectly, any actions with the intent to delete, conceal or otherwise destroy emails, information and/or data, related to AR4, as suggested by Phil Jones?” (See https://climateaudit.org/2011/02/23/new-light-on-delete-any-emails/)

This issue was described in detail and put in context, by Stephen McIntyre at Climate Audit. What happened on May 29, 2008 was:

“[Phil] Jones then notoriously asked Mann to delete his emails, asking Mann to forward the request to [Gene] Wahl, saying that Briffa and Ammann would do likewise:

‘Mike,
Can you delete any emails you may have had with Keith [Briffa] re AR4? Keith will do likewise… Can you also email Gene [Wahl] and get him to do the same? I don’t have his new email address. We will be getting Caspar [Ammann] to do likewise.
Cheers, Phil’

Mann replied the same day as follows:

‘ Hi Phil,
… I’ll contact Gene [Wahl] about this ASAP. His new email is: generwahl@xxx
talk to you later,
mike’

That Mann lived up to his promise to Jones to contact Wahl about deleting the emails seems certain. In early 2011, from the report of the NOAA OIG, we learned that Wahl (by this time, a NOAA employee), told the NOAA IG that “he believes that he deleted the referenced emails at the time.” See https://climateaudit.org/2011/09/02/nsf-on-jones-email-destruction-enterprise/

It is clear that, at the very least, being charitable to Mann, he indirectly engaged in : “actions with the intent to delete, conceal or otherwise destroy emails, information and/or data, related to AR4, as suggested by Phil Jones” Yet the alleged PSU investigation totally botched this simple, very important issue.

5. National Science Foundation Closeout Memorandum

On page 90 of its opinion, the Court of Appeals referred a National Science Foundation (NSF) report which did investigate Mann and in which its investigators talked to Stephen McIntyre, but did not reference his comments or the questions that were asked. The report was barely over four pages long and was unsigned and not dated. See bottom of page here: https://www.desmogblog.com/national-science-foundation-vindicates-michael-mann There was no indication whatsoever as to who wrote the memo or who performed the tasks that were identified in the memo. Moreover, neither Penn State nor Michael Mann were specifically named in the report. In over 30 years of practicing law, I have never seen such a weird document.

The memo was dense and filled with “bureaucratic speak” which tends to distract attention from those matters that are pertinent to the opinion of the Court of Appeals. It is difficult to improve on Steve McIntyre’s summary of the report from his Amicus brief (See https://cei.org/litigation/michael-e-mann-v-national-review-and-cei-et-al), so I will borrow heavily from him. The relevant portions of his summary were that:

“The National Science Foundation (“NSF”) spoke to some of Mann’s critics (including … [Stephen] Mclntyre), but the report did not name them or discuss any of the falsification concerns.

* Nor was the NSF investigation “broadened” to the extent portrayed by the division. Its investigation was limited to misconduct as defined in the NSF Research Misconduct Policy, which concerns only “fabrication, falsification,
and plagiarism . . . in research funded by NSF,” It stated that Mann “did not directly receive NSF research funding as a Principal Investigator until late 2001 or 2002.” Because the MBH98 and Figure 2.21 falsification allegations pre-dated 2001, the NSF had no jurisdiction over these allegations.

* There is no evidence that the NSF “broadened” its investigation to consider claims regarding Mann’s unprofessional conduct under Policy AD47 (over which it had no jurisdiction).

* Finally, the NSF (like Penn State) never investigated Mann’s role in getting Wahl to delete the most sensitive email correspondence. ” (See p.10 of brief.)

There are three basic points to be made about the NSF memo. First, the memo does not investigate much of Mann’s work, and so it could not exonerate him from charges concerning the validity of the whole body of his work. Second, it did not investigate whether Mann assisted, or encouraged Eugene Wahl to delete emails, which is an extremely important issue touching on his professionalism and compliance with the law. Third, the memo is completely unsubstantiated; it is not clear who wrote the memo or did the underlying work. Without being familiar with the genesis and the manner in which the memo was written, there is no way to assess its credibility or the accuracy of its findings.

6. Climategate Emails

On p. 84 of its opinion, the Court referred to 1075 CRU emails and claimed that investigations of these emails contributed to the exoneration of Mann. (The Muir Russell Report on p. 26 referred to 1073 emails)

This reliance on investigations of the emails is misplaced for a number of reasons. First the emails examined were less than .3% of the CRU’s emails. (See p. 26 of Muir Russell Report) From 1998 on, there would be many more emails written by Mann at the institutions where he worked that were not sent to the UEA, and none of these were included in the 1075 emails discussed by the Court. Second, the Muir Russell Report report found that out of the 1073 emails only 140 involved Mann. (Muir Russell Report p. 26). Third, the one report that explained its procedures in detail and did appear to take a substantial look at the emails, the Muir Russell Report, was only examining the emails to determine how they reflected on the CRU; there was no attempt to focus specifically on Mann’s culpability or innocence.

7. Legal Sleights of Hand

Since this post is focused mostly on whether, as a factual matter, Mann was exonerated by the investigations identified by the Court, it is designed to mostly avoid legal issues and standards. However, there are several instances of legal misdirections that are closely tied to the exoneration issue. I would like to highlight them.

First, the Court stated: “Dr. Mann also submitted extensive documentation from eight separate inquiries that either found no evidence supporting allegations that he engaged in fraud or misconduct or concluded that the methodology used to generate the data that resulted in the hockey stick graph is valid and that the data were not fabricated or wrongly manipulated.” (See p. 82)  The phrase beginning with “or concluded” has the effect of shifting the focus from the actions of Mann to climate science in general. This shift is improper in this case because it is the actions of Michael Mann that are at issue in the defamation case, not the validity or invalidity of “mainstream” climate science. For instance, mainstream climate science could be valid, but Mann, as an individual, could be misapplying it.

Second, the Court stated: “We set aside the reports and articles that deal with the validity of the hockey stick graph representation of global warming and its underlying scientific methodology. The University of East Anglia, the U.S. Environmental Protection Agency, and the U.S. Department of Commerce issued reports that concluded that the CRU emails did not compromise the validity of the science underlying the hockey stick graph.” (See p. 83). This makes no sense at all because one of the main criticisms of Mann was that he, in some circumstances, was complicit in the publication of graphs that hid the splicing of tree ring proxies with instrumental temperatures. As previously noted p. 13 of the Muir Russell Report stated:

“On the allegation that the references in a specific e-mail to a ‘trick’ and to ‘hide the decline* in respect of a 1999 WMO report figure show evidence of intent to paint a misleading picture, we find that, given its subsequent iconic significance (not least the use of a similar figure in the IPCC Third Assessment Report), the figure supplied for the WMO Report was misleading.”

Third, on p. 83 of its opinion, the Court stated that the alleged false statements that formed a legitimate basis for Mann’s defamation suit were: “that Dr. Mann engaged in “dishonesty,” “fraud,” and “misconduct.” The undisclosed splicing of two different data sets can certainly be criticized as being “dishonest” or as evidence of “misconduct.” By putting aside evidence that Mann was involved in undisclosed splicing, the Court is unfairly penalizing the defendants, for potentially, pointing out, at the very least, objectionable behavior by Mann.

Fourth, on p. 84, the Court stated four institutions: “conducted investigations and issued reports that concluded that the scientists’ correspondence in the 1,075 CRU emails that were reviewed did not reveal research or scientific misconduct. Appellants do not counter any of these reports with other investigations into the CRU emails that reach a contrary conclusion about Dr. Mann’s integrity.”

As this post makes clear, there is no evidence that any of the four investigations thoroughly examined Mann. Thus, the Court should not rely on those investigations. Additionally, even if there were thorough investigations, they do not have to be rebutted by other institutional investigations. For instance, if McIntyre’s criticisms, set forth in Sec. 4 of this post are true, it does not matter what the reports referenced by the Court stated.

Conclusion

A true exoneration of someone accused of misconduct would involve transparent, thorough exchanges between the supporters and opponents of the accused. Then, at the conclusion of that process, there would be clear, verifiable proof that the charges were incorrect. That did not occur with respect to Mr. Mann.

