Balkinization  

Monday, August 30, 2010

Update on UVa

Sandy Levinson

Readers may recall that Virginia Attorney General Kenneth T. Cuccinelli, II, a rabid right-winger eager to use his office for political advancement, issued draconian "Civil Investigative Demands" to the University of Virginia with regard to the research on global warming of a former professor at UVa who has long since departed for Penn State. The University resisted the demand on both technical and broad constitutional grounds. Today Judge Paul M. Peatross, Jr. of the Sixteenth Judicial Court of Virginia issued a six-page letter completely dismissing the CIDs issued by Cuccinelli on the ground that he shown no objective "reason to believe" that the University in fact possesses any "materials relevant to a false claims law investigation" and that he also did not state "the 'nature of the conduct' with sufficiency to satisfy the requirement of the statute." I.e., the Attorney General is not given power by the statutes of Virginia to enage in what is the equivalent of a sweeping general warrant based on nothing more than his own ideological zeal and belief (even if sincere) that something was amiss. The CIDs were dismissed "in their entirety without prejudice," which means that Cuccinelli can presumably take another bite of the apple if he can come up with plausible evidence supporting his ideological zealotry. At that point, the profound questions involving Prof. Mann's academic freedom (and, even more certainly, the freedom of each and every one person who has communicted with him and comes under the terms of the remarkable CIDs) might well become relevant, though Judge Peatross went out of his way to offer a narrow and basically technical decision. (Among other things, the Virginia AG has no jurisdiction to investigate alleged fraud with regard to federal, as against state, grants.)

This is a good day for civil liberties and academic freedom, though it does remain to be seen whether it really brings the case to an end, given Mr. Cuccinelli's patent zealotry and his disregard for academic autonomy. (Recall that Prof. Mann has been the subject of at least two investigations by his academic peers, both of which found no substance to the allegations brought against him by anti-global warming zealots.)

Comments:

I don't think it's so narrow. For example, the court makes the point that the AG is only empowered to investigate fraud in the application process itself, as opposed to so-called academic fraud (i.e. you got the grant money legitimately, but then fudged your findings).
 

Sandy:

I do not see the comfort you are deriving from this opinion.

Sec 4: The Court acknowledged and then blew off the university's weak academic freedom argument, holding that the AG has the right to investigate any VA funds paid to Mann if the other elements of the statute are met, none of which provide an academic freedom discovery shield.

Sec 5: The Court further held that the CID could require the production of any information contained in the application for VA funds and any information provided by or to Mann which relates to the approval or payment of funds to Mann during the period of the grant. This is hardly the narrow inquiry the UVa requested under its academic freedom argument.

In sum, the Court granted the AG a second full bite at the apple if he provides detail as to the suspected violations and materials he is looking for. This should not be difficult. Just extrapolate from the research of the already established Mann hockey stick fraud and the emails related to Mann in the Climategate dump from CRU.

Surely, the VA AG's office has an attorney with some experience writing complex warrant applications.
 

Once again our yodeler searches for the pony in the pile. He suggests " the Court granted the AG a second full bite at the apple ...." But, by gum, the AG lacks teeth. My response to his "hockey stick fraud" is "PUCK YOU." (Old joke punchline to: "What did one hockey stick say to the other hockey stick?")
 

I do not think the academic freedom argument is weak. It is weak if the claim is that academics are absolutely immune from fraud statutes if they commit the fraud in the course of their work.
It is strong if it is used as support for the view that before the AG launches a fishing expedition into a sensitive area (the academic's research), a strong showing must be made of the probability of success (a showing that would be extremely unlikely in this context given the findings of peer groups). It is hard to avoid the view that the AG's investigation is motivated by a political agenda.
 

Steve closes with this:

"It is hard to avoid the view that the AG's investigation is motivated by a political agenda."

While the judge's ruling against AG Cuccinelli was "without prejudice," the same cannot be said of the AG's motivations.
 

Steve S:

The academic freedom argument is primarily based upon a single case - Sweezy v. New Hampshire - which held that a legislative investigation violated due process because the government did not have a compelling reason to discover a professor's political speech. The university quoted dicta about the importance of academic freedom was not the basis for the opinion. Sweezy shares nothing in common with the fraud investigation of Mann apart from the fact that they both involve investigations of professors.

