Bishop Hill Time to Mann up
Sep 21, 2011 Climate: Mann FOI This is a guest post by Richard Brearley
There has been quite a lot of coverage that I have seen of Mann’s attempt to intervene in the UVA FOI case. None of it has given sufficient detail to enable me to understand the specific issues involved and so I decided to have a look at it myself.
We need to remember that the order requiring “protective disclosure” of all of Mann’s emails during his six-year stint at UVA was by agreement between ATI and his former university. Further, that order specifically stated in its text that its purpose was “protecting information that may be exempt from disclosure under the Virginia Freedom of Information Act”. Any documentation that the university unilaterally deems to be exempt cannot be disclosed to the public without a further order of the court. This means that the university can decide without agreement from anyone else what is exempt and it can only thereafter be disclosed if a judge says so. This would only ever happen if the ATI then took back to the court a challenge that some or all of the information the university had deemed to be exempt should not be so treated. That issue would then be decided by the court.
Mann says in his intervention documents that in agreeing to release all documents under this protective umbrella the university has not protected his proprietary rights, such as they may be. There is no mention in those documents of any obligation on the University to do so. Mann says that in agreeing to the order, the university has agreed to disclose to the court documents that are in fact exempt from disclosure under FOI, but of course that is the purpose of the original order which seeks to facilitate negotiation and, if necessary, further court orders as to what is in fact disclosable to the public. Mann maintains that the documents that are exempt are documents of a personal nature. But what does Mann mean by “personal”? He specifically refers in this context to documents that contain his “thoughts, ideas, and statements regarding numerous scientific issues”. And later he refers to his personal emails “relating to climate change and other scientific issues”. So Mann is not trying to stop the disclosure of emails to his gran or his wife/girlfriend, but very specifically those relating to his thoughts, ideas, and statements relating to climate change.
Let’s have a brief look at the stated purpose of the Virginia FOI legislation:
§ 2.2-3700. Short title; policy.
A. This chapter may be cited as "The Virginia Freedom of Information Act."
B. By enacting this chapter, the General Assembly ensures the people of the Commonwealth ready access to public records in the custody of a public body or its officers and employees, and free entry to meetings of public bodies wherein the business of the people is being conducted. The affairs of government are not intended to be conducted in an atmosphere of secrecy since at all times the public is to be the beneficiary of any action taken at any level of government. Unless a public body or its officers or employees specifically elect to exercise an exemption provided by this chapter or any other statute, every meeting shall be open to the public and all public records shall be available for inspection and copying upon request. All public records and meetings shall be presumed open, unless an exemption is properly invoked.
The provisions of this chapter shall be liberally construed to promote an increased awareness by all persons of governmental activities and afford every opportunity to citizens to witness the operations of government. Any exemption from public access to records or meetings shall be narrowly construed and no record shall be withheld or meeting closed to the public unless specifically made exempt pursuant to this chapter or other specific provision of law. This chapter shall not be construed to discourage the free discussion by government officials or employees of public matters with the citizens of the Commonwealth.
All public bodies and their officers and employees shall make reasonable efforts to reach an agreement with a requester concerning the production of the records requested.
However, Mann’s intervention is based, as his lawyers point out, on the Code of Virginia. He states that following VA code 2.2-3075.4(4) these documents cannot not be released.
That part of the code (which is part of the Virginia FOI regime) states as follows:
§ 2.2-3705.4. Exclusions to application of chapter; educational records and certain records of educational institutions.
The following records are excluded from the provisions of this chapter but may be disclosed by the custodian in his discretion, except where such disclosure is prohibited by law:
……………………
4. Data, records or information of a proprietary nature produced or collected by or for faculty or staff of public institutions of higher education, other than the institutions' financial or administrative records, in the conduct of or as a result of study or research on medical, scientific, technical or scholarly issues, whether sponsored by the institution alone or in conjunction with a governmental body or a private concern, where such data, records or information has not been publicly released, published, copyrighted or patented.
