Tuesday
Aug052014
by 
Bishop Hill
Bishop Hill NRO's brief goes online
Aug 5, 2014 Climate: Mann The National Review's opening gambit in the Mann libel case has been published. It's a useful reference document, presenting a very accessible summary of the case and the legal issues. It's not flawless - the "hide the decline" data truncation is ascribed directly to Mann, and while there is a case to be made that he played a part in the similar shenanigans prior to the Third Assessment Report, it was Phil Jones who prepared the cover of the WMO report.
Reader Comments (22)
Hide the decline appears in the document in a quote directly from Phil Jones - I don't see how they are ascribing this to Mann.
It's an interesting read, one would think Mann hasn't got a leg to stand on. But he and his lawyers are not idiots, so it will be interesting to see what they come up with. Surely even the most venal lawyer would tell you if your case stood no chance? Much as they want the fees, isn't losing bad for business too? Or does the lawyer watching community focus more on the skill of the player rather than the outcome of the match?
Looks like typical lawyer-speak to me:
'Critics disagree, arguing that the hockey stick should have included the post-1960 proxy data to give a more full and accurate picture: since modern instruments have shown tree-ring proxies to be inaccurate after 1960, they say, this also calls into question the reliability of the proxy data from earlier years, where no thermometer readings are available to provide an independent check.'
Is this arguing both that the data known to be bad should have been included (how would preferring tree-ring reconstructions to thermometers possibly give 'a more full and accurate picture'?) and that it shouldn't?
Since they will only be arguing with other lawyers I not sure it's worth trying to untangle.
"Hide the decline appears in the document in a quote directly from Phil Jones - I don't see how they are ascribing this to Mann."
Who's 'Mike', do you think?
JK - no it's not saying that. It is saying that this is exactly what they (Mann et al) have done - eliminated the inconvenient data while trusting the unverifiable data.
They (Mann et al) can have it either way - trust the thermometers or trust the trees - but what they have done is trust cherry picked parts of both.
NiV, that's Phil Jones ascribing the trick to Mikey, not this legal brief ascribing it to Mann. I fail to see where this document itself ascribes it to Mann.
i am surprised this NRO brief does not use the Wegman report
http://www.uoguelph.ca/~rmckitri/research/WegmanReport.pdf
Nor Richard Muller's comments
http://www.youtube.com/watch?v=U5m6KzDnv7k
"NiV, that's Phil Jones ascribing the trick to Mikey, not this legal brief ascribing it to Mann. I fail to see where this document itself ascribes it to Mann."
It doesn't exactly, although it does describe the WMO cover as "the Hockeystick" and Mann's work, which is not the full story.
I was also disappointed to see no mention of the r-squared controversy, which is probably the best case for making the 'fraudulent' claim plausible. Other stuff like short-centred PCA can be explained by incompetence, but the damning stuff is in the claims Mann made that are not only not true but which he must have known not to be true. The r-squared cross-validation test was the main one in the scientific literature. Mann's post-McIntyre claims to try to muddy the waters and shore up his credibility provide a rich source for more. (e.g. that McIntyre asked for the wrong data.)
I'm not sure if they're saving that for later, or if they decided that it's too complicated/risky to dig into in court. If the latter, that's a shame.
I don't think they make a very strong case, and I wouldn't be at all surprised if they lose. So some people called McIntyre, McKitrick, Montford have criticised Mann's hockey stick, and they quote the "hide the decline" email that is well known.
Much more convincing would to mention the criticism of Mann's work made by other climate scientists in the emails, such as
"Mike only likes these because they seem to match his idea of what went on in the last millennium,"
"the Mann/Jones GRL paper was truly pathetic and should never have been published."
"I have just read the M&M stuff critcizing MBH. A lot of it seems valid to me. At the very least MBH is a very sloppy piece of work"
"Mike is defending something that increasingly can not be defended"
"I don't think we can say we didn't do Mann et al because we think it is crap! "
and many more in this style.
Looking at the comments above, it's clear that strong arguments were not included. However I'm not sure that these are appropriate at this stage. The arguments above are mostly 3rd party arguments that would need to be backed up by a witness - while at this stage they are arguing points of law and whether the case should be put to a jury.
