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Cuccinelli goes fishing again

Filed under: — group @ 4 October 2010

In keeping with our role as a site that tries to deal with the science of climate change rather than the politics, we have specifically refrained from commenting on various politically-motivated legal shenanigans relating to climate science. Some of them have involved us directly, but we didn’t (don’t) want to have RC become just a blog about us. However, the latest move by Ken Cuccinelli, the Attorney General of Virginia, against Mike Mann and UVa is so ridiculous it needs to be highlighted to the widest audience possible.

For background, Rosalind Helderman at the Washington Post has covered most of the story. The last installment was that Cuccinelli’s attempt to subpoena 10 years of emails between 39 scientists and Mike Mann and ‘all documents’ residing at UVa related to four federal and one Commonwealth of Virginia grant, was thrown out by a judge because Cuccinelli did not provide any reason to suspect that fraud had occurred and that federal grants are not covered by the relevant statute. Without due cause, the AG is not allowed to investigate (and without such a restriction, there would be no end to politically motivated witch hunts).

Yesterday, Cuccinelli filed a new demand that takes this previous judgment into account. Namely, he attempts to give a reason to suspect fraud and only targets the Commonwealth grant – though still asks for 10 years of emails with an assortment of scientists. However, his reasoning should scare the bejesus of anyone who has ever published a paper on any topic that any attorney might have a political grudge against. For the two papers in question the fraud allegation is that the authors

… knew or should have known [that they] contained false information, unsubstantiated claims, and/or were otherwise misleading. Specifically, but without limitation, some of the conclusions of the papers demonstrate a complete lack of rigor regarding the statistical analysis of the alleged data, meaning the result reported lacked statistical significance without a specific statement to that effect.

So in other words, if you publish a result that might turn out to be statistically weak or with understated error bars – even if this was in no way deliberate and regardless if you were aware of it at the time – Cuccinelli thinks that is equivalent to fraud. And any grant that you apply for that even cites this paper would therefore be a false claim under the statute. Cuccinelli is specifically not stating that deliberate scientific misconduct must have occurred, all you need to have performed is an inadequate (according to him) statistical treatment or you made an unsubstantiated claim. If you want “unsubstainted claims”, Soon and Baliunas (2003) (cited approvingly by Cuccinelli) would be a great example of course. But more generally, this would clearly open up pretty much the entire literature to ‘fraud’ investigations since one can almost always improve on the statistics. You didn’t take temporal auto-correlation into account in calculating the trend? Cuccinelli thinks that’s fraud. You didn’t fully characterise the systematic uncertainty in the “unknown unknowns”? That too. You weren’t aware of the new data that showed an older paper was incomplete? Too bad. This is not just an attack on Mike Mann, it is an attack on the whole scientific enterprise.

However, as appalling as this reasoning is, Cuccinelli’s latest request is simply bone-headed because the grant in question, entitled “Resolving the scale-wise sensitivities in the dynamical coupling between the climate and biosphere”, simply has nothing to do with the MBH98 and MBH99 papers! Even if one agreed with Cuccinelli about their quality (which we don’t), they are not referenced or mentioned even obliquely. The grant was to look at how climate variability impacted land-atmosphere fluxes of carbon, water and heat and doesn’t involve paleo-climate at all. So even if, for arguments sake, one accepted Cuccinelli’s definition of what constitutes ‘fraud’, nothing associated with this grant would qualify. We doubt there could be a clearer demonstration of the inappropriateness of Cuccinelli’s case.

Well, maybe one. In the attachment to the subpoena, Cuccinelli repeats his claim that since Mann used the word “community” in a blog post here on RC, he must therefore be using “Post Normal” jargon, and that might be “misleading/fraudulent” in the context of a grant application. Really? Scientists who use the word “community” regardless of context are therefore to be suspected of fraud? This is just embarrassing.

It might be worth pointing out that under the Virginia Bar ethics guidelines, it states that:

A lawyer should use the law’s procedures only for legitimate purposes and not to harass or intimidate others.

We can only wonder when this will start to be applied to the current AG.

444 Responses to “Cuccinelli goes fishing again”

  1. 101
    Edward Greisch says:

    US Constitution Article 1 Section 9: “No bill of attainder or ex post facto Law shall be passed.”
    Article 1 Section 10: “No state shall enter into any treaty, alliance, or confederation; grant letters of marque and reprisal; coin money; emit bills of credit; make anything but gold and silver coin a tender in payment of debts; pass any bill of attainder, ex post facto law, or law impairing the obligation of contracts, or grant any title of nobility.”
    The US Constitution clearly prohibits what Cuccinelli is doing. Since the law was passed AFTER the alleged fraud supposedly happened, the judge erred in not dismissing the case in its entirety.
    Dr. Mann should appeal immediately under ex post facto. Any/every US citizen should know this.