The recent mistakes made in the investigation of Larry Nassar, a Michigan State and USA Gymnastics physician, illustrate the problems in relying on one-sided and superficial reports. Michigan State began receiving reports of sexual abuse in 1997, and it was not until 2016 that the reports were finally given credence. Patrick Fitzgerald, a nationally known Federal Prosecutor was hired to investigate the claims of sexual abuse in 2014. Later, in 2017, he was asked about his work and Fitzgerald stated:

“This law firm and another were retained by MSU, in part, “to review the underlying facts and disclose any evidence that others knowingly assisted or concealed” Nassar’s criminal conduct.

“Had we found such conduct, we would have reported such evidence to law enforcement promptly. And much as there is no ‘investigative report,’ there is no document that constitutes ‘Fitzgerald findings.’ ”
http://www.detroitnews.com/story/news/local/michigan/2017/12/08/msu-larry-nassar-investigation/108437686/

In light of the numerous cases of sexual abuse that came to light, it is clear that Fitzgerald, notwithstanding, his, to that point, sterling national reputation, had done a poor job in his work for Michigan State. In much the same way, even though there are a number of reports that purport to exonerate Mann, a reasonably close look at the reports reveals that they are superficial and couldn’t possibly exonerate Mann from charges of misconduct. Further, some of the investigations that Mann claimed exonerated him did not even focus on his work.

JD Ohio

END OF POST


Explanatory Notes

1. Popehat also criticized the exoneration portion of the Court’s opinion. See https://www.popehat.com/2017/01/04/dc-appellate-court-hands-michael-mann-a-partial-victory-on-climate-change-libel-case/

2. I actually have the PSU reports, but I can’t find a working link. If someone has a link to their reports, it will help. In the post, I linked to McKitrick’s article on the Climategate investigations, which gives a good summary.

3. I am busy now, so I may be slow in responding to comments.

***As to the reports actually relied upon by the Court, it is confusing. There is one reference to an EPA report in passing, but it is never discussed in detail. There are detailed discussions of the House of Commons Report (roughly 85% of it discussed the Muir Russell Report and the Oxburgh Report) Even more confusing, is that the Court never specifically discussed the Oxburgh Report. In any event, for my purposes, I will consider the the four reports referenced by the Court requiring some substantive discussion to be, the Muir Russell Report, the Oxburg Report, the Penn State Reports (two different reports were made to Penn State)

***** McIntyre was number 1 in Canada’s High School Math Competition in 1965.  While in college, in 3 out of 4 years, he was No. 2 in his class in mathematics.


 

* About me:  I have practiced for over 30 years and am currently licensed in Ohio.  I have had roughly 150 jury trials (workers compensation) and 35 appellate arguments.  (My number of actual civil jury trials, is far, far greater than that of an average attorney — probably in the top 1% in Ohio) My trial work was done during my first 17 years of workers’ compensation practice.  Since then I have primarily practiced real estate law although I also did about 2 years of consumer law.  

Additional point.  85% of my post is non-legal tedious wading through a morass of half-truths.  A smart and (very) patient intelligent person could probably do it.  I, as an attorney, have the advantage of knowing when a court is being legally “slick.”, instead of 100% straightforward in its analysis of the case.


Note: WUWT has full knowledge of this person’s identity, but by request, allowed “JD Ohio” to post under his Internet handle due to potential interference with his clients. – Anthony

 

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106 thoughts on “Analysis of Court of Appeals’ Defamation Opinion Holding That Climategate Inquiries Exonerated Michael Mann

  1. Anthony/mods

    Please delete the long segment of self-plagiarism at the start of the OP. It would be a shame if such a well-written and valuable contribution to the debate were dismissed on a novel variant of the Wegman Excuse.

  2. “Conclusion:

    In much the same way, even though there are a number of reports that purport to exonerate Mann, a reasonably close look at the reports reveals that they are superficial and couldn’t possibly exonerate Mann from charges of misconduct. Further, some of the investigations that Mann claimed exonerated him did not even focus on his work.”

    Yup.

    Mann-made global warming…

    “Piltdown” Mann…

    etc.

    • ALLAN

      Please can you explain to me the obsession with Michael Mann.

      As far as I can see he colluded with some other scientists to produce a hockey stick graph that has now been deleted, or at least, not referred to since it’s inclusion in early IPCC reports.

      Now, I get the fact that there is a dispute about the geographical influence of the MWP. Was it local to the NH or was it widespread?

      TBH, who the fcuk cares. The simple fact is that there is considerable scientific, and artistic evidence from the period, demonstrating that mankind didn’t merely exist in a warmer climate, it flourished despite the lack of today’s technology.

      I think I have been following climate change for around five years or so, as a layman, as you are aware. I have yet to speak to another layman, alarmist or sceptic who even knows who Michael Mann is never mind his hockey stick. They care far less if he’s convicted in court for fraud or stripped of his professional qualifications which, in my opinion, will never happen.

      Which might not seem important to the scientific community who all have an axe to grind one way or the other but let me make a suggestion I suspect you’ll appreciate.

      Probably less that 10% of the democratic western world are professionals i.e. scientists, engineers etc. which leaves the other 90% pretty well ignorant of what’s going on, other than almost all knowing of AL Gore and his movies and books.

      Now, there is the common nous of the man (or his advisor’s). He easily figured out 90% of the western population don’t have a clue about climate change, but they all have a single vote each, just like every informed, or misled scientist, but the public outnumbers them 10/1.

      Easy meat really. Does Gore try to convince the intelligent, informed, educated 10% of scientists? Of course not, they only represent 10% of votes.

      He targets the real easy meat; the 90% of gullible, unwitting, uninformed public; with emotional, fact free, amateur dramatics and seizes the popular vote. All 90% of it.

      And whilst sceptics probably represented the majority of the 10% of experts, journalists, social scientists and attention seeking celebrities were rolled out, many with the first opportunity in their life for fame.

      Yet scientists seem to reason that convincing celebrity peers like Mann will stop the CAGW bandwagon, when you and I know full well that if all scientists agreed, it would be a consensus, impossible in science as far as this simpleton (me) is concerned.

      Sadly, the law of averages dictates that convincing 1% of an audience of 100 is just as effective as convincing 100% of an audience of 10. Except that when an audience of 10 is convinced, there’s no one else to convince, but there is still an audience of 99 ready and willing to be convinced by an opponent.

      Gore made this entire subject political quite deliberately because the audience grew x 9 with little or no effort.

      If sceptics want to really make an impact, someone needs to recognise that the science just won’t cut it. There are too many stupid people in the world like me who can be convinced by a slick presentation from Al Gore; or a slick sceptic for that matter.

      • There is an ongoing Gallup poll that asks: “What do you think is the most important problem facing the country today?” link

        There is no category for climate change or global warming. The closest category is Environment/Pollution. In November, 2% of people thought Environment/Pollution was the nation’s most important problem.

        The most important problems were:
        Immigration/Illegal aliens 21%
        Dissatisfaction with government/Poor leadership 18%
        Healthcare 11%
        Unifying the country 9%
        Race relations/Racism 9%

        As you point out, most people couldn’t give a rat’s derriere about climate change and are completely unaware of Dr. Michel Mann.

        • CBob –Climate issues are not in the public consciousness: — The problem is that many think that both the science and the economics are settled. Thus, California has passed a ludicrous law saying that its electrical energy will be 100% non-fossil fuels by 2045.

          Anyone remotely familiar with climate science knows how biased and unreliable it is. The Left tries to spread the idea that because the tendency of CO2 to cause warming is known, that it is a foregone conclusion that the use of fossil fuels have to be substantially reduced. I was at a legal seminar dealing with ethics approximately 10 months ago, and some of the speakers strongly implied that reducing fossil fuels was an ethical issue.

          • Thus, California has passed a ludicrous law saying that its electrical energy will be 100% non-fossil fuels by 2045

            which wouldn’t be so ludicrous if they would seriously engage with nuclear, but just as they want 100% non-fossil fuels they want 0% nuclear. It can’t be both and keep the lights/heat/AC on.