Three issues are immediately obvious. The first is that this part of the Code relates to educational records or the records of educational institutions, not people who may have worked for them. It says nothing about, and therefore presumably provides no exceptions for, the staff of such institutions.
The second is that the “custodian” of the records in question may release them at its discretion even if they would otherwise be exempt except where disclosure is illegal, and of course the university has agreed to disclosure in the terms of the order already made by the court. And yet Mann in his documents in support of his intervention uses the fact of the University’s agreement to release documents as a reason why he should be protected. But the custodian has discretion, i.e. it can lawfully make a decision to release without recourse to former employees, but Mann makes no mention of this in his papers submitted to the court.
The third is that this exception applies to information of a “proprietary” nature “in the conduct of or as a result of study or research”. The meaning of this appears to be clear. It refers to the ownership by the educational institution itself of information relating to study or research. Mann and his lawyers repeatedly refer to Mann’s “interest” in these documents. So far as I can see he has none. The university has already agreed to disclose the documents knowing that some might be exempt and knowing that it can flag as exempt those that it chooses. And yet Mann’s complaint in his pleadings is that that the University previously agreed that many documents were exempt from disclosure. (Yes, Dr Mann – that’s what the original order says and was for – to allow the University to flag some documents as exempt and for the court to decide whether they are in fact are exempt).
In my view Mann has no basis in law to suggest that this part of the code protects him or any proprietary rights that he claims to have in the information. Note that the exception relates to study and research, the very things that Mann was employed to do. I cannot say for certain since I have never seen Mann’s contract of employment but it would be incredibly unusual for an academic at a university not to have a contract that states that his research and study is the property of his employer. Note that we are not talking about publications here, but the everyday cut and thrust of study and research. That would seem to me to include any conversation Mann had with other scientists about climate change or any other matter touching on his discharge of his position as an assistant professor at this university. Thus it is almost certainly the case that Mann has no proprietary interest whatever in documentation he produced whilst an employee of UVA that was as a result of study or research. Of course none of Mann’s email musings that he now considers to be his property and “personal” would have occurred on the UVA email system but for his employment at that university.
The memorandum of Law in support of Mann’s intervention states that it seeks to stop the “upcoming and improper disclosure of thousands of his personal e-mail exchanges with professional colleagues”. The language of Mann’s documentation in support is inappropriate. He talks of the release of documents to “the very activist petitioners that are on a mission to scapegoat him”. There is so much wrong with this in the context of a FOI case and I am surprised that his lawyers allowed this phrasing to pass muster. It is completely irrelevant. The motive of the requester is not a relevant consideration and this is a central tenet of FOI regimes pretty much wherever they exist and certainly so in the US or the UK. One could make an FOI request stating on its face that the intention was to use any information disclosed to discredit the very public authority that is asked for the information. It doesn’t effect the obligation to disclose one iota. So why would a lawyer bother to include such improper language (in the context of relevant legal pleadings in these cases)? The only answer that shouts to any lawyer from the pleadings is desperation. Having, as we all have, seen a deal of Mann’s personality revealed over the years in various circumstances, all that can be said is that we see a pollution of the lawyer’s drafting with Mann’s feelings of persecution as an academic. This is a theme widely, but I suspect fruitlessly, posited by the utterly irrelevant (in a legal context) letters from Trenberth, D’Arrigo, Santer, and Bradley in support of Mann’s intervention and a theme we see regularly regurgitated by other scientists and warmists.
It must be accepted that one can have personal email exchanges with professional colleagues. We all do this since many professional colleagues are also friends or acquaintances. Emails thanking colleagues for a good night at their recent barbecue, or thanking them for the birthday card received by one’s wife or child, or arranging a round of golf. These are clearly personal. But they are also trivial and in reality would be of no interest whatsoever to anyone. Remembering that the documents are to be disclosed under seal and under the eyes of the court and only two attorneys from ATI, one would imagine that such emails would be glossed over and that no-one would be wasting their time arguing for their public release.