  2. 102
    Edward Greisch says:

    Could you give us the necessary information to file an amicus [friend of court] brief? Name & address of the court, docket number, etc.? The front page of the lawsuit? I’m not a lawyer, but I wouldn’t put it past me to file pro se.

  3. 103
    deconvoluter says:

    Re my #82: moderation in the media (does not refer to Realclimate).

    As far as I can see the moderation policy on many of the comments which follow blogs is to ban comments which have offended other commentators. No such ban exists for much worse attacks on researchers, there is a free for all. It has become a kind of sado-sport. There are still people around who defend this lack of regulation.

    This culture emboldens people like Cuccinelli who may be hoping to receive support from some of the public.

  4. 104
    Lloyd Flack says:

    I think this should be seen less as a climate science issue than as part of a general pattern of overreach by unaccountable prosecutors. And this unaccountability is what people should concentrate on attacking. This is not a type of malfeasance thatis confined to one side of poliics. Prosecutors have too little to lose by charging innocent people.

  5. 105
    Anand says:

    Does Dennis at #34 have a valid point? Is that one of Cuccinelli’s major planks?

  6. 106
    Dan H. says:

    #96,

    [edit – OT]

  7. 107

    My petition supporting climate scientists remains relevant, sadly: http://www.petitiononline.com/clim4tr/petition.html

    It could be worse: too few people fought back against the original McCarthyism. At least this time we are recognising what this is from the start.

  8. 108
    Edward Greisch says:

    76 swv: Thank you.

    83 Buzz Belleville: Thank you.

  9. 109
    RalphieGM says:

    It seems to be lost on this blog that it is the use of public money that is the concern.

    [Response: Uh huh. Here are the numbers, from the Washington Post: “To defend itself from Mr. Cuccinelli’s
    investigation into the distribution of a $214,700 research grant, the
    University of Virginia has spent $350,000, with more to come, and that
    doesn’t count the taxpayer funds Mr. Cuccinelli is devoting to this cause.” –eric]

  10. 110
    andrew adams says:

    The thing is, even if Cuccinelli’s new demand is thrown out by the judge he has still achieved something because his supporters in the denialsphere are portraying UVa’s attempts to fight his demands as proof that they have something to hide.

  11. 111
    Steve Metzler says:

    I was interested to know what Judith Curry’s take was on this whole affair, so I googled: ‘judith curry cuccinelli’, and the first result is a (very brief, probably via e-mail) interview with Judith:

    Examiner.com interview with Judith Curry

    At the outset she roundly condemns Cuccinelli and his witch hunt, so I thought: “Good, my faith in humanity is restored. At least she’s not gone completely over to the other side.” At that point I almost stopped reading, but… then she goes off on a completely different tack and gets in quite a few nasty digs concerning Mann, the hockey stick, and the IPCC! It’s real Jekyll and Hyde stuff.

  12. 112
    Dale says:

    Consider that every Republican running for the Senate this year is an anti AGW denier. Even John McCain seems to have drunk the Kool Aid. We can expect the future will be fraught with the kinds of antics were seeing from the AG of Virginia along with political machinations that will ham string any attempts to move us forward in dealing with the AGW in any serious manner. Any hope that we’d smarten up and do the right thing will be put on hold for at least another two years if not more. We’re going to be under people who are slaves to their ideology so we can forget about anything approaching pragmatism.

    I hate to say it but the situation is becoming bleaker by the day.

  13. 113
    Steve Metzler says:

    Dan H. (#106):

    Removing the cloud feedback, lowers the climate sensitivity value to ~2C/doubling of CO2. This value is still higher than the observed warming.

    Well, gee. Could that be because we aren’t anywheres near a pre-industrial doubling of 560ppm yet? I also agree that 6C seems high, but it looks like we’re pretty much on track for at least 3C/doubling of CO2.

    [Response: This is not a thread about climate sensitivity. Curiously, those tend to get overrun with people who want to talk about something else. In either case, conversations are best served by staying on topic. Thanks. – gavin]

  14. 114

    101 (Edward G)

    Dr. Mann should appeal immediately under ex post facto.

    I disagree, because it would give the impression of an admission of potential “guilt,” excused by a loophole (i.e. that the statute would have applied had it been passed earlier).

    I actually think this case should be allowed to go to trial, to establish a clear precedent for the necessary freedom of academics and research, and to make it clear and unchallenged that the anti-AGW crowd is dangerously anti-science, to the point of overstepping the bounds of a reasonable society and government. I’m sorry for what it would put Dr. Mann through, but I think it would be as or more important than the Scopes trial, or the McCarthy trials (which served the purpose of making such behavior so distasteful to several generations of Americans that it hasn’t happened since, at least in a structured form and forum such as U.S. Senate hearings).