        • @HotScot,
          I, for one, care very much and hope to see the abominable Mann get his comeuppance before I kick the bucket! It’s more than a matter of principle and justice. His defamation suit against the writer Mark Steyn has been ongoing for the past 6 years, nearly ruining the latter in the process. Google it for details. Meanwhile, this will give you some idea of what the hockey stick was about – https://www.youtube.com/watch?v=WMqc7PCJ-nc

          Also, as an expat, my impression is that the Brits (and other Europeans) are generally more concerned than their transatlantic cousins about the impact of “global warming” – in the UK largely because of the propaganda regularly spewed by the BBC.

          • I’m afraid it’s the same for the CBC in Canada, which has so indoctrinated my wife that she gets immediately upset if I question any claims made in a program. And our federal government is pushing the same worries.

      • Dr. Mann’s current importance rests on the fact that he is suing his critics for defamation. If alarmists can block all criticism by legal threats, the ‘chilling effect’ on real science should be evident.

  3. “…Moving on, the report then says, in effect, that Mann is a distinguished scholar, a successful raiser of research funding, a man admired by his peers …”

    A “successful raiser of research funding” … the real reason to defend and justify anything.

    • This is the very reason why Penn state did the whitewash “inquiry” where Mann wrote the questions he would be asked. He was a major revenue source for the university. The last thing they wanted to do was to kill the goose that laid their golden eggs.

      Similarly, the Oxburgh report was commissioned by the UEA, not to objectively investigate but as a public relations exercise to exonerate and uphold the standing of the university. Oxbergh himself was an ex-college of those under “investigation” and a previous member of the very same Climate Research Unit.

      There could not be a more flagrant conflict of interest in both those commissioning the “enquiries” and those supposedly conducting them.

      • It’s basically the same reason Sandusky got a whitewash from Penn State. They didn’t want anything to happen to their golden gooses.

    • So true.

      Research funding is so sacrosanct in academia that if a faculty member acquires enough of it, he or she can get away almost unscathed when publishing politically incorrect findings. As opposed to the hell they would be put through for publicly being politically incorrect without bringing big bucks to the institution.

    • And never forget that Penn State has a track record of covering up embarrassing behavior by its employees if telling the truth will hurt their bottom line, i.e. the sexual abuse of young men involved in the highly lucrative football program….

      Mann has aggressively attacked anyone who dared to challenge his work, using the legal system to try and prevent investigation into his research. His refusal to comply with disclosure has caused these cases to drag on for years. This is not how scientists are supposed to act.

  4. It is as if there was an accusation of theft, and the police went only to the accused thief and asked him if stole anything, and the accused said no.

    No, it’s worse than that. It is like the police asked the suspected thief to write the questions which would be put to him during the “investigation”.

    Mann himself decided what he would be asked. It was whitewash. Run by the university which was the party with the most to loose if it did find any malfeasance. This can be compared to the way the same Penn state U. covered up for coach Sandusky, for years.

  5. NSF closeout memorandum

    This inquiry only covered the period in which NSF funding was involved. The NSF funding for mhb98 was prior to the NSF funding , so his first couple of hockey sticks were not even covered by the inquiry.

    Note – the inquiry was pursuant to the NSF guidelines/manual (my apologies for not having access to the correct NSF manual as I write this.)

    • Joe: Are you saying that NSF Memos are typically unsigned and undated and don’t mention the subject of the investigation?

  6. Mann truncated the embarrassing Briffa proxy to hide the decline. He did this at a point where several lines crossed and the visual assumption is that the Briffa line continues so closely with the others but is “hidden” behind them, when in fact it pluges in the other direction.

    That was NOT an accident. It was a willful misrepresentation: a slight of hand, hence Jones’ reference to “Mike’s Nature TRICK”. It was a trick in the sense of it being a deception, not a clever, legitimate solution to a technical problem.

    Jones went much deep than Mann when produced the graphic for the cover of the year 2000 WMO report , which was later adopted for AR3. He grafted two different data sources ( proxy and themometer records ) together and used the same line and colour on the graph without the slightest indication that they were two different records.
    I
    That was blatant, uncontestable scientific fraud.
    I

      • That is mature sentiment I should have expressed the other day, instead of going off in a childish manner. I detest liars and from all I’ve read, I consider him just that.

  7. “2. Oxburgh Report (formally known as the “Science Appraisal Panel of Climatic Research Unit of University of East Anglia): This report was reviewed by the House of Commons report. It didn’t even mention Mann or any of his publications.

    That Oxburgh saw no need even to mention Mann’s work in his investigation is as resounding a vindication of its soundness as Professor Mann could have hoped for.

    That such evidence still fails to satisfy soi-disant skeptics is sadly par for the course.

    A reasonable person like Mark Steyn must, on the other hand, have been moved profoundly by Oxburgh’s failure to report the slightest peccadillo on Mann’s part.

    From this point on, Mr Steyn—who is renowned for his healthy lack of skepticism regarding the considered conclusions of expert committees of all kinds—must have had all the mental elements (id est of knowledge of Dr Mann’s proven integrity) necessary to cast his own campaign of ridicule and slander in the unambiguous light of malice. Inferentially, Mr Steyn knew (and a fortiori believed) Dr Mann’s probity to be a matter of fact even as he premeditated the denial thereof inherent in his published phrase, “fraudulent Hockey Stick graph.”

    This reasoning can incidentally be generalised as follows. It is common knowledge in the soi-disant climate skeptosphere that Lord Oxburgh’s Science Appraisal Panel found it unnecessary to appraise any aspect of the science whatsoever, as His Lordship stated so categorically and clearly to Mr Stephen McIntyre, a major authority within the online community of science skeptics and detractors of mainstream statistics:

    “[T]he science was not the object of our study.”

    It follows syllogistically, then, that Lord Oxburgh’s learned panel found no fault whatsoever in the science science in sensu lato.

    Familiarity with this quote, which is all but pandemic in the ‘skeptical’ community, therefore devolves upon the honest community member a duty to acknowledge the prima facie unimpeached integrity of ‘the science,’ which we take to mean the sum of the areas of research pursued by the UEA CRU in the ~13 years up to and including 2009.

    The above consideration alone suffices to suggest mens rea in all ‘skeptical’ discourse that
    1. tends to the denigration of ‘the science,’ understood as above
    2. persists in the face of contrary judgments by persons known to be more credible judges than themselves in such matters, notably but not limited to Lord Ronald Oxburgh (a distinguished geologist later ennobled in recognition of signal contribution to the field of feudal wealth accumulation through wind-farm rent)

    The court directs the jury to find ‘skepticism’ guilty on the first four counts and not guilty of the lesser (fifth and sixth) charges of beef disparagement and grey- or grayhound substitution, respectively.

    • Brad Keyes: You had me going, believin’ you were gonna say the Court, somewhere in 111 pages, had made a valid point. Full disclosure- I cannot bring myself to read the full decision. The quotes I have read are enough. It is obvious from JD’s work above, and articles he cites, that the Court accepted that the reports “exonerated” Mann without reading the reports to confirm this. I’ll be damn sure not to get a parking ticket in DC, to avoid appearing before this clown bench.
      The SLAPP procedure was actually used to help Plaintiff survive by submitting evidence beyond the pleadings. IMHO the case should still have been dismissed easily, it’s political speech on a public figure. Steyn et al are entitled to make fun of a figure who claims that his research requires us to change how we choose to live, to travel, to tax, etc. Read a few NYT editorials by, say, Charles Blow, to get an idea how rabid political speech is allowed to be. If NYT or WaPo were the defendant, the DC Court would see the “political comment” override all this blather about reports exonerating Mann. To those who argue that Mann was defamed “as a scientist”, how can a scientist be defamed “as a scientist”- by non-scientist political writers?

    • BK: “That Oxburgh saw no need even to mention Mann’s work in his investigation is as resounding a vindication of its soundness as Professor Mann could have hoped for.”