At this stage it seems appropriate to argue acknowledged facts (such as the PCA issue) rather than muddy the water with opinions.
"At this stage it seems appropriate to argue acknowledged facts (such as the PCA issue) rather than muddy the water with opinions."
I don't know. Has Mann ever acknowledged the PCA issue?
Regarding 'hide the decline', ClimateGate 2 e-mails revealed some additional email in this exchange between Jones and Mann.
Regarding 'hide the decline', ClimateGate 2 e-mails revealed some additional email in this exchange between Jones and Mann.
Nullius
In his book he describes it as a "modern" version of PCA. And still mainstream climatology stands by him.
The whole point of the application is that the courts (and in particular, jurors) are not the right forum for deciding on the validity of Mann's work. This is a procedural application based on the right of free speech enshrined in the constitution. On the face of it, it looks pretty compelling.
However, the real point here is that the very fact that Mann has brought this action, and has had some support in the lower court, will have a 'chilling effect on free speech'. It is essential that he does not succeed.
Mann's role in "hide the decline" comes through his role as IPCC Lead Author in the truncation of the Briffa reconstruction in AR3. The pleadings had an opportunity to say this more clearly and ought to have done so.
The difficulty that the lawyers seem to experience in clearly expressing facts that are well known to dozens of blog readers should give pause to the various readers (especially WUWT) who look to legal discovery processes as a way of getting to "facts" of this matter. It's hard to pin down somebody like Mann without a sure grasp on the details - not easy for anyone, let alone on a finite number of billable hours.
At the end of the day, I think that the most salient legal issue will be one that will not satisfy either side of the dispute - whether the various inquiries which Mann claimed as exonerations in his argument purporting to show "actual malice" (as defined in US libel law - which is more or less, saying something that you knew to be false - as opposed to bearing malice) did not actual exonerate him, as I've discussed for a number of the inquiries at CA and could do so for the balance. Deciding on these grounds would not result in a gotcha moment against Mann, but neither does Mann, in my opinion, have any reasonable chance of overcoming this hurdle, which is very hard for US public figures, as Mann has conceded himself to be.
"exonerated" Mann.
"At the end of the day, I think that the most salient legal issue will be one that will not satisfy either side of the dispute"
I agree. I suspect it will most likely be decided on obscure legal technicalities rather than any sort of dramatic court-room cross-examination like the 'Scopes monkey trial' some have been hoping for.
I'm not a lawyer, but I would still think this sort of thing is worth going into. Nailing down Mann to any sort of 'gotcha!' is unlikely to happen, but I don't think it's really necessary. The main thing would be to show that it could reasonably held to be plausible that Mann's work was 'fraudulent' in a non-legal sense, and that the defendants could therefore have genuinely believed that. As soon as you've got strong plausibility, even without proof, it can no longer be claimed that one either knew it to be false or was reckless of whether it was false or not. You don't have to persuade the judge the disputed claim is true, you only have to persuade the judge that you believed it was true. Having prima facie evidence of someone probably having lied about their work should make a libel claim nearly impossible.
Mann's primary line of attack seems to be that the enquiries exonerated him, so the defendants ought to have 'known' it was false. But since the only Climategate enquiry to address his work directly was the Penn State one, and Penn State also enquired into and cleared Sandusky, their credibility in such matters where they have a clear financial conflict of interest is perhaps somewhat suspect. That the defendants had thought this cannot be disputed since that was exactly what the offending article was about. And of course there are other, better reasons for doubting the 'exonerations'. So given that the enquires were no reason to think his work was not fraudulent, were there any good reasons to think that it was? And this is where we come to the trail of Mann's 'controversial' statements throughout the Hockeystick wars. If they go anywhere beyond mere incompetence to deliberate deception, at least on a plausible reading of them, then it becomes reasonable to believe that the defendants genuinely believed Mann was being deliberately deceptive, and not recklessly.