    No matter where this goes, this is a no win and a must win, IMO, because those that approve of Cuccinelli’s attack will claim that any failure on his part is a result of a corrupt system fixed to let Mann et al “escape.” It doesn’t matter if a judge recommends that Cuccinelli be disbarred, or if it actually goes to trial and is a media-frenzy, public laugher there. I’m stunned at the mindless, eager denialsphere acceptance on other blogs of what should be an embarrassing stance that should trigger disgust in any American, but that’s the polarized, winner-take-all my-side-is-the-only-side world we live in today. People are so confident and firm in their fanatically extreme beliefs that they cheer like provincial sports fans for any new tactic in the game that offers potential points for their side.

    On the other hand, rational people that see this for what it is (a gambit, a ploy, a charade, a witch hunt, a fabrication, a distraction, and a distortion) will take some solace in any of the range of eventual outcomes (from dismissal of the case to disbarment of the AG), but that will just be replaced by the next assault. It’s just evidence of how far the deniers will go to stall action.

    And isn’t that a puzzle? Isn’t it rather amazing that a scientific proposition, right or wrong, aimed at the unquestionable good of protecting civilization and humanity, should be twisted and distorted not only into an act of evil and self-interest, but one that actually enrages a strangely susceptible portion of the population (“These are not the droids you’re looking for…”)? Isn’t it beyond amazing, and frightening, that not only is the science being attacked and vilified, but the scientists themselves?

    What is more bothersome to me than the AG’s assault itself is the venomous disgust expressed for Dr. Mann as an individual that I see expressed in denier blogs.

    Meanwhile, UAH has more records for September, despite falling SSTs, and Spencer chimes in with “I currently have no explanation for this.” Time for Church Lady to step in… “Hmmmm… let me seeeee… could it be… SATAN???” At the same time, I’ve seen recent denialsphere attacks on the quality and validity of the satellite record, since pretty soon the rise in temperatures will not be able to be dismissed by declaring corruption and failure in the global surface temperature datasets alone.

  15. 115
    Ray Ladbury says:

    I think the most disturbing thing about all of this is that we now have an electorate that accepts the most mind-bogglingly stupid assertions from our elected politicians without even blinking. In the same week we have a States Attorney who thinks he’s a climate expert and a Senate candidate asserting that she’s not a witch. And the electorate, rather than laughing both off the political stage, merely says “Baa-aah!”

    This is not a liberal vs. conservative issue. This is a reality vs. nutjob issue.

  16. 116

    #111–Dale, don’t assume they are all going to win. There are some signs of the pendulum swinging back, some at least. Some of these folks are so visibly nutjobs that quite a few “ordinary folks” have noticed, and the so-called “enthusiasm gap” has been closing. . . in some cases, has reversed.

    One case in point, I don’t think our “not-witch” is going to fly. . .

  17. 117

    114 (Ray),

    This is a reality vs. nutjob issue.

    I agree, although I think there always have been and always will be a large (but proportionally fractional) segment of nutjobs. I think the real problem is that modern society is accentuating and empowering the vocal but minority nutjobs, while marginalizing (and so confusing) the large majority of mainstream, reasonable people.

    I blame this in part on the media, with Faux News being a particularly vile culprit, but with all of them being complicit in some way. I’d say that the political parties are also culpable, except that they are also victims. They’ve been hijacked by extremists on both sides, as much as they themselves have been enablers of the nutjobs.

    Hence the need for a comedian to call for a Rally to Restore Sanity.

  18. 118

    RCM progress: The solution to my overbright surface was simple. The figure was supposed to be NET shortwave input, not GROSS. SW flux density down at top – SW flux density up at top. So now I’m getting 183 W/m^2 instead of 213. Still high (Trenberth et al. 2009 get 161), but a lot more reasonable.

  19. 119
    Ric Merritt says:

    @ Ray Ladbury’s song parody #77 and Douglas’s schoolyard insults #80:

    OK, Cuccinelli has forsaken truth and honor and damaged us all. But I advise the moderators to flush anything, any time, that makes fun of someone’s name. It adds nothing and sounds juvenile.

  20. 120

    I will revise my own position in 113 somewhat, in that while I think it would be good for this to go to trial and set some rules, Cucinelli is clearly on a fishing expedition. It’s my belief that he’s not actually hoping to win his case, or even get it to court. What’s he’s hoping for is access to a decade of unrelated e-mails, which he’s hoping will reveal something that can then be taken out of context and put into the public spotlight under the auspices of his suit, sort of “Climategate, The Sequel.” It would be an even worse abuse of power than bringing the suit, and a worse invasion of privacy than the release of the hacked e-mails, but that doesn’t seem to bother a certain sort of person in the least.