      This is a supremely uninformed statement. Oxburgh specifically stated that it wasn’t evaluating the soundness of the science; it was only evaluating the integrity of the CRU. Research can be honestly done but wrong. Specifically, Oxburgh stated:

      “The Panel was not concerned with the question of whether the conclusions of
      the published research were correct. Rather it was asked to come to a view on
      the integrity of the Unit’s research…”

      Also, a field of study (for instance, quantum mechanics) can be 100% legitimate, but that doesn’t mean that all professors in the field of quantum mechanics are honest or capable.

      So, 1. Oxburgh had nothing to do with the soundness of climate science. 2. It had absolutely nothing to do with Mann or questions about his capabilities or integrity.

      Your statement is completely wrong.

      • JD Ohio

        > Your statement is completely wrong.

        Just the one? LOL. I wasn’t actually going for “completely wrong,” but for “audaciously illogical,” so I’ll clearly have to polish that joke a bit more. I also realize I should have put the sarcasm indicator at the start, not the end, now that I see how much space intervenes vertically.

        Ambitiously-layered, thought-provoking satire aside, I must say I find all such distinctions as Oxburgh pleads between “investigating their integrity” and “investigating the [sic] science” to be less satisfactory the more one thinks about them, until at the five-second mark they deliquesce in a fizzing puddle of asemy. That’s probably because I’m trained to understand that science is [a code of] behaviour and that the phrase “the science,” to the extent it means anything, cannot sensibly be used in a discussion that bypasses ethics, nor vice versa.

        It also boggles the mind that Oxburgh should feel the need to emphasize, or even mention, his inability to decide the “correctness” of the CRU’s conclusions—a power no scientist, in or outside the CRU, has ever boasted. Could anyone actually have *expected* such knowledge to arise de novo from a political re-reading of scientific studies that yielded provisional answers, at best, if they were lucky? This kind of bizarro epistemology almost *HAS* to be understood, I think, as theatre for the improvement of a scientifically-illiterate public.

        Great article, by the way, as I mentioned downthread.

    • Indeed, not bothering to look into something means it is settled and above reproach.
      This is especially true when facts are carefully covered up and evidence is tampered with.
      That tactic has been used by the Catholic Church for decades with great success.

      • Bullseye hunter—That’s exactly the bizarro logic I was trying to parody—operative word being “trying.” 🙂 Will have to take a fresh run at it froma different angle later, see if I can’t make it work. I’ve yet to come across anything that’s Beyond Parody if you try hard enough, and if I ever do, it’ll be personal defeat. I’ll probably go off-grid and devote the rest of my years to finishing that damn biography of St Chrysostom that seems to resist me at every turn..

    • That Oxburgh saw no need even to mention Mann’s work in his investigation is as resounding a vindication of its soundness as Professor Mann could have hoped for.

      War & Peace never mentions Mr. Mann, either. Do you claim that “exonerates” him? (And don’t try to tell me one was supposed to be fiction, can you point to any verifiable fact that can prove either missive is non-fiction?) Thus, the rest of your bloviation I skipped over.

      • War & Peace *was* about climate change (or so I’m told—as an ethical consumer I can’t consume books as voraciously as I might like).

        So you’re right: it does exonerate Mann, but I somehow doubt this new revelation will succeed in convincing the “skeptics” whov’e ignored so many hundreds of of exonerations already.

        Their favorite response, which you quite perceptively anticipate, is to find one typo in Tolstoy’s epic encyclopedia of Slavic suffering, which they use to vocally state, “Aha! The whole book is fiction!”

        Good luck explaining to them that they’ve got the burden of truth backwards, and that “one verifiable fact” can “prove” a “missive is non-fiction.”

        • Not sure about War and Peace but The Da Vinci Code is about global warming.

          The Holy Grail(global warming) is not a cup(CO2 molecule looks like a chalice), but a woman(Mother Nature).

          “So Dark the Con of Mann”

  8. JD Ohio,
    Thank you for the clear and concise analysis of the Court of Appeals’ opinion. I understand why courts tend to mostly stay away from cases involving detailed scientific issues. It appears that in this case the technical aspects, though not directly associated, added sufficient confusion to distract the Court from the actual details. In other word, I would expect this case was just beyond the capabilities of the justices hearing it.

    • “In other word[s], I would expect this case was just beyond the capabilities of the justices hearing it.” I believe your point is well-taken. I also believe there is a possibility (speculation on my part because I know virtually nothing about these judges) that the Court either consciously or unconsciously wants to believe Mann. However, Mann is a mainstream liberal and DC is a very liberal place and one would expect it to have liberal judges.

  9. In many facets of criminal law enforcement attempting to prosecute conspiratorial organizations, they must turn to insiders. The reason? Without an insider’s evidence or testimony to conversations (knowing where the skeletons are hidden so to speak), intent becomes almost impossible to establish. One would have to be a fool to put “intent” in a written form, that is Intent only becomes exposed at closed-door face-to-face meetings. Thus law enforcement in prosecutions frequently use insiders who were present at meetings, or who wore “wires” to record the conversations.

    Putting that in terms of the Hockey Team, until insiders willing to be put under oath on depositions, or in the government context, “WhistleBlowers” protected by statutes, manipulations and errors in data or analyses can simply be dismissed as unintentional. (no intent to deceive)

    Thus the Climate Deception (of intentionally manipulated climate and proxy data) will continue until some insider has had enough of the lies and is of strong enough character to bring forward hard evidence of what has been happening.

  10. I wish the post would have a concise background section for those of us who haven’t committed the case and its path through the courts to our working memory.

  11. JD Ohio,

    one criticism that can be made of your excellent argument is that your treatment of Phil Jones’ “hiding the decline” has the effect of praising by faint damnation.

    Jones’ WMO graph constituted a less ambiguous, and more serious, violation of scientific ethics than you seem to appreciate.

    Forgive me for saying this but you appear to start “overthinking” it the minute you accede to the premise that any of Jones’ rationalizations for chopping ‘n’ changing the graph have prima facie, or even potential, merit.

    Rather than allow yourself to be led through a warren of weasel-holes by a pseudoscientist way above your pay-grade (which is a compliment to you, if that wasn’t clear), I recommend a simpler approach.

    It would take you years to get your mind around the deformed epistemology of climate pseudoscience. Luckily, for the present purposes at least, the rules of forensic epistemology—in which you’re already fluent—work as a very good proxy for the rules of scientific epistemology.

    To achieve a truer sense of how offensive Hide The Decline is, all you have to do is suppose an attorney or police officer had presented as evidence the graph Jones presented, mutatis mutandis.

    Once you think of the graph as an item of evidence such as a crime scene or a victim’s sketch of a suspect, it should be immediately obvious that you’re NOT ALLOWED to tamper with it or rearrange it or ‘beautify’ it just because you’re privileged to have special access to The Truth and you’re trying to massage said evidence into a better approximation of what You Know to be The Case.

    Imagine how insulted you’d feel, as a lawyer, if a colleague unapologetically explained that the victim’s sketch didn’t do a good job of capturing the Bad Guy’s lack of facial hair, so of course the Assistant District Attorney erased the goatee To Hide The Goatee. Naturally! It would be dishonest NOT to! If you’ve caught the guy and you know the identikit was misleading, OF COURSE you clean it up before presenting it to the jury!

    That’s how insulted scientists feel when Phil Jones does exactly the same thing: sacrifices The Evidence for The Revealed Truth. As Professor Richard Mueller—even Professor Richard Mueller, who’s hardly a paragon of Feynmanian honesty himself—yells, “you’re not allowed to do that in science!”

    When Mueller says it’s not up to his standards, it’s not up to ANY scientist’s standards.

  12. Over at skeptical Science (the antiscience blog).
    Everyone of the commentators, moderators and hosts believe all inquiries exonerated Mann.

    Makes you wonder how the activists lack the analytical skills to recognize superficial inquiries, yet somehow possess the superior intellectual capacity to ascertain the validity of the climate science.

    • If they had the analytical skills they probably wouldn’t be toeing the line preached at Skeptical Science. They’d have figured out that site first or second visit.