Indeed, how precisely does producing the sources, methodology and communications concerning an alleged scientific analysis in any way chill academic freedom? Apart from perhaps communications, it is a fundamental principle of scientific research that the scientist claiming to prove a hypothesis is supposed to make his data available for others to replicate the proof. Mann has a long history of refusing such disclosures.

The UVa's position appears to be that only it can police its own professors, a task its whitewash "investigation" of Mann declining to review anything which occurred outside of the university showed it does not take very seriously. This is analogous to the CO bar during a bar background investigation refusing to review accusations that the attorney seeking entrance defrauded clients in NY.

If an attorney defrauded his or her client, both the bar and law enforcement would be properly investigating the complaint. Why should Mann's alleged fraud against the tax payers of VA be any different?
 

Perhaps our yodeler has experience with this yodelism:

"If an attorney defrauded his or her client, both the bar and law enforcement would be properly investigating the complaint."

Then he tacks this on as flowing therefrom:

" Why should Mann's alleged fraud against the tax payers of VA be any different?"

The relationship between an attorney and the bar is sort of unique (a tad different from that of a state AG and a public university). The bar's investigation may be subject to various limitations, including attorney/client privilege. Can the bar issue a subpoena without a sound basis, so as to permit a fishing expedition? I don't think so. The bar has to have a basis beyond a mere allegation.

Perhaps it can be alleged, as Steve S. has suggested and I have openly stated, that AG Cuccinelli's motivations are purely political; that perhaps the AG should be investigated by a special counsel regarding his motivations. With the judge's "without prejudice" ruling, let the AG belly up to the bar (of the Court) with allegations of substance beyond casting a broad net. The AG needs more bait than his breath. Patience, yodeler, patience.
 

Bart,

Simply lying is not an argument. Please provide proof of the claim that Mann has "a long history" of refusing to provide his methodologies and data.

Such claims were made -- and were debunked. Repeatedly. Thoroughly. By separate credible committees.

Even those who disagree with Mann's methodology now agree that, accepting the data as given, and using the methodologies he describes, you end up with his results. See, for example, here for a discussion. The money quote: "the hockey-stick shaped pattern is in the data, and it’s not just noise it’s signal."

The title of the piece linked, by the way, is "The Montford Delusion", which is quite apropos of both your and Cuccinelli's belief that there's some way to prove fraud.

Not that I expect this to stop Cuccinelli. Of course, actually proving fraud is not the goal here. This is all about intimidation and getting elected to higher office on his part and the mindless twitching of recalcitrant nerve cells in the cranial cavities of those who have doubled down and redoubled down on an erroneous belief and now cannot allow themselves to become aware of reality.
 

Shag from Brookline said...

Can the bar issue a subpoena without a sound basis, so as to permit a fishing expedition? I don't think so. The bar has to have a basis beyond a mere allegation.

Generally, the complaintant in a bar action against an attorney may conduct broad civil discovery through a bar subpoena based on little more than an accusation.

In a criminal fraud investigation against an attorney, the normal probable cause standards for a search warrant would apply.

The CID administrative process is appears to fall in between these standards.

BTW, the attorney client privilege resides with the client, who would normally be a complaining witness willing to waive the privilege in either a bar or criminal investigation.
 

C2H50H:

The indispensable Senator Inhofe offered this linked overview of Mann's obstructionism.

The VA AG would be well advised to extensively cite to the evidence offered in the link above in its next CID.
 

Blankshot, there's a reason the AG doesn't cite the Inhofe "evidence".
 

Inhofe is citing to Mann's own email admissions and the Wegman report by a committee of professors commissioned by Congress.
 

Bart,

Yes, Inhofe is certainly in-something.

A judge -- or anyone with any semblance of rationality -- would have to be delusional to be convinced by that barrage of cherry-picked, dated, and debunked trash (of anything but the insanity of the author).

In addition, these out-of-context quotes have been examined by several groups with a lot lower standard of proof than a court and have found nothing behind them. This is old, in the sense of three-week-old roadkill.

Perhaps a truly brilliant lawyer could construct a case in spite of the fact that there is no evidence of fraud. But then someone brilliant and at the same time utterly delusional is very rare.
 

Here's a yodelism that calls for the citation of authority:

"Generally, the complaintant in a bar action against an attorney may conduct broad civil discovery through a bar subpoena based on little more than an accusation."