But other than emails like the examples above between “professional colleagues”, what other correspondence is “personal”? Well, I can’t think of any myself. Perhaps Mann and his lawyers are blurring the distinction between personal emails and academic freedom. Certainly the flavour of Mann’s pleading is that there should be an exemption for academic freedom and that in this respect those documents should be considered as personal. But if an email is sent or received from those colleagues on the “work” email system then there is no expectation of privacy. That is clearly the case for Mann in the context of UVA’s policies and, it would appear, his own employment contract with his former employers.
But Mann is clearly intent on seeking to block even the court from seeing these emails. Not the public, but the court, and two lawyers who are bound by their professional obligations to keep secret any information they have seen that is not subsequently released – professional men who risk being struck off if they breach this obligation. Let’s not forget that Mann’s intervention seeks to excuse these documents from production to a judge, let alone the public. Judges, particularly in criminal cases, are often required to see correspondence or documents in order to decide whether they can be admitted in evidence. It is often the job of a judge to examine documents that are subsequently disallowed as submittable evidence and which the judge is required to exclude from any assessment of the case or weighing of the evidence, even though he has read them. That is what judges do. But Mann is seemingly determined to ensure that not even a judge gets to see what he was writing about when employed at UVA.
Further, Mann’s lawyers exhibit to their documentation a copy of the University of Virginia’s policy in respect of disclosure of university records. The part of the policy the rely on is, in fact, no more than a rehash of the Virginia Code, 2.2-3705.4(4) set out above. The wording is pretty much identical. In addition Mann’s lawyers highlight clauses in that UVA policy relating to the remedy available to persons who have been denied their rights under the policy. But those clauses appear to relate to someone seeking information from the university, not someone who used to work there who is seeking to block disclosure of his communications whilst an employee.
Mann further states that release of documents will damage the reputations of dozens of scientists around the world (although he does not specifically include himself in this group). Now, if you are a judge, and bearing in mind that the existing court orders require only that documents be examined within the jurisdiction of the court and not in the public arena, what are you going to think about this surprising statement? It can only mean what Mann says. If you see these documents reputations will fall. If I were the judge in this case that statement in support of an attempt to block not only release to the public, but scrutiny under the supervision of the court, would cause a raised eyebrow – it is not a huge leap of the imagination for some to say that this is pretty much a statement, on its face, that there is something in there that Mann doesn’t want anyone to see – perhaps the concern is that if the court sees them it will immediately accept that it is manifestly in the public interest for them to be released to the public. The reason for my view in this regard is that if I were presenting a case that there should be an exception in respect of academic freedom, or that some of the documents should be classified as personal, then I would argue that the consequences may or are likely to result in…I would never, ever, say will result in… I wouldn’t be referring to any actual consequences of disclosure but possible consequences. And of course in making an argument for academic freedom or for a classification of some documents as personal my arguments would be framed around the good reasons why this should, in general, apply. That is not being done here. Mann has unequivocally stated, in court documents, that disclosure will result in a loss of reputations for dozens of scientists.
In short Mann’s intervention seems to me to be destined to fail. Of course he has secured a delay in the release of documents. And but for this intervention the documents would have been released about now. There is a hearing listed in November to decide on his intervention application. Once this has been disposed of (which I am sure it will be) then no doubt the documents will be required to be released immediately.
Perhaps Mann has an interest in delay.
There is undoubtedly a theme here that is starting to resound throughout the US and the UK. Scientists are starting to realise that we, the public, are legally empowered to see what they have been up to. As the wonderful Clive Dunn used to say in Dad’s Army – they don’t like it up ‘em.
Reader Comments (43)
“protecting information that may be exempt from disclosure under the Virginia Freedom of Information Act”
I interpret that as meaning that the VFIA is the primary instrument - in other words, it's not up the university what they hold back, they have to supply a clear argument that the Act doesn't cover it. Shirley?
BTW, who's paying for Mann's lawyers?
James
Quite right.
Here, the court has essentialy given UVA some space. It has said - produce the documents that have been asked for and we (the court) will decide, if asked, what should be released. It is a good order. It gives the parties time to negotiate about what should be released to the public but retains for itself the last word. In my view the order is seeking to uphold the intent and purpose of FOI.