    • Joe: “Makes you wonder how the activists lack the analytical skills to recognize superficial inquiries, yet somehow possess the superior intellectual capacity to ascertain the validity of the climate science.”

      Unfortunately, doesn’t make me wonder much. A great deal of it is plain dishonesty, such as Obama this week claiming credit for increased Natural Gas production, when the federal government under him reduced the number of natural gas leases on federal lands by about 50%.

  13. I am posting the same article here to give my post wider circulation and in the hope that someone on the DC Court of Appeals will see it.

    A welcome post. But it may not be immediately clear to most readers here, never mind the DC Court of Appeals, as why they might think it important.

    • The point is that the 3 judges of Court of Appeals are probably responsible for something like 400 cases per year. They probably have 1-3 law clerks to help them. I have followed climate matters closely for about 10 years. It took me about 100 hours to sort out all of the misrepresentations and half-truths. The judges of the Court of Appeals know much less about this I do. They don’t have the time to really understand what happened on their own. There is some chance that someone may come across my post and that it may have some influence.

      On my end, I was offended that such a wrong conclusion (that Mann was “exonerated” by credible investigations directed at him) was a substantial basis for the Court’s decision.

  14. Around 1960, tree proxies which seemed to be accurate indicators of rising and falling temperatures began showing declines (less growth and density), when the instrumental records were showing rising temperatures. There seems to be no doubt that a number of tree proxies were simply inaccurate after 1960.“.
    However, if you are going to attempt to have 1,000 year or 1,400 year temperature reconstructions, just a little bit of thought will make it clear that the tree ring proxies have to be dropped after 1960.“.

    Sorry, but that’s plain wrong. If the tree proxies are inaccurate after 1960, the first thing to do is to drop them completely. And the article goes on to explain why:

    The problem with tree proxies raises a huge issue. If they aren’t accurate now, how do we know that they were accurate four or eight hundred years ago? The answer is that we don’t know.

    • You are approaching this from a scientific and not a legal perspective. For Mann to have a valid case, he was required to prove actual malice. (a very subtle concept that also involves recklessness) Whether the use of trees as proxies was debatable or just plain wrong matters little from a legal perspective; in either case, Steyn is entitled to vigorously attack the work of Mann.

      • JD Ohio
        it’s quite possible Mike Jonas and I are making the same error here—of thinking scientifically rather than legally—but since I’m not a lawyer (is Mike?) and therefore couldn’t really think like one even if I understood why I had to (i don’t) when discussing your excellent article, I hope you can cut me (us?) some slack.

        The problem I have with this genre of argument…

        “Whether the use of trees as proxies was debatable or just plain wrong matters little from a legal perspective; in either case, Steyn is entitled to vigorously attack the work of Mann.”

        …is that describing a scientist’s work as ‘fraudulent’ goes far beyond what I understand as ‘vigorously attacking’ it, and makes an imputation that would NOT be defensible ethically (would it be defensible legally?) if the worst the speaker could say of Mann was that he’d employed a “debatable” technique.

        Bearing in mind that no research methodology in scientific history is beyond “debate”, the logical extension of your reasoning seems to be that Steyn is “entitled to describe as fraudulent [if this ie what you meant by vigorously attack] the work of just about any scientist in the phone book.

        I wouldn’t defend Steyn’s entitlement to say what he said if I believed for a second that as far as Steyn knew, Mann’s only sin was to have done “debatable” science, or got the answer wrong, or made a hash of the maths. (Would you?)

        Or is this whole comment an exercise in wildly missing the point, in a way that I’ve failed to grasp because I’m not a lawyer?

        Anyway JD Ohio I’ll understand if you don’t have time to unpack this for me—you’ve done an amazing job so far, not only of the original post but also interacting generously with critics and questioners here. I don’t know where you get the time and I’ll stop trespassing on it now :=-)

        • B Keys: “The problem I have with this genre of argument…

          “Whether the use of trees as proxies was debatable or just plain wrong matters little from a legal perspective; in either case, Steyn is entitled to vigorously attack the work of Mann.”

          …is that describing a scientist’s work as ‘fraudulent’ goes far beyond what I understand as ‘vigorously attacking’ it, and makes an imputation that would NOT be defensible ethically”

          Steyn called the hockey stick “fraudulent.” Rich Lowry of the National Review stated that “in common polemical usage, “fraudulent” doesn’t mean honest-to-goodness criminal fraud. It means intellectually bogus and wrong.” They made clear that they weren’t saying something like the actual data had been destroyed or changed. So, they weren’t using fraud in the sense that you appear to be using it.

          Making clear my original point. For instance, assume the Hockey Stick is all screwed up. It could be gross incompetence. It could be fraud. Mann has to prove that the defendants acted with malice or recklessness. If there is substantial evidence of gross incompetence, I believe the use of the term “fraud” as explained by Lowry is correct. Showing actual fraud on the part of Mann is much harder than showing gross incompetence or good grounds to allege gross incompetence. Legally it is easier to prove gross incompetence, and most courts would be reluctant to find actual fraud in a defamation case unless the proof was very clear. Tactically, it is easier to go with gross incompetence, which is the path of least resistance in getting the case dismissed if you are a defendant.

          • JD Ohio

            thanks for the explanation, which makes beaucoup sense, even if it isn’t morally satisfying for those of us who are barracking for a Scopes 2.0.

            We will only really be happy if Steyn and Simberg beat the lawsuit on the grounds of substantial truth. “Protected colorful rhetoric” would be the most anticlimactic non-ending for this lawsuit—for Both Sides, I suspect.

            But I’m not a defendant and without having walked in their shoes I can’t blame them for preferring “the path of least resistance” over a more meaningful, more costly triumph. Steyn in particular never signed up for the role of champion-to-the-death of science vs pseudoscience, much as we might wish him to play that part.

            I disagree with you, however (and just about every other analyst of this case), on the difficulty of proving fraud.

            Steyn himself was kind enough to tweet about some advice I wrote him, as follows. I’m not sure he really believed or understood me, however, and I’m sure he’s long forgotten my counsel. But it was this:

            Mann’s paper was unreplicable. Occult. Faith-based. It withheld ‘enabling detail’, to use the language of patent law. It relied on mystery-meat methodology.

            And Mann will have a very hard time pretending he didn’t know this. He spent years defending his work from decryption by outsiders, which demonstrates an intent that was, shall we say, other than scientific.

            This is all public knowledge by now, isn’t it? Those unconvinced should read in full the WSJ profile by Antonio Regalado (https://www.wsj.com/articles/SB110834031507653590) in which Mann is quoted as saying—seven years after his paper came out!—that “Giving them the algorithm would be giving into the intimidation tactics these people are engaged in.”

            (Although, or perhaps because, Regalado is sympathetic to “the scientist’s” plight, his story is the single most incriminating article I’ve read about Mann.)

            Ipso facto, there is no possible way to include the infamous HS paper in the genre “science.”

            Yet Mann was tirelessly complicit in passing it off as precisely that: a work of science.

            At the risk of obviousness, there is a word for the misrepresentation of non-science as science: pseudoscience. Which is a species of… you guessed it… academic fraud.

            Truth being an absolute defense according to every legal drama I’ve seen on TV, the lawsuit must be dismissed.

            Note that the temperature in the Middle Ages is completely irrelevant. Mann fanboiz waving around subsequent “confirmations” of the Stick need to appreciate that no such finding can ever validate Mann’s document, or rehabilitate it into the world of science, because agreeing with does not constitute replicating. (Nor does replicating entail agreeing—as McIntyre found when he finally became the first person on earth able to retrace Mann’s statistical [mis]steps, after spending years prying the information from him—but that’s another story.)

            Even if some vaguely bacilliform drawing turns out to be the historical “truth,” Mann’s paper remains an exemplar of parascientific creative writing. After all, with apologies to Professor Wegman:

            correct result + secret methods = not science.

            To repeat, the methods Mann used in MBH98 could be scientifically unimpeachable and his graph pixel-perfectly veridical. It wouldn’t alter the fact that there was no way for readers to validate this for themselves. If it’s not auditable, replicable, reproducible, etc., it’s not a scientific paper.