Of course, doing so raises the reputational stakes enormously, for Mann, and he'll fight that one like anything. Whereas if NRO can make the suit go away on pure procedural/free speech grounds, Mann will likely mutter a bit about the unfairness of the legal system but let it go. Indeed, he'll likely soon claim to have been exonerated again.
Steyn is another matter. I think he's hoping to have that Scopes showdown, and win or lose, it'll probably be more informative.
Steyn hasn't once referenced the most devestating hockey stick team fraud of all time, the bladeless input data of Marcott 2013, something that defeats all attempts to claim controversy as mere ancient history:
http://s6.postimg.org/jb6qe15rl/Marcott_2013_Eye_Candy.jpg
I just don't get it. I've mostly given up on skeptical activism since skeptics are fools.
As some have noted this is still primarily a procedural filing, and the defendants are trying to get the higher court to recognize that the anti-SLAPP law should have been invoked by the lower court judge, with dismissal of Mann's case. As such, they do not (yet) need to litigate all key aspects, they need to keep in sight the main point of their arguments, in legal terms now.
Also, saying they should invoke the Wegman Report or climate scientists in the emails may be very problematic in a legal setting, since both moves would allow Mann's team to emit buckets of oily black tar ("Wegman Report plagiarized, climate emails were illegally stolen" etc.). No matter how bad and irrelevant Mann teams responses would be, in a legal proceeding they might well lead to judges waving away arguments of the defendants.
Even though Mann & co. will also try to impugn the critics cited such as McIntyre, McKitrick, Montford, et al., they may be on stronger ground with the court, harder to sweep away entirely etc.
Finally, in terms of the ultimate case (though I am not a lawyer), in terms of US libel law it ***ought*** to come back to a huge almost overwhelming burden of proof on Mann, to prove that Steyn and the other defendents acted with "actual malice" i.e., not only said wrong things about Mann and fraud etc., but KNEW they were wrong.
The main point of citing publications and reasonable critics through the briefs is to establish that it's not unreasonable to think that NR, Steyn et al. really believed what they published is true. Also, in the case of NR they emphasize that there was no prior editing of an independent blog piece, although I don't know how that could matter in legal terms once they stood by the piece and didn't retract in the face of Mann's onslaught.... (and ofc much of the material which upsets the Manniac really falls under parody, satire, and public political criticisms toward a "public figure" in the arena, which should merit the maximum protections of US libel law).... NR, Steyn et al. need not prove they are "right" in the substantive issues.... they only need prove that they did not proceed ***knowing*** they were wrong, and going ahead with publication anyway.
embarrassing, I scanned the thread too fast and did not realize that Steve M. had already emphasized some of what I wanted to say (probably because I've seen him say it first and better in the past at CA!)
I will leave my comment as is but with this "unlimited" hat tip to Steve McIntyre, as always!
p.s. maybe I can add a quote from Craig Loehle, on the WUWT thread on this topic, since he indicates a way in which the defense legal teams ought to be able to void any claims of "actual malice" right from the start:
[emphasis added]
p.p.s. I hope that McIntyre, McKitrick, Montford, and others most thoroughly on top of all these issues will consider providing outlines and argument summaries to the defense teams (maybe this is already being done)..... Mann really needs to be stopped, at the very least in these obnoxious SLAPP lawsuits and libel charges, else he will never be called to account.
Excerpt from the National Review
http://www.nationalreview.com/sites/default/files/NR_Opening-Brief.pdf
Steve McIntyre said:
The difficulty that the lawyers seem to experience in clearly expressing facts that are well known to dozens of blog readers should give pause to the various readers (especially WUWT) who look to legal discovery processes as a way of getting to "facts" of this matter. It's hard to pin down somebody like Mann without a sure grasp on the details - not easy for anyone, let alone on a finite number of billable hours.
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Exactly.
It is always a bit sad to see people who have faith in the courts to settle scientific issues. That's not how it works, especially in civil cases For instance, there are still many people who think that the US Supreme Court decided that CO2 is a pollutant. They didn't - they decided that the EPA had the power under the legislation to declare it such.
Steyn worked this out a long time ago, and is taking a different (and I would bet more successful) tack with his countersuit.