You are quite right in your assessment. It is not up to the University, let alone Mann, as to what should be disclosed. It is, in fact, up to the court based on its interpretation of the relevant FOI legoslation. In short no matter how the University or Mann might scream about this or that, the final decision is now in the hands of a judge. About time too.
Sorry for my ignorance of the background, but what is "ATI"?
ATI = American Tradition Institute - a political think-tank thingy.
Richard Brearley - thanks for the meaty article, it will take me awhile to digest it. I hope you stick around for a few (or many) days . . . . please.
BH - I cannot express my deep appreciation of your venue and energy in making it a great place.
John
A legal defense fund has been set up by a couple scientists /professors and run out of their SUNY offices. Scott Mandia: http://profmandia.wordpress.com/2011/09/09/donation/
http://motherjones.com/blue-marble/2011/09/legal-defense-fund-climate-scientists
This is a timely analysis and update on the current state of affairs re Mann V FOI.
Your analysis gives me fresh hope that due process will lead to the release of all the relevent
non-personal E-Mails and from that point on, let the chips fall where they may.
I think that M Mann has been badly advised by his council; this type approach will not stand him in good stead.Time however, will tell.
My views on this is that what Mann is trying to hide has to be massive.
"...reputations will fall."
Really? The only reason "...reputations will fall" is if they know global warming is a falsehood. And then not just reputations will fall.
Governments will too.
I will need to read that a few more times to understand it better, but how much political pressure can a US Judge be subjected to?
On the post generally: As long as Mann is going to file, I'll be interested in seeing how his suit is viewed by the judge.
I were presenting a case that there should be an exception in respect of academic freedom, or that some of the documents should be classified as personal,
I'm not a lawyer, but it seems to me that this would be a point to present to legislators crafting any act, not to the judge adjudicating and exchange under FOI. Or, if it's presented to a judge, there should be some legal mumbo-jumbo explaining the legal reasons "academic freedom" creates an exception to FOI that otherwise might not exist. As far as I am aware "academic freedom" has no particular constitutional</I> recognition. It's not our (US) first amendment protections (freedom of speech, press and so forth.)
Academic freedom is an important principle inside the academy and merits deference when university administration is involved in disputes with researchers and educators. But I don't see it as a dispositive principle that gives academics extra rights once you enter the court system. Once in court, it seems to me a janitor, ditch digger, administrator and an academic ought to have equal rights to privacy with regard to their email.
BTW, who's paying for Mann's lawyers?
Mostly, Mann. But Scott Mandia has set up a donation box and is encouraging sympathetic people to contribute. He's evidently also going to create some sort of organization for tax purposes.
The people paid for Mann's research. Let's see it. Anything short of full disclosure is .......
This is such an obvious appearance of cover up as to boggle the mind.
The similarity between this and the UEA coverup effort is very telling.
Perhaps we are going to see much more context for the climategate e-mails than most of us had tought even existed.
My bet is this will be much, much worse than climategate.
Quite apart from the Virginia FOIA law with regard to Mann's standing, is the Commonwealth of Virginia Computer Use Policy, which applied to Mann as a state employee during his time at the University of Virginia from 1999 to 2005.
Although it has been updated over the years, the fundamental issues of "ownership" and "privacy" of email would have been similar to the current policy during Mann's time at UVA. Also, UVA itself makes very clear in its own current policies - which are available online at the UVA web site - that all email is subject to Virginia FOIA.
I might add that any court-ordered rejection of this policy (by granting Mann standing and hence tacit claims to "ownership" of his UVA email) must thus extend to all other Commonwealth of Virginia employees, and probably to all private commercial entities in the Commonwealth having similar policies, to wit businesses. Obviously that would be a debacle. I hope the court would consider those implications.
Granting Mann any kind of standing whatsoever would have some extremely wide-ranging ramifications on the entire body of commercial law and computer use law in the Commonwealth, and I would hope that ATI will argue it that way. Mann and indeed any academic cannot be granted some special branch of the law under the rubric of "academic freedom." And by the way, that's exactly what Mann and his lawyers are demanding (Sweezy vs. New Hampshire, 1959).