            End of story. There is no wiggle room on this.

            (To be sure, this criterion might be considered unreasonably burdensome for certain studies—e.g. where the enabling information would exceed the capacity of an impractically-long article. And in such cases, anything omitted from the paper for logistical reasons must be supplied upon request to parties seeking to replicate it, not withheld on the bogus pretext of feeling “intimidated.” In any case, MBH98 cannot invoke this genre of excuse. There was nothing unusually complex about the paper, nor any reason it could not have met its burden of disclosure.)

            JD Ohio, I’d value (highly) any thoughts you have, as brutally honest as you like, on my proposed strategy.

          • Brad K: “We will only really be happy if Steyn and Simberg beat the lawsuit on the grounds of substantial truth. ”

            The problem with that is that neither the court or the jurors are intellectually equipped to ascertain substantial truth in complex scientific matters. All a “court” is is a lawyer with political connections deciding cases. (The trial judge probably has 500 to 1000 cases on his or her docket –that is why so many cases settle. Virtually impossible for judge to learn science and statistics during trial.) For sure, scientific and statistical knowledge is not a requirement of the job. For jurors, it is even worse with much lower levels of education. Plain and simple, courts are not institutionally equipped to ferret out scientific truth. That is partially proven by how wrong the Court of Appeals was in finding that Mann had been “exonerated.”

            Here is a comment from Gary ( #123313) during a discussion of the Mann case which I consider to be spot-on:

            “You’re over-thinking this. Having sat on a jury (murder trial), I’ve seen the inside of the process. Jurors are given a contained set of facts and testimony and then asked to judge which are plausible and how they relate to the charge. Confused/confusing and misunderstood information will be disregarded by jurors, MAKING IT WORTHLESS to the side that presents it. It also may make some suspicious that the lawyers are trying only to impress them with technical-sounding but extraneous information — again, a detrimental result.

            R2 should be presented as an indicator of trustworthiness. It has to be as simple as a sniff-test. The only background information should be that it’s a long-accepted and reliable calculation used by all sorts of professionals in their work. High R2 good; low R2 bad.” See http://rankexploits.com/musings/2014/the-meaning-of-r2-in-pictures-mann-v-steynsimbergceinro/#comment-123899

            I should add that I have followed climate matters for 10 years, and very unfortunately, I still don’t understand the statistics. I have made sure that my high school son would take statistics.

            Thanks for your very thoughtful questions.

          • JD Ohio,

            that’s a great comment, thanks, but not really a response to my question. But that’s my fault for burying my question in flora and fauna.

            I totally agree—courts won’t and can’t follow a scientific argument. That’s why my suggestion was to make a much SIMPLER case:

            __________
            1. explain that when writing a scientific paper, every scientist knows the rule:

            correct answer + secret methods = NOT SCIENCE

            2. show that Mann DID keep his methods secret. For example this is proven by:

            – the inability of McIntyre or anyone else to replicate his paper without more information

            – Mann’s outburst “giving them the algorithm would be giving in to intimidation!” reported by the WSJ

            3. show that despite its THEREFORE being non-scientific, Mann passed his paper off as though it were science

            4. explain that “there is a word for the misrepresentation of non-science as science: pseudoscience. Which is a species of… academic fraud.” as I put it earlier

            5. therefore the expression ‘fraudulent hockey stick’ was a TRUE description of the paper
            __________
            Does this seem like a winner?

        • Brad Keyes:

          “That’s why my suggestion was to make a much SIMPLER case:
          __________
          1. explain that when writing a scientific paper, every scientist knows the rule:

          correct answer + secret methods = NOT SCIENCE

          2. show that Mann DID keep his methods secret. For example this is proven by:

          – the inability of McIntyre or anyone else to replicate his paper without more information

          – Mann’s outburst “giving them the algorithm would be giving in to intimidation!” reported by the WSJ

          3. show that despite its THEREFORE being non-scientific, Mann passed his paper off as though it were science”

          Sorry to say that I don’t agree with your point here. For instance, if you claim that Mann’s work couldn’t be replicated without more information, Mann will probably argue 3 things. 1. That McIntyre is not a climate scientist and is incompetent, and that Mann is a highly honored, successful climate scientist 2. That other scientists have functionally replicated his work, and 3. That prestigious climate scientists follow the same methods as Mann.

          My main point is that arguing the science, in all but the very simplest way, is beyond the capacity of the Court or a jury to understand it. If the science is not understood, the Court and the jurors will default to ruling for the person with, on the surface, the highest qualifications. My point, unfortunately, is proven by the Court of Appeals issuing a factually wrong decision on, basically, what is a very simple [though time consuming] issue — that no one examined Mann’s working in a searching, objective manner.

          So, if you are a defendant and can avoid a trial, you should.

          • Thanks JD. I still think you’re wrong, but then again, the fact that I can’t seem to convince you of this (and you’re far more legally and scientifically literate than any juror) proves you’re right.

  15. “… Around 1960, tree proxies which seemed to be accurate indicators of rising and falling temperatures began showing declines …”
    ================================
    The uncertainty shading of the original hockey stick graph (MBH99) together with the dodgy screening of samples indicates in effect that the ‘handle’ was a linear trend line with the supposed NH record from ~1880 ‘blade’ tacked on, e.g.:
    http://woodfortrees.org/plot/hadcrut4nh/from:1855/to:1975/trend/plot/hadcrut4nh/from:1975
    Another implication of ‘hide the decline’, as I think Frank Lansner has argued, could be that the depth of the post-’45 NH temperature decline as indicated by pre-Hansen reconstructions was in fact deeper than later ‘adjusted’ versions.

  16. It appears to me to be extraordinarily difficult if not impossible to separate the effects of temperature change from the effects of precipitation change on tree rings. Any study failing to do that would be useless.

  17. You can read a long way into this post without finding an answer to some very basic questions:
    1. What Court of Appeal is it talking about?
    2. What decision? When?
    3. What did it decide?
    I see the article is a re-run of a post at Lucia’s from February of this year.

    • NS: “You can read a long way into this post without finding an answer to some very basic questions:
      1. What Court of Appeal is it talking about?
      2. What decision? When?
      3. What did it decide?”

      1. There is a link to the decision in the first paragraph of the foreword, which identifies it as the DC Court of Appeals and has all the information you are asking questions about. 2. What it decided were multiple issues which were very subtle; I focused on the one (“exoneration”) that was most important to me. If I covered all of the issues discussed in the 111 page opinion, my post would be extraordinarily difficult for lay readers to understand. You can thank Mann’s lawyer for the length of the opinion because of the many half-truths that were part of his brief. 3. In the third para, I said this post was originally published at Lucia’s.

      • “my post would be extraordinarily difficult for lay readers to understand”
        Your post is extraordinarily difficult for any readers to understand. Why can’t you just start with the basics. The case is Mann vs CEI NRO etc in the DC Supreme Court. The defence appealed during the trial on various matters to the DC Appeals Court, who handed down a finding on 22 Dec 2016, against the appeal. Here is the decision. It doesn’t take long to write that down, and we would have some idea of what you are talking about. If I’ve guessed right.

        • You make half of a point. However, virtually none of the lay readers care what entity is trying the case. On my end, the only issue is the “exoneration” issue, and it wouldn’t matter whether a California court, a Kentucky court or a DC court reached that conclusion. Anyone interested can click on the link which follows the second sentence.

        • Nick Stokes: Your post is extraordinarily difficult for any readers to understand.

          “Extraordinarily”? I don’t think so. You do have to pay attention and recall that the problem is caused by Mann’s and his attorneys’ loose use of language.

    • N Stokes: Now that you have had the chance to nitpick: do you believe Mann’s work was exonerated by the endeavors cited in the Court opinion? If so, can you specifically state what you consider to be a thorough, unbiased investigation where the investigating entity went into the endeavor without any preconceived notions and thoroughly examined all of the pertinent issues and issued definitive specific, findings in favor of Mann such that anyone criticizing his work in the manner of Steyn is guilty of actual malice?

