13 July 2010

Cuccinelli's Fishing Expedition

The latest salvo has been fired in the ongoing legal battle between Kenneth Cuccinelli, Attorney General for the State of Virginia, and the University of Virginia over Michael Mann's email records (background here and here). In a brief filed today in opposition to the University's petition for dismissal (PDF), Cuccinelli does the following:

1) Fails to show that there is any prima facie evidence of fraud, at best only fudge, and really, only that Mann's work has been contested. Oddly, Cuccinelli cites the various recent reviews of the implications of the released East Anglia emails, none of which presented any evidence of fraud associated with the work of Mann. Does he really think that those reviews support his case?

2) Reveals that the University has no emails in any case (interesting factoid, but not relevant to the current petition)

3) Essentially admits that he is on a fishing investigation by trying to invoke a Catch-22 (p. 16):
The distinction between relevant to an investigation as opposed to relevant to a violation is significant.
What Cuccinelli is in effect saying here is that even if he doesn't have any real evidence to suggest that a violation of Virginia statute has occurred (see #1 above), the important criterion is if the information that they have asked for is relevant to an investigation. And of course, they have opened an investigation. Simply by opening an investigation means that they can demand information relevant to that investigation. If it sounds like a Catch-22 that is because it is.

Cuccinelli cites previous case law as follows (p. 17), to suggest that they don't need to show that a violation has occurred to request the information from the university:
The “reasonable cause” standard requires less than the probable cause standard and does not require a showing that a violation has in fact occurred.   As stated by the Commonwealth, “[a]t this point in the investigation it is not necessary for the Commonwealth to prove that any customer has actually been deceived;  that is to be established at trial. . .
What, you might ask, comes after the ellipses (and was not included by Cuccinelli in his brief)? The following rather important qualification:
Rather, what is important is that the Commonwealth has made its prima facie case of reasonable cause to investigate.
Cucinnelli has not, in my inexpert opinion, established a "prima facie case of reasonable cause" -- far from it. Cuccinelli argues that his lack of proof is what justifies the investigation. Good luck getting that bizzaro logic and misleading application of case law past a judge!

What more do you need to know to see that this is pure and simple a fishing expedition?

4) Shows without a doubt that he has no clue as to what "post-normal science" actually means it practice. It does not mean fraud. (Misinterpretations and misunderstandings of post-normal science appear to be shared across the political spectrum.)

I am not a lawyer, of course. But I'd be very surprised to see a Virginia court rule in favor of Cuccinelli.


  1. I think you are mistaken to go so far out on a limb here, given that you are NOT a lawyer.

    Before getting to issue whether there is a crime, there is an investigation. The AG has asked for records.

    One step at a time.

  2. Roger,

    Page 6 of the brief is clear, this is not a criminal investigation, it's a civil investigation.

    The legal bars in civil investigation are almost non-existent.

  3. So the AG is not empowered to review records?
    How odd.
    Frankly the look at the institution of science over this past year, thanks to climategate, shows the institution you are part of in a very bad light: arrogant, self-declare elitists, assumption of authority in all matters, circular arguments, evasive and resistant to full disclosure.
    It is incredibly annoying for publicly funded scientists who receive very generous tax payer support, work at tax payer funded schools, labs and universities, and whose work product exists on publicly funded servers and computers, to act outraged that when there are significant questions about their someone wants a look at what they are doing.
    Since as you have pointed out each of the so-called reviews led by members of, or people approved by, the science community have prodcued nothing but misleading studies that have not answered the relvant questions, it is not really appropriate for you to codemn the elected person authorized to do what scientist have declined to do.
    It is obvious that unless the power of the law is brought to bear we will never discover the context of the climategate e-mails. that we will never see if in fact Mann and pals have followed the law and behaved ethically.
    Unless you are satisfied wiht whitewashes?

  4. -2, 3-Harrywr2, FFaS

    First, take your legal interpretations from a political scientist with some caution;-)

    Second, I do think that the petition will be upheld, making the result even more embarrassing for KC, given the comments that you have made.

    I could be wrong, we'll know next month!