In any case, do you think Mann deserves standing for "interest" or "ownership" after reading the following Virginia computer policy?
Policy: 1.75 – Use of Electronic Communications And Social Media
Effective Date: 8/1/01
Revision Date: 3/17/11
USE OF ELECTRONIC COMMUNICATIONS AND
SOCIAL MEDIA
Application: All state employees, including employees of agencies exempt from coverage of the Virginia Personnel Act.
NOTE: Agencies may also require consultants, contract personnel, or other non-employees such as volunteers or interns to abide by this policy.
Agencies have the following responsibilities and requirements related to this policy.
A. Monitor Usage
No user shall have any expectation of privacy in any message, file, image or data created, sent, retrieved, received, or posted in the use of the Commonwealth’s equipment and/or access. Agencies have a right to monitor any and all aspects of electronic communications and social media usage. Such monitoring may occur at any time, without notice, and without the user’s permission.
In addition, except for exemptions under the Act, electronic records may be subject to the Freedom of Information Act (FOIA) and, therefore, available for public distribution.
http://www.dhrm.state.va.us/hrpolicy/pol175UseOfInternet.pdf
"...My bet is this will be much, much worse than climategate." -- hunter
My bet is, the MSM will give the outcome no more coverage than they did Climategate.
----------------
golf charley,
That is to the essential point. How much outside influence (as we have seen through climategate and subsequent '-gates') on institutions by CAGW apologists will it take to shame MSM into doing at least minimal moral diligence....... their journalistic ideological environmentalist indoctrination at university to the contrary notwithstanding?
This is starting to get down to real philosophical/epistemological/scientific fundamentals which I think will not fare well for the IPCC supported so-called consensus for the so-called settled science. The power of simple native human rational capability escapes the muddled bias of the UN's IPCC. They can never 'get it' because they do not start at a rational premise.
John
Which countries won't extradite to the USA? Mann booking a one way ticket soon??:)
Which countries won't extradite to the USA? Mann booking a one way ticket soon??:)
Sep 22, 2011 at 1:02 AM | DBD
--------------------
DBD,
Are you old enought to remember, "One way ticket, one way ticket to the moon . . . . " ?
John
BH Another one of Corporal Jones' (alias Clive Dunn) famous utterances......"Don't panic! Don't panic!.."
Richard Brearley, thanks for this excellent exposition. Please forgive my flippancy in making the following observations:
It certainly wouldn't be the first "distinction" Mann has attempted to blur, would it?!
This is an ironic and amusing position for Mann to take! He must be aware that the emails are such that he cannot invoke the "out of context" excuse. Furthermore, if this self-exclusion (intentional or otherwise) is to be taken as his view that his own reputation is impeccable - and that his sole concern is for the reputations of his correspondents (which must be protected at all costs) - requires a very willing suspension of disbelief! 'Tis a far, far better thing that he does now, than .... Nah, I don't buy it!
Perhaps Mann considers that his "success" in inventing/redefining statistical methods to suit his purposes has led him to the erroneous conclusion that he has the power and the glory to do the same with the letter of the law!
That his counsel have not advised him against such "arguments" would suggest that they may be practitioners from the school of, uh, post-normal law ;-)
"Mann further states that release of documents will damage the reputations of dozens of scientists around the world (although he does not specifically include himself in this group)"
This appears a very thinly veiled threat from Dr Mann. "If I go down then you all are going down too"
I wonder if the "you" is just limited to scientists.
I suspect that he's going to win his case!
Here's Mann's Notice of Motion to Intervene:
http://www.atinstitute.org/wp-content/uploads/2011/09/9-2-11-notice-motion-to-intervene.pdf
My goodness. His "...musings..." might be up for grabs which "will...cause damage to reputations" and for good measure, amusingly (from a legal cliche point of view) a potential "chilling effect" is thrown into the breach.
Less entertaining is his attempt to entangle this case with the VG AG's separate action to see his emails (see para 22 in the notice). I'm not a US attorney - perhaps Richard could comment on this angle?