Various bars are autonomous. So "Generally ... " does not cut the mustard. Also, is the weapon of broad discovery that of the complainant? Is our yodeler suggesting that the complainant may require the bar to issue a subpoena "based on little more than an accusation"? Perhaps our yodeler can cite authority for such a potential fishing expedition.

Our yodeler also notes:

"BTW, the attorney client privilege resides with the client, who would normally be a complaining witness willing to waive the privilege in either a bar or criminal investigation."

Yes indeed, the privilege so resides. But the "complaining witness" to the bar need not be in a client relationship with the attorney complained of. Even where there is such a relationship, there are delicate issues involved with a waiver that just might not be in the best interests of the client and the attorney has to take care that the waiver is complete. These things can be tricky.

But it was our yodeler who made the comparison of an attorney and a bar with the situation involving AG "Cucaracha", in effect trying to drag a herring across the matter.

So let's see if the AG takes advantage of the "without prejudice" ruling of the judge. Patience. Let's see if AG "Cucaracha" can stand the heat in the legal arena as much as he can stand the heat of global warming.
 

I have lost count of how many record high temps we have seen this year. Virtually every month has been the warmest ever recorded (I believe February was only the 2nd warmest ever recorded). The global warming deniers look more delusional with each passing day.
 

C2H50H:

A criminal search warrant only needs probable cause which can be based upon the testimony of a reliable third party witness. Mann's own email admissions provide more than probable cause to believe that his work is fraudulent and he is hiding information about that work.

The CID is a civil administrative subpoena and does not even require probable cause. All the court's order requires is a basic description of the allegations against Mann and what information could reasonably support these allegations.
 

Shag:

As you noted, bars approach subpoena power differently. In Colorado, the investigator of the allegation has full civil subpoena power, the threshhold for which is extremely low. CRCP Rule 251.10. Investigation of Allegations
 

Bart,

First, there are very few papers in the modern era which have been examined, re-examined, and re-re-examined than the paper which found the "hockey-stick" temperature curve. To imagine, as you do, that there was anything "hidden" by the authors in the research on that paper is simply crazy.

Second, in order to introduce emails as evidence, you would have to definitively prove that they are, in fact the emails in question -- a problem, since they have no real provenance.

I understand that, for you, third-hand hearsay is sufficient for you to be certain that your pre-conceived notions are factually-based, but I would hope that even the dimmest judge would be more cautious before allowing a witch-hunt.

I imagine your presentation to the judge would go something like this: "Look at these emails we got from a Russian hacker! If you cut out phrases from them and paste them in this order, then turn the result sideways and squint ... no, squint harder! ... you see? Definitely a conspiracy."

You apparently cannot be bothered to actually check the literature, but, as the citation I showed above shows, the "hockey-stick" is now an accepted part of reality. It would take a supremely god-like lawyer to prove that reality is committing fraud.
 

Mann's own email admissions provide more than probable cause...

Probable cause shmobable cause: where is the crime? When you write a grant for any kind of funding, you have to provide information about the methodology you are using in your project and that methodology is reviewed by a committee of your peers.

Furthermore, Mann was only a P.I. on two of the grants in question--one a NSF grant, the other an NOAA grant, neither of which fall under the jurisdiction of Virginia. That means the responsibility for any methodological concerns in the other grants, including the sole Virginia-based bit of funding, should lie with people other than Mann.

There is also a substantial difference between "show me your data" and "show me the entire contents of all of your hard drives, and those of your academic department, IT department, and anyone else you've ever sent data to." You can't do science--or any other job, for that matter--with that kind of (pointless) interference.
 

C2H50H:

We are discussing an investigation and not trials. The emails I suggest be cited in a beefed up CID need not be themselves admissible at trial or even relevant to the allegations that Mann defrauded VA. They can be offered as grounds to believe that Mann's MO is to conceal evidence of his misfeasance unless compelled to produce it by the CID.

As to the breadth of the CID, the court has already narrowed the discoverable documents to those related to the grant application and the work done with the grant. This is reasonable.

Mann's attorney(s) can redact anything they consider outside that scope and offer a privilege sheet offering their grounds. Then you get into the tug of war over what is privileged, with the court and maybe the attorneys reviewing the documents.
 

Bart,

Of course, if all that is required to have an "investigation" complete with subpoena power is mental indigestion on the part of an AG, that would be an egregious example of tyrannical government. Your cheering it on would appear to be a tad inconsistent.