  5. Roger,

    KC doesn't care about Mann. KC cares about EPA's endangerment finding. The EPA's endangerment finding was based almost entirely on the IPCC report.

    IMHO The correct framework to see the KC actions relative to Mann is similar to a DUI case where Mann is the manufacturer of the breathalyzer. The DUI defendant's lawyer doesn't care about the breathalyzer manufacturer at all. He is just looking for a shred of evidence that the breathalyzer could possibly have had a manufacturing defect or could have been improperly calibrated so he can get it thrown out as evidence.

    Every year thousands of DUI cases get thrown out because some lawyer somewhere finds some area where the breathalyzer doesn't meet an applicable standards.

    3 things can happen
    1) KC Audits Mann's work and finds no fault(KC Loses)
    2) KC Audits Mann's work and finds fudge(KC Win's, fudged breathalyzer records make the breathalyzer results inadmissible)
    3) KC is denied the ability to audit Mann's work(KC Wins, the breathalyzer results can't be admitted into evidence if the manufacturer refuses requests for discovery)

  6. -6-Harrywr2

    I agree with this analysis except for #3. That would mean that KC loses, and the breathalyzer results are admitted (how can it be otherwise??)

  7. Roger,
    My point is that the issue is much larger.
    Is science now like the Catholic church, hoping that it can shield itself scrutiny by way of its magesterium?
    That is what you are in effect supporting. How has that worked out for the Catholic church?
    Here is another tack: Please tell us how a true review, with power to demand evidence and compel production, should look?
    My main point was that it is obvious clmate science does not have the ability do this. so who does what must inevitably be done?
    Or, as an interpretation of what you have written could conclude, do you think science has a special exemption?

  8. -8-FFaS

    I don't understand your question(s)??? What is it that you'd like to review? Is it certain scientific findings?

  9. Roger, I would like an actual review to be done: All the related e-mails that were not leaked, for starters.
    The data, the receipts, the bills, the communications. How were they dealing with the hide the decline issues at the time?
    The thin samples of leaked e-mails only show a bit. Context is everything. If I had been, as Mann aserts so strongly, falsely accused, I would want any damning statements put in context. Instead Penn state literally whietwashed the review- they dismissed tmost of the claims and heard from no one, and requested more data not at all.
    Did Mann follow applicable state standards for the money he received from the people of Virginia for his research?
    It is obvious by now- and Atlantic Monthly has a nice article on this, btw, that the science estaablishment is not capable of doing a credible review of themselves at all.
    so if you are so against the AGW doing his job, can you please tell us who should review this?

  10. it appears that there is a lot of confusion about the basis of the investigation, the request for information (CID), and the petition to avoid supplying the info.

    The threshold of when it is appropriate to ask a government funded institution for information on how government money was spent is very low. As it should be.

    Roger, you say Cuccinellis "Fails to show that there is any prima facie evidence of fraud" and are surprised that he mentions the other investigations.

    This is NOT a criminal charge. This is not even a civil lawsuit. It is a preliminary INVESTIGATION to see what action, if any, should be taken.

    By the logic of some posters, auditors shouldn't audit a company's books unless they have clear, prima facie evidence of fraud.

    The other investigations show that there is a general suspicion of something fishy having been done, while funded by government money, even if the Penn State investigation exonerated Mann of the particular items they reviewed.

    My prediction is that U of Va will have to cough up the documents, but that the Attorney General won't proceed with any action after reviewing the info.

  11. Mann and Cuccinelli deserve each other. Let's hope the documents are made public. Because it will be interesting.

  12. Off topic but related. Report of Guardian public Climategate debate. Hopefully it will be of interest.

    Doug Keenan, unlike almost every other scientist, doesn't need a salary to feed himself. I assume it was his his comments which were removed from the audio for legal reasons (mentioned on another Guardian page). He also claims to have uncovered a major climate fraud in the USA.


    However probably the largest applause was gained by Steve Mcintyre of the well respected site Climate Audit who has worked so relentlessly to expose false science; and by blogger & independent researcher Doug Keenan who steadfastly maintained the position that CRU scientists had engaged in scientific FRAUD – in the face of veiled threats from the chair.


    Audio here