Excellent brief,counselor, and readable. You do make all the appropriate "and's", "if's", and "but's," which is wise. However,
1) Since about 1980 when many ex-Stanford professors took off for Silicon Valley to open a start up with technology developed at Stanford University, every university in the US requires their staff, not just academic staff but all staff, to sign over the rights to whatever they develop while employed. This is also true of every corporation I worked at. So all that stuff with Mann's name on it undoubtedly belongs to UV. Even if he did all this research in his garage, the UV probably has a claim on it given the wording I have seen many times on employment contracts. Basically, the wording says that if you developed something while in the employment of the whatever company, it belongs to them, even if you developed it on your own time.
2) Every university and corporation in the US takes the view that what is done on their equipment (ie email) belongs to them. Unless Mann used private email on privately owned computers and such his emails are the property of UV. This also is almost always written into the contract. And if he use the university's email IT, then they clearly own it. This covered by the "use of company resources" clause that has become standard over the last 30 years. So, if he sat in his office and sent Gmail, but using the university's IT network, he was using the university's resources. And that might extend to the chair he sat in as well as the office itself, not to mention the computer and electric power.
So, I really have to agree with all your points. Mann is standing in the middle of an empty field howling at the moon.
I find it interesting that Lucia is of the opinion that Mann is paying for this himself. Barking mad as well. Obviously, there are lawyers willing to take his money even though the case is basically without merit. There are starving lawyers out there, you know (which I suspect you know plenty)
Don Pablo de la Sierra --
I'm assuming Mann is on the hook. Would the lawyers do this only on the promise that someone might raise money? (Maybe. I don't know.)
I think last I read, Scott Mandia had raised something like $10,000 though. So, I don't really know.
I'm reading the link to the notice-motion to intervene. The discussion of "academic freedom" cites SWEEZY V. NEW HAMPSHIRE, -- http://supreme.justia.com/us/354/234/case.html#235. which seems to be a "due process" case. I'm not a lawyer-- I read enough about due process at wikipedia to know that I don't entirely understand due process, don't understand "substantive due process" at al. The opinion also discusses the first amendment, but it's not clear to me the first amendment issue in the Mann case is analogous to the one in Sweezy. (The Sweezy case quite literally involved political issues. It's a McCarthy-era subversive person/activities type investigation.)
Interesting point, but I give you the contrary point as well. Basically, as well explained by others, Mann is asking the judge to overthrow the proprietary rights every company and university in the US would have over the product of their employees. I can hear the howls right now.
And what I really found amusing is Mann is asking to judge to not read his "private" emails because the judge can't be trusted to keep them secret. Now talk about arrogant stupidity. I am surprised that a lawyer would actually put such a implied slight into a legal document for fear of what the judge would do to him. Perhaps Mann found some barking mad lawyers as well.
This has been a most fascinating thread. Thank you so much Richard.
And one more trivial side line. You are right that Mann has no proprietary rights to his work or his emails. The copyright's proprietary rights clearly belong to the university. That leaves him his copyright moral rights, which don't mean much in the US. But in France and to a lesser extent the UK, they are enforced. But they only cover "paternity" and "integrity" -- the latter being ironic.
This appears to be a VA case, not a US case. Pressure on Judges in the US can vary. Some judges are elected; some are appointed. Some have life terms; some have finite terms. I don't know if pressure is ever huge, but I think in some instances it's not negligible.
Lucia
I am not a lawyer, but I do read up on it for my own sake. There are many forms of "due process." The most common is "procedural due process" which is how the courts and legal system works. It is all the funny little rules the lawyers must know and follow, right on down to how they write documents. Interesting enough, I am deeply interested in "substantive due process". Basically, it is a legal theory that there should be a limit on governmental actions and laws that infringe on "natural rights" (whatever they may be.) So it is, in my mind as a libertarian a good thing.