      • he won’t answer direct questions straight up, or I would be very, very surprised if he did. It has been rare, if ever. That is the methodology of the faithful. I have been reading the comments section on this site for a few years now and the trend is that when he is pressed to make his position completely transparent and honest, he refuses.

        Most folks that identify left of center these days will not answer simple questions with simple answers because they don’t want to get pinned down by logic and reason. They know full well if they admit to a particular answer, it sets them up to fail. From my experience it is nearly impossible to get the modern religionists to ever admit to anything.

        • “will not answer simple questions with simple answers”
          The Superior Court took many months (and two judges) on those “simple questions”. The Appeals Court took about two years. I don’t have any superior wisdom to theirs to offer on the issues of DC law.

          • Stokes: “I don’t have any superior wisdom to theirs to offer on the issues of DC law.”

            You deflect. Didn’t ask you a legal question. Asked you about whether the claimed “exonerations” were real investigations by dispassionate people and whether they truly exonerated Mann such that only a malicious person could question whether Mann had engaged in data manipulation. (for our purposes now, I am limiting the issue to data manipulation)

            Would also add that at Lucia’s you argued legal principles all of the time, including whether Mann’s statement that McIntyre had committed “pure scientific fraud” was admissible or not.

          • “you argued legal principles all of the time”
            I pointed out errors. And was constantly told that I didn’t know what I was talking about, and that Mann’s case was full of gaping holes and would be summarily rejected. But now it has passed the scrutiny of two SC judges and three Appeals Court judges.

            But anyway, I think the fuss made here and at CA etc about literal exoneration is just silly. The fact is that accusations were not upheld. The inquiry outcomes did not establish any Mann misdeeds. This goes to his credit, and adds to the case that NRO, CEI etc were reckless with the truth.

          • The inquiry outcomes did not establish any Mann misdeeds.

            is a long way away from “…exonerated…”. Especially when none of the inquiries actually looked at any of Mann’s deeds, which is what J.D Ohio Attorney just spent oh-so-many words to establish. Or did you choose to overlook that? (I started to say you missed it, but you rarely miss anything, but what you choose to overlook frequently baffles me!)

          • Red94ViperRT10

            ” (I started to say you missed it, but you rarely miss anything, but what you choose to overlook frequently baffles me!)”

            After many years of observing Nick in action i can tell you he is a total apoligist for the “cause”. He will not concede one iota if it is detrimental to the “cause”. He is excellent at nitpicking anything that is detrimental to the “cause”.

            He didn’t get the nickname “Racehorse Nick” over at Climate Audit for being a reasonable defender of the “cause”.

          • The inquiry outcomes did not establish any Mann misdeeds

            It’s kind of hard to establish something one is not looking for/at. Not finding what you are not looking for is *not* the same thing as exonerating.

          • Nick Stokes: “But now it has passed the scrutiny of two SC judges …” Doesn’t give me a whole lot of confidence that the first judge (Combs) couldn’t even correctly identify the parties in her opinion. See https://wattsupwiththat.com/2013/07/29/mann-steyn-lawsuit-judge-inverts-the-defendants-botches-ruling/

            Find it humorous that you claim to have “pointed out errors” and not discussed legalities. Notwithstanding, your lack of a legal background, you discussed authentication and admissibility under the law in detail in an attempt to claim that Mann could exclude his statement that McIntyre was guilty of “scientific fraud.” See http://rankexploits.com/musings/2014/comments-on-mann-continued/

            I guess you don’t consider this arguing the law:
            Nick quoting my previous comment:
            “JD Ohio (Comment #124560)
            “Nick, please keep reading.
            Rule 1003. Admissibility of Duplicates”

            Re duplicates, Rule 1001:
            “e) A “duplicate” means a counterpart produced by a mechanical, photographic, chemical, electronic, or other equivalent process or technique that accurately reproduces the original.”
            Hardly relevant here; its the same test of accurately reproducing Mann’s email to Revkin.

            Notes of Advisory Committee on Proposed Rules
            ” a counterpart serves equally as well as the original, if the counterpart is the product of a method which insures accuracy and genuineness”
            That’s just about reproduction methods; not an issue here. Unless you mean the whole pathway from UEA server to courtroom. That does not obviously insure accuracy and genuineness.

            Rule 1004:
            “other evidence of the content of a writing, recording, or photograph is admissible if”
            Yes, but you need the other evidence.

            Rule 1008.
            Again, basically a relevance issue. The notes say:
            “Most preliminary questions of fact in connection with applying the rule preferring the original as evidence of contents are for the judge, under the general principles announced in Rule 104, supra. Thus, the question whether the loss of the originals has been established, or of the fulfillment of other conditions specified in Rule 1004, supra, is for the judge.”
            The exception is under Rule 104b – “Relevance That Depends on a Fact.” Again, relevance, not whether the doc is an accurate version.

            “Part of what you fail to grasp is that if Mann equivocates, he is not really challenging the content of the writing.” No, the point is the need for someone to provide positive evidence that the version accurately represents what Mann wrote to Revkin.

            Later on I pointed out that the Safavian case set a low bar for authenticity, which didn’t deter you at all. No need to go into merits of the legal question. You were definitely arguing law. To deflect and say that you were pointing out errors is obviously a humorously false characterization of what you were doing.

            Looking at the glass as half-full at this point: At least, so far you haven’t tried to argue that the claimed “exonerations” were serious investigations of Michael Mann’s work. To this point, I can claim some progress if even you (who is much more familiar with the “exonerations” than the Court — as am I) can’t defend them as serious inquiries into the validity of Mann’s work.

          • Nick Stokes: The inquiry outcomes did not establish any Mann misdeeds.

            a. The committees that did not specifically investigate Mann did not establish any Mann misdeeds. To call that “exoneration” is a perversion of language.

            b. The PSU committee that specifically investigated allegations against Jerry Sandusky and Michel Mann used the same technique of asking only the accused whether they had done anything wrong; in excusing each of them they cited the same factors of bringing fame and money to the University. Nothing short of a grand jury investigation can reveal whether they did as bad a job with Mann as with Sandusky.

            What exactly in JD in Ohio’s presentation are you disputing? Anything?

          • “To call that “exoneration” is a perversion of language.”
            “What exactly in JD in Ohio’s presentation are you disputing?”
            In fact, I just pointed out that the screed was unnecessarily hard to understand because he didn’t set out the basics – what court, what case, when. And this extends to the “exoneration” claim. It’s very hard to discern who said it, in what circumstances, and what exactly they said.

            But there is a further question – why does it matter? Whoever said it (if they did) thought exoneration was the right word. You don’t. So?

          • N Stokes: “It’s very hard to discern who said it, in what circumstances, and what exactly they said.” [from JD’s post]

            The reason for that is that I had to undo numerous deliberate deceptions in Mann’s briefs which were then incorporated into the decision of the Court of Appeals. For instance, on page 12 of his appellate brief it was stated:

            “Following the publication of the CRU e-mails, and the subsequent baseless charge that
            these e-mails showed that global warming was a hoax, a number of climate change skeptics, including CEI, called for official inquiries into whether any of the researchers had committed fraud, or had improperly manipulated any data. Their calls were heeded—two universities and six governmental agencies independently investigated the allegations of fraud and misconduct against Dr. Mann and others in the climate science community. And every one of these investigations concluded that there was no basis to the allegations of fraudulent conduct, data manipulation, or the like.”

            Most of these investigations had little if nothing to do with Mann. However, to muck things up and give a false veneer of “exoneration” to Mann the passage above refers to: “agencies independently investigated the allegations of fraud and misconduct against Dr. Mann and OTHERS IN THE CLIMATE SCIENCE COMMUNITY. Thus 99% of the claimed investigations could deal with matters other than Mann, but since it refers to Mann AND OTHERS, it is literally true. [but misleading and dishonest]

            Half-truths and deceptions such as this are stated over and over again. To unwind the deceptions and show the truth, I was forced to painstakingly go through all of them to specifically point out the nature of each deception. So, please don’t blame me for the length of what I wrote or the fact that it is somewhat tedious. There was no other way to unwind what Mann’s team did.