  21. 121
    deconvoluter says:

    Re #113

    In spite of agreeing with some of what you say, I don’t think any of us has the right to persuade someone else to go into the front line. Diverting researchers into litigation would be a partial victory for anti-science. Ideally someone else such as a retired researcher might initiate a court action; failing that a well informed amateur or environmentlist?

    Sorry to pour cold water on your choice of Cuccinelli for a court action but he might lose because of his bad law. That would be excellent news but it would not be analagous to the great legal actions of the past such those involving Scopes or Lipstadt, which rested on exposing misinformation. In fact it might hardly be reported, judging from the lack of truthful publicity given to the results of the numerous inquiries into the CRU emails.

    Other people correctly argue that we can’t do science in a law court. While agreeing with that,(e.g over the hockey stick) I think a court might be able to expose nonsense posing as truth. It is sometimes done in the case of patents. The obvious targets would be Plimer,Monckton or his supporter Corbyn.They all threaten litigation but unfortunately its probably just bluster.

  22. 122
    Joseph O'Sullivan says:

    The Washington Post has an editorial on Cuccinelli’s actions out today.
    “Ken Cuccinelli seems determined to embarrass Virginia”
    http://www.washingtonpost.com/wp-dyn/content/article/2010/10/05/AR2010100504908.html

  23. 123
    Ray Ladbury says:

    Ric@118–your criticism is without Merritt!

  24. 124
    Jeffrey Davis says:

    I think the widespread insanity is the product the neo-Cons rump trying to demonstrate that democracy is a bad idea. Every time you think that some insane position won’t be believed by the mob, the unreality crowd leap-frogs its old positions and something crazier is accepted. Defending democracy at this stage in history demands a strong stomach and a whole lot of stout assertion.

  25. 125
    Rod B says:

    Bob (Sphaerica) (119), you raise a frightful and significant point. As the saying goes, there is not a person alive (at least over 30) that could beat the scrutiny of a malevolent zealous investigator who had access to everything that person said or did.

  26. 126
    jim edwards says:

    101 – Edward Greisch:

    If we had an originalist interpretation of the Constitution, you’d be correct.

    Unfortunately, proponents of the “Living Document” theory of Constitutional interpretation have created a distinction between ex post facto laws that define criminal offenses, and those that define civil offenses.

    As long as Mann is not threatened with jail time, the progressive jurists have deprived him of this absolute defense. Of course, at the time, their well-meaning intent was to only retroactively punish “evil” businesses. Once Constitutional protections are weakened, however, they tend to wither and die. [see, e.g. – the Patriot Act]

    The AG can assert a civil prosecution on a whim [with a much lower burden of proof than for criminal prosecution], forcing Mann to incur stress, lost time, legal expense, embarassment, and potentially significant fines or other civil penalties.

    The AG and the State have sovereign immunity from any claims for overly-zealous prosecution. The AG also has complete discretion to pick on Mann and ignore others.

    Dr. Mann, welcome to the life of a small-to-medium-sized business owner.

    [P.S. – I have long argued that calls for legal action against Mann, Jones, and/or so-called ‘deniers’ are dangerous.]

  27. 127
    CM says:

    Re #124, 119:

    “If you give me six lines written by the hand of the most honest of men, I will find something in them which will hang him.” – Cardinal Richelieu

    (hat tip to SF writer Charles Stross, commenting on the CRU hack)

    Another angle for Cuccinelli and his mentors is that as long as he is allowed to keep up this charade, hacks will be able to describe Mike Mann as “subject of a fraud investigation”.

    Folks like us will feel obliged to keep repeating that he’s being, say, “martyred in a political witch hunt”, which, while actually true, does not do much to keep the “debate” down to a low scream so the grownups can get on with sorting out some kind of mitigation policy.

  28. 128
    SecularAnimist says:

    The fossil fuel corporations collectively rake in ONE BILLION DOLLARS PER DAY in profit — not revenue, profit.

    Every single DAY that the urgently needed, rapid phaseout of fossil fuels can be delayed, and business-as-usual consumption of fossil fuels can be continued, is another ONE BILLION DOLLARS IN PROFIT for the world’s largest, richest and most powerful corporations.

    That’s what Cuccinelli’s antics are ultimately about: manufacturing more phony reasons to delay the phaseout of fossil fuels.

  29. 129
    jim edwards says:

    #124 – Jeff Davis

    Government is the majority with a big stick.

    Democracy is dangerous. Political majorities have existed within readers’ lifetimes for enforced racial segregation