Of late, this theory has become more in vogue at the US Supreme Court, where in Lawrence v Texas (2003) the court held that two homosexual men having sex in private was none of the business of the police. My interest in the case has to deal with my publishing of shall I say, rather racy books. There are all sorts of implications in "substantive due process" with regard to what two or more consenting adults (age 18 by many court decisions) can do in private. This topic is still hotly debated in legal circles and until settled, I moved out of the racy book business and into Irish Fairy Tales.
With regard to your interest, I have not read them, but if you want an hand waving explanation of the concept it is "It isn't the business of government to regulate this."
As for the pressures on judges, my point is every corporation in the US will scream loudly if any court -- state or federal -- messes with the contractual agreement between employer and employee with regard to proprietary rights of what the employee produces. No judge is going to ignore that.
Lucia
I spent a few minutes looking at Sweezy v New Hampshire tag sheet you pointed to and it is a rather famous case that basically shut down Senator McCarthy and his witch hunt for "subversives". That it would be included in the case law review of the motion to intervene is telling. Mann appears to be wrapping himself in the "I-am-being-unjustly-persecuted" mantra that schizoid paranoids love to hide behind. I am not suggesting that Dr. Mann is mental ill or suffering from any such impairments, but merely pointing out that the tactic is often use by such people.
This has been a MOST fascinating thread. I would really like to meet Dr. Mann in person.
As for the merits of Dr. Mann's efforts, I really believe Richard did an excellent review of the issues. It is a contracts laws case. He signed a contract for employment and now he is try to break it. I don't think his tactics are very smart -- I mean telling a judge that he can't be trusted to keep his mouth shut isn't very clever, is it?
Personally number one, I don't think we are going to see anything come out of all this other than confirmation that Mann is petty, arrogant, and not nearly as bright as he and the world of climatology make him out to be (which is sort of a requirement for arrogance, I would imagine.) In other words, he will be badly embarrassed.
Personally number two, I'm fine with that outcome given his behavior over the past decade. There's nothing worse than embarrassment as punishment for arrogance.
Mark
There has to be a corker of a scandal waiting in those emails. If ther wasn't they wouldn't mind the judge seeing them and making his judgement on the contents. I do hope they'll be released before Christmas!
Unfortunately, as mentioned earlier, I feel that his comments (threat?) that not just academic careers will fall will be widely interpreted to mean that some of those who have politically aligned themselves with the Team's results will also be embarrassed by these emails. They know who they are, and if the tactic is being used, those people must be in a position to do something about it.
I would not be surprised if he wins this case, against all the obvious odds.
Talking of court cases, a number of Italian academics have been hauled up in court for failing to properly predict the 2009 earthquake around Aquila. As the warming fails to appear, wouldn't it be fun to see the Climatologists similarly hauled up in Court for professional negligence, misuse of public funds etc? After all, when this scare is finally all over, do we just sit back, reflect on the huge expenditures (never mind all the intellectual chicanery) and say, "Oh well, never mind"?
The Italian case is quite interesting. The line of defence seems to be, "Although we are experts, and paid as, and accorded the respect, experts deserve, your expectation of expert outcomes (ie correctly predicting seismic events) from us is itself inexpert." They look ripe for a transfer to the Climo Team!
Not quite the same thing.
I don't think academics should EVER be tried for academic errors. Subverting the processes of due diligence to hide your errors, yes, that's negligence, but just plain getting something wrong should never be a crime. We need to be careful to avoid going down a route of demonising scientists.
Mann's statistical errors are forgivable. I forgive him for making a mistake in an area (stats) not his own. What is unforgivable, unethical, but unlikely to be criminal, is the way that he has manipulated journals, the IPCC and the media to hide his mistakes instead of just Mann-ing up to them.
TheBigYinJames its not making the mistake it lying about when caught out which is this the problem, the real issue is that the Hockey stick is not a piece or research, for if it was just that it would easy enough to challenge and change if needed .
Its become an icon of the AGW faith and something for which there is great political need , the science has no little to do with the defense of the stick that is related to its symbolism.
The Italian seismologists are not being prosecuted for failing to predict an earthquake but for providing reassurance that proved false. http://www.nature.com/news/2011/110914/full/477264a.html. As I read it they didn't do that either but we'll see what the judge says.