            The fact that you have had multiple chances to challenge my characterization of the claimed “exonerations” [please remember that this is Mann’s word that was used in his brief] and have not done so demonstrates that the analysis is correct.

            Finally, you ask why does the dispute over the “exonerations” matter? The reason it matters is that the idea that Mann was “exonerated” multiple times was a very important part of the decision of the Court of Appeals.

          • “The reason for that is that I had to undo numerous deliberate deceptions in Mann’s briefs…”
            That doesn’t help. If you don’t set out the basics – who said what about “exoneration” and what did they say, then your post just doesn’t make sense.

            Here is just part of the fuller picture. In CEI’s original anti-SLAPP memo, they had a para on pp12-13 about Jones’ cover for the WMO report. It was the occasion for Jones talking of “Mike’s Nature trick”, but Mann was not an author. But CEI wanted to attach the opprobrium to Mann.

            Now in fact, the Oxburgh report said there was no opprobrium to attach (“We found absolutely no evidence of impropriety whatsoever”). And of course, didn’t mention Mann, because he wasn’t an author. So there is no opprobrium to attach. No now the clamor is that Mann is not exonerated, because he wasn’t mentioned by Oxburgh. He’s still guilty, even though the inquiry found that in that matter, there is nothing to be guilty of, even if he was involved.

          • Nick Stokes deflecting again: ““The reason for that is that I had to undo numerous deliberate deceptions in Mann’s briefs…”
            That doesn’t help. If you don’t set out the basics – who said what about “exoneration” and what did they say, then your post just doesn’t make sense.”

            I stated in my post that none of the claimed “investigations” were thorough and that they couldn’t “exonerate” Mann. I give many reasons why that is so. It is Mann’s burden of proof to sustain the validity of the claimed “exonerations” which were first mentioned in para 21 of his complaint. He hasn’t done so, and notwithstanding your familiarity with the “investigations”, you have not been able to substantially support the validity of any of them.

            You have had multiple chances to support Mann’s position and have failed to give any support for his claim that he was “exonerated” [by serious and searching investigations]. Will not debate this further with you as you have an obvious tendency to side track issues. (For instance, you stated above that you were relying on the competence of the judges, which assumes the conclusion to the whole issue I raised: Was there any support for the Court of Appeals’ conclusion that Mann had been exonerated)

            Also, thank you for giving me a greater focus on what is wrong with Mann’s briefs and the Court’s opinion. Mann intentionally conflated “investigations” that looked at the minimum validity of climate science and claimed that they “exonerated” him INDIVIDUALLY, which is clearly wrong.

          • Nick Stokes is being dishonest. He knows that Mann claims to be an author of the WMO chart in his resume. He also knows the ‘nothing improper’ refers to the 11 papers they reviewed, not the WMO graphic.

          • Nick Stokes: But there is a further question – why does it matter? Whoever said it (if they did) thought exoneration was the right word. You don’t. So?

            Mann and his attorneys made the claim in their brief to the court. Surely you are not disputing that?

          • ” Surely you are not disputing that?”
            Well, you should quote what they said. But it doesn’t bear on the question – why does it matter? They think exonerated is an appropriate description – you don’t. The inquiries are there for everyone to read and make up their minds. It may even be they’ll decide that Mann’s lawyers stretched the descriptive words in their client’s direction. It wouldn’t be unprecedented. But the judges don’t seem to think so.

  18. JD Ohio, a question on FOIA:

    Mann claims that requests to see his emails are just people out to get him. Courts seem to have allowed that dodge.

    It seems to me that requests to see public records don’t need a stinkin’ reason. Is Mann/UVA/Penn State response legally valid? Does the court have to decide, “Yeah, that’s a good reason?”

    • Gamecock: “Mann claims that requests to see his emails are just people out to get him. Courts seem to have allowed that dodge.

      It seems to me that requests to see public records don’t need a stinkin’ reason. Is Mann/UVA/Penn State response legally valid?”

      Generally, under FOIA laws, the reason for the request is irrelevant. Each state’s FOIA laws are different, and denials for the release of records can be based on any number of reasons under state laws. Penn State is a weird situation in that PSU is half-private/half-public. Don’t remember why Virginia wouldn’t release the records. Arizona, of course, held that its FOIA law permitted the release of the emails.

      • Penn State is a weird situation in that PSU is half-private/half-public.

        So they should have to release half of Mann’s emails? I worked 5 years at M. D. Anderson Cancer Center, which was advertised as something like 10% a State of Texas entity, but if you went by total funding including all research grants, only about 2% of its operating budget came from the State of Texas. Nonetheless, we had to comply with the State’s laws, rules and regulations as if we were 100% State of Texas. It was sort of like having all of the responsibility and none of the authority. But really, what you have already said is enough discussion, in that

        Each state’s FOIA laws are different,…

      • UVA argued that it would make them less competitive vs private universities to get research professors if they had to release e-mails.

  19. “3. The eleven representative publications that the Panel considered in detail are listed in Appendix B. The papers cover a period of more than twenty years and were selected on the advice of the Royal Society. All had been published in international scientific journals and had been through a process of peer review.
    CRU agreed that they were a fair sample of the work of the Unit. [Emphasis added]…”

    I recall that Steve Mc evevtually established that the 11 papers were picked by Phil Jones, and excluded any which were remotely conterversial. Also, that the involvement of the Royal Society was murky – they rubber-stamped the selection without any rigorous, independent nvestigation of the appropriateness of the selected papers. It looked more like a favour by the then-president of the RS to an old mate, at the latter’s request.

  20. JD Ohio,
    Thank you for an excellent recap and review.
    Do you have any sense on when the next Court actions in this interminable strange case might occur?
    It seems to me that the Arizona FOIA release might have some bearing on Mann’s lawsuit. Have you formed an opinion on the Arizona emails yet?

    • hunter: I don’t know that I have ever seen an appellate court take anywhere this long (roughly 20 months) to decide whether to order a rehearing en banc. (en banc is before the whole panel of the DC Court of Appeals, which may be 9 or 10 judges — not just the 3 who actually heard the case) Here is the take of Jonathan Adler from about 10 months ago. http://reason.com/volokh/2018/02/11/whatever-happened-to-michael-manns-defam Undoubtedly, there are strong differences of opinion as to how to decide this case, and the Court hasn’t been able to come up with an opinion that it could stand behind in future cases. (maybe involving liberals being sued by businesses where the businesses allege defamation).

      What is really weird is that the Court hasn’t denied or granted the motion for rehearing. The whole case is merely hanging in midair. If the Court were to grant the motion for a rehearing, the normal procedure would be to re-brief and re-argue the case before all of the members of the court, not just the 3 who heard it the first time.

  21. It is clear beyond any doubt that the did not clear Michael Mann because it did not look at his work. Here are –>

    … that they did not …

  22. Not many seem to be aware that the “The Annals of Applied Statistics” Mar. 2011 vol 5, No 1 did an extensive analysis of Mann’s work on proxies. The journal published some 15 different articles taking up 124 pages on the subject. It included papers by Stephen McIntyre and Ross McKitrick, as well as, Gavin A. Schmidt and Michael E. Mann. I would say that the majority of authors were not kindly disposed to Mann’s treatment. This issue and its articles are freely available at this URL https://projecteuclid.org/euclid.aoas/1300715166#toc

    • Interesting thanks. Directly applicable to the legal issue of whether Mann was defamed by terms such as that he “tortured data.”

  23. Thank you very much for putting in the time necessary to unpack the Mann exoneration story.

    I began my interest in “climate Science” with Michael Chrchton’s “State of Fear” then quickly found “Climate Audit”. I followed the back and forth between
    Mr. McIntyre and Mr Mann for years. Mr. McIntyre is my hero, Mr. Mann is not.

    Mr. Stokes is brilliant in his use of language but I
    fear he is not on the side of the angels.

    If you ever head down to Georgetown get in
    touch an I will be honored to buy you dinner.

    • I have zero plans to visit DC. However, if somehow I get dragooned to go there, might just look you up — might be useful to know someone familiar with DC. Thanks for your kind words.

      JD

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