On the other hand, if the AG must specify what "fraud" might have been committed, then he's going to have an incredibly difficult task. Michael Mann's results have been replicated independently, after all. Even someone with very limited understanding of science should understand that that is the gold standard for science.

I would think that the law should come down on the side of reality, but then, I'm not a lawyer.
 

As to the breadth of the CID, the court has already narrowed the discoverable documents to those related to the grant application and the work done with the grant. This is reasonable.

No. The court narrowed the scope to information contained in the grant application and information pertaining to the payment or approval of grant funds. In other words, the court correctly recognized that the fraud has to be part of the grant application itself. Allegations of academic fraud in performing the study or publishing the results are outside the scope of the investigation.

Of course, none of this matters unless the AG can cure the serious defects in his position, like the fact that four out of the five grants were federal and not state, and the fact that the fifth grant was awarded before the statute which authorizes the subpoena went into effect. Unless the AG has time-traveling powers or can show that he has the authority to investigate on behalf of the federal government, good luck to him.

One can only admire the lengths to which AG Cuccinelli went to argue that he has the authority to investigate federal grants: "The Attorney General argued on August 20, 2010 that funds paid to Dr. Mann by a federal grant and placed into a University of Virginia bank account became funds of the Commonwealth. This Court disagrees. The Attorney General can only investigate funds paid by the Commonwealth for a grant to Dr. Mann." I mean, seriously. A more fruitful investigation might involve the existence vel non of Cuccinelli's law degree.

Mann's attorney(s) can redact anything they consider outside that scope and offer a privilege sheet offering their grounds. Then you get into the tug of war over what is privileged, with the court and maybe the attorneys reviewing the documents.

Speaking of questionable law degrees, this misstatement of the law is a hoot. Privilege logs are for documents that are within the scope of a request but are subject to the attorney-client privilege or similar. Privilege logs are not for documents that are outside of the scope of the request altogether. If Mann's attorneys have documents that are outside the scope of the subpoena, as modified by the court, then they are under no obligation to produce them, list them in a privilege log, or do anything else. Because they're outside the scope, get it?
 

AG "Cucaracha" seems to be playing a child's game of "You show me yours, and I'll show you mine."

Perhaps AG "Cucaracha" is emulating the late - and often drunk - Sen. Joe McCarthy. Or perhaps he is a Charlie McCarthy for those who don't mind the heat of global warming as that will prepare them for the heat of their destiny, since heaven is obviously out of the question for them.
 

It is amusing that the same folks who were demanding the disclosure to the enemy of top secret documents describing the means and methods of intelligence gathering are equally passionate in their support of Mann concealing his "science" from the taxpayers who pay him.
 

Yes, Bart, sure, just as you say, no scientist would want Mann and his co-authors to publish, in peer-reviewed journals, his science. In bizarro world, where you apparently live.

What I'm still waiting to hear is exactly what you or Cooch thinks was fraudulent about the science. Your inability to swallow the facts is evidence, but not evidence of a conspiracy on Mann's part.
 

As usual, when Bart is proven flat wrong on the facts and the law, he just invents another argument and keeps right on trucking. No credibility left to lose at this point, I guess.
 

It stuck in my craw to refer to the AG by name as it sounded close to (Tony) "Cuccinello," whom I fondly remember from my days as a member of the Boston Braves Knot Hole Gang back in the early 1940s. So I came up with a nickname (in the style of George W. Bush). C2H50H's "Cooch" is kinder than mine, but that was one of Tony's nicknames. So I'll stick to my more descriptive one.

Our yodeler seems impatient in his desire to have AG "Cucaracha) take his legal advice on reframing the subpoena efforts to pass muster with the court.

Now isn't it about time that Dick Cheney's energy summit documents of early 2001 were disclosed? They might reveal something related to the BP Gulf leak and deep water drilling. Of course our yodeler will claim that this is a fishing expedition; but there may be less fish to be netted in the Gulf because of the BP Gulf leak. "Oils Well" doesn't always "End Well" despite the Three Stooges.
 

Bart Depalma 2007: "The fact that the defense is on this fishing expedition to obtain evidence just further reinforces the [plaintiff]'s argument that [the defense] is offering no evidence at this point."

Bart DePalma 2010: "The fact that the plaintiff is on this fishing expedition to obtain evidence just further reinforces the defendant's argument that the plaintiff is offering no evidence at this point."

These statements seem perfectly consistent to me.
 

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