John Whitman, Lucia and Don Pablo
Thank you for your responses.
Mann effectively saying he does not trust a Judge does seem to confirm the arrogance and self importance of the individual, though I suspect Don Pablo could explain it better.
I hope that his defence is thrown out, and that subsequent defences, of similar cases will then be treated with the contempt they deserve. Scott Mandia and others who have supported Mann financially, may regret their allegiance
Legal stuff. Mann should have sought to intervene at the beginning. Trying to intervene at this point is a Hail Mary akin to opening a closed case where a judgement has been rendered. I know of only one civil case, in practice, where this was allowed - and under extraordinary circumstances.
If the documents have the hint of smoking guns, we'll see another Christmas session akin to the Climategate Christmas season. Given the state of the economic and political environment, it may be the only thing to look forward to this year-end,
As to motive. Couple of thoughts: (1) While UVA and others were hard at work delaying there was no need for Mann to venture funds from his own pocket and (2) it's like how insurance companies handle cases - the longer it takes the further in the future a payout is made.
Don't forget, there's still lots and lots of activity in the Pols (Gore, Australia Carbon Tax, etc) that will just grind on provided there's no out and out fraud that emerges. Then, there's Solyndra. Maybe the second Christmas present this year.
If one may be permitted to come over a bit classical... "Methinks the Mann doth protest too much".
RoyFOMR/TheBYJ - I tend to agree, especially seeing how the UK Inquiries went. Maybe it'll be different in a court setting - in which case I can only hope that the judge will have his motivation tweaked by Mann's implied views on his integrity. Whatever is in the emails it is time to get them out into the light of day so the whole climate science debate can move forward.
It has crossed my mind that these emails must have been assembled and catologued by IT people at various points in time. I wonder what obligations of confidentialitly are in their contracts of employment? I'd guess they will be fairly watertight but I'd say it is pretty sure that these emails have already been seen by others outside legal circles. If Mann wins his case, and if their content is sufficiently potent, I wonder if we'd see a "Climategate2"?
It's amusing isn't it? Without realizing it, Michael Mann points a huge finger at just exactly what he is most ashamed of, that which he doesn't want the judge to read.
Oddly, I don't hear the note about others falling as a threat. I think he really thinks he still has the backing of the inchoate mass politico-economic movement he helped bring about, and simply can't imagine it failing him at this moment. Doubt, and cold, are powerful natural persuaders.
A year or so ago Bill Clinton called CO2 plant food. I thought it was the opening shot of the next Democratic Presidential Campaign. He only said it once, though, and lately he's been talking about suppressing dissent against 'settled science'.
Guv Perry has been most explicitly skeptical of the major American candidates. Palin herself, even three years ago, suggested man may not be as much to blame for climate change as has been made out.
We shall see, won't we?
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Er, Judge Oliver W. Wanger, your next witness to testify will be Dr. Michael Mann .....
http://green.blogs.nytimes.com/2011/09/21/more-interior-scientists-are-taking-heat/
Wow!
Copies of the Mann, D'Arrigo, Santer, Trenberth and Bradley letters are in body of the pdf file which is downloadable here -
http://www.atinstitute.org/wp-content/uploads/2011/09/9-2-11-memo-of-law-interve-pt-2.pdf
Suffice to say, they contrast vastly in spirit with that encapsulated in this recent comment, from another climate scientist-
'I don't have any objection to the publishing of these emails and so will ask that the university, on my behalf, recovers them for me. Assuming that I am able to recover them I will then post them here with the permission of my correspondents and the Bishop.'
So the truth must suppressed in order to protect reputations based on the likes of untruths, malpractice, and science fraud. That's just how climate science works, folks. What matters is reputations. The the truth - hrmph!, what an old-fashioned idea.
This reminds me of of the parliamentary 'enquiry' into Climategate declining to ask Jones a particular question, for fear that by answering he may incriminate himself.
Next we'll have courts declining to charge people for offences, for fear they'll find them guilty.