Attorney analyzes Michael Mann's frivolous legal threats

New SLAAPstick Courtroom Capers as Michael Mann Falls Foul Again

BY JOHN O'SULLIVAN  07/25/12

Media war of words erupts in anticipation of another global warming courtroom battle. We take time to see how latest events connected to Climategate’s controversial scientist Michael Mann stack up alongside Mann’s legal shoot out versus Dr. Tim Ball.

Last week Pennsylvania State University (PSU) popped back up on the notoriety radar thanks to lingering fallout over their jailed child sex felon, football coach Jerry Sandusky. PSU’s other alleged  bad boy, climatologist Michael Mann, came out with all legal guns blazing after popular right-wing writer, Mark Steynand the National Review wrote of the parallels in the “whitewashes” PSU investigations performed separately on Sandusky and Mann. The recent and hard-hitting Freeh Report is damning of PSU’s hierarchy.

With talk of more lawsuits flying, observers are now wondering how an earlier Michael Mann face off with Tim Ball is shaping up one year on. Readers may recall that Ball’s whimsy that Mann belongs in “the State Pen., not Penn. State”triggered the first of what now may become a series of desperate SLAAP lawsuits.

You might imagine plenty must have transpired by now up there in the British Columbia Supreme Court. But you would be wrong. Mann’s zeal for pressing home his action against his fellow climatologist appears to have waned. Some observers are even of the opinion that Mann is delaying the inevitable until Ball slaps one home between the pipes.

Today – despite being duly served with legal notices – Steyn and the National Review are taking a leaf from Ball’s book and not caving over their “Football and Hockey” article. Steyn has a reputation for being a tough enforcer capable of lighting the lamp in any SLAAP face off. So is Mann skating on thin ice with more time wasting dangles and dekes?

Steyn and others will no doubt take note of how Mann’s prevarications over Ball suggest he has finally realized he’s dug himself a humungous hole. I’m one of many who believes the Mann-v- Ball case will turn out to be a watershed moment for Mann. It’s most likely he will be compelled by the court to disclose his “dirty laundry” (as Mann, himself, refers to his hidden data in his Climategate email). If the hidden numbers are as bad as skeptics suggest then none of his friends in high places can save him.

So Steyn should take with a pinch of salt the “warning shot” from Mann’s lawyer claiming that a slew of official investigations “cleared” Mann of any wrongdoing in the 2009 Climategate scandal. Such claims are not what they seem.

Andrew Montford (read his ‘Caspar and Jesus’ paper)  is one such expert who deftly explains that those (non-judicial) “Climategate” inquiries fell well short of robust exoneration. This is because they all skirted around the unscientific behavior concerning Mann’s key hidden data. Unfortunately, for Mann he has made himself the plaintiff in this Canadian libel suit and cannot now duck the issue.

In the B.C. Supreme Court Ball’s attorney, Michael Scherr, has a clear run to perfectly demonstrate how climate “scientists” have been (and still are) withholding data that would help to resolve the climate controversy; we may say unscientific behavior, because hiding data makes it difficult or impossible for independent scientists/statisticians to replicate the claimed results.

As we know, Mann’s “dirty laundry” is the withheld r-squared correlation coefficient numbers for the “hockey stick” graph which McIntyre, Wegman,Cuccinelli and others have been desperate to see publicly examined but which Mann (and his university employers) have always kept under wraps. It’s not just the key evidence, but also Mann’s days that are numbered. This is because, as plaintiff in the action, Mann picked the worst possible jurisdiction to do legal battle over his “hockey stick” graph. This is for two key reasons:

(1.) The “Truth Defense” to Libel

Canadian courts offer the defendant in a libel lawsuit the unique opportunity to pursue the “truth defense.“ Ball has sagely opted to pursue that path rather than, for example, the “fair comment” defense. This is because the “truth defense” places a higher – more onerous – evidential burden on the parties. This means any and all evidence demanded by either party in the ongoing discovery process must be revealed. So effective can the “truth defense” be that some cynics refer to it as the “scorched earth” defense.

(2.) “Spoliation”: The Intentional Withholding/Destruction of Evidence

Since 2008 we can give thanks that Canada has beefed up it’s due process laws to punish litigants that intentionally withhold or destroy evidence (e.g. seeMcDougall v. Black & Decker Canada Inc.,[1.]). This means that Mann’s lawyer,Roger McConchie, cannot persist in indefinitely stalling over compliance with Ball’s motion to hand over those “hockey stick” r-squared correlation coefficient numbers.

Purposely prevaricating and failing to comply with this disclosure demand renders this omission to act a willful contempt of court (“intentional spoliation”) with serious repercussions. As such, due process rules entitle Ball to file a motion demanding the imposition of [a] punitive sanction[s]. Note: this is not discretionary but mandatory upon the court.

Such sanction[s] may include summary dismissal of Mann’s case with prejudice or, in the alternative; the court may grant what is termed an adverse inference jury instruction. This is a binding direction on jurors that they must find that Mann “intentionally spoliated” the evidence of the r-squared correlation coefficient numbers (i.e. with a sense of guilt Mann unlawfully withheld/destroyed his metadata).

(3.) A Legal Analysis

Be advised that as of July last year I have not assisted Dr. Ball in any way in this case so my opinion should not construed as necessarily the same as his or his counsel’s and we’ve had no discussions on the matter since. But to my mind neither of the above outcomes bodes well for Mann in other jurisdictions with regard to any possible subsequent legal proceedings. Firstly, this is because dismissal with prejudice will destroy what little remains of Mann’s credibility – even though he may get to keep his numbers hidden; while the second outcome sets a compelling and unequivocal international legal precedent  in other common law jurisdictions (i.e. U.S., U.K. Australia, N.Z). For example, a prosecutor in Virginia may then apply any such a Mann-v-Ball Canadian judgment as proof of Mann’s guilt to conspire to commit climate data fraud.

My guess is that Mann will go with the first option and let Ball win the libel suit without having to disclose the “dirty laundry.” But this outcome may only serve to buy Mann a little more time. But that’s probably the best he can do hereon in.

(4.) Case Background

Michael Mann apologists appear not to understand the issue. A brief summary of the historic background is thus helpful. Mann’s hockey stick graph first appeared to worldwide fanfare in 2001 when it became the battle flag for global warming crusaders of the Intergovernmental Panel on Climate Change (IPCC). It’s a 1,000-year  proxy (tree ring) reconstruction of past climates (proxies are used because thermometer records only go back 150 years). The controversy over Mann’s hockey stick graph is less a climatology question, but more an issue of plain, black and white statistical analysis. Thus any claim that only climatologists are “qualified” to weigh the matter is bogus. JoNova has an excellent article addressing the basics here.

Mann’s tree-ring proxy graph purported to prove modern temperatures were dangerously warmer than previous eras. Mann’s number-crunching had somehow managed to do away with the balmy Medieval Warm Period (WMP). Bizarrely, the IPCC immediately bought into Mann’s graph and quietly dropped their original version from 1995 with no explanation whatsoever.

IPCC Presentation of the Medieval Warm Period from their 1995 Report

Unusually, Mann refused to disclose key calculations for his flat-handled, uptick-bladed graph thus blocking independent scientists from fully checking their reliability. However, it wasn’t long before Michael Mann’s published work was falsified by McIntyre & McKittrick. McIntyre also destroyed Mann08, in which Mann used the Tiljander proxy – known to be corrupted [2.]

IPCC Replacement Presentation – Mann’s Version of the MWP (2001)

Retired Canadian statistician, Steve McIntyre and Ross McKitrick, an economics professor at the University of Guelph (M&M) thus came to the fore as the key critics of Mann’s methodology. Together they uncovered fatal flaws in both Mann’s statistical analysis and data interpretation. In 2005 this led M&M to publish a paper explaining the problems in Geophysical Research Letters.What was proven was that Mann’s methodology would generate a hockey stick regardless of almost any data input. This was because Mann numbers had been generating “Spectral noise,” One satirist, “Iowahawk” provided a primer on how to create a hockey stick at home, using a standard spreadsheet program.

Defenders of Mann claim that even if there are problems with his method or data set independent results from other researchers back him up. But as Andrew Montford’s ‘Caspar and Jesus’ study demonstrates, those third party statistical efforts to vindicate Mann actually raise more questions than they answer. But so much focus has been on Mann that his co-author of the hockey stick graph, Keith Briffa has managed to evade the same level of scrutiny. But as

McIntyre showed, Briffa was no less culpable. Briffa had claimed to have independent Eurasian tree-ring analysis that confirmed Mann’s results. But what he offered from the Polar Urals and Eurasian data from Yamal led to even greater suspicion because leaked Climategate emails proved Briffa’s claims about these were unreliable. Emails proved Briffa had been telling one story in public but another privately. A criminal prosecution was only averted due a technicality over the statute of limitations. British Information Commissioner’s Office (ICO) confirmed that the UK’s University of East Anglia at the center of Climategate scandal had indeed  unlawfully withheld and/or destroyed data. Further McIntyre examinations proved thatBriffa’s Polar Urals update would not show a hockey stick shape graph at all.

Absent a full release of all the evidence (which governments and university authorities appear not to want) the evidence in the public domain points to a clique of climatologists that conspired to cherry-pick tree ring data. It appears their purpose was to be bolster “evidence” for their belief of unprecedented warmth in our modern era due to human emissions of carbon dioxide.

Briffa and others secretly accepted that the data from modern tree ring analysis showed a poor match with temperatures. So if there is was poor reliability when compared with modern temperatures it is reasonable to infer that any conclusions drawn from them before the pre-thermometer era would also be unreliable.

What this means is that there is no persuasive proxy evidence from trees to substantiate Mann’s hockey stick graph – more precisely – there is no blade to Mann’s stick.

Conclusion

What does this all mean? For certain, bristlecone pines and larches are not accurate thermometers. Also, climatologists who persist in hiding their statistical data from independent review should no longer be given the benefit of the doubt and their findings should be treated with extreme caution.

If the British Columbia Supreme Court rules against Michael Mann and in favor of Tim Ball then there is a strong likelihood that Mann’s conduct in the tree ring controversy was malevolent. As such, it becomes increasingly likely he and others will face criminal investigation.

[1.] McDougall v. Black & Decker Canada, Inc.; 2008 ABCA 353; October 2008

[2.] McIntyre, S., McKitrick, The M&M Project: Replication Analysis of the Mann et al. Hockey Stick; (accessed online: July 25, 2012)

See also Steve Goddard's History of how the hockey stick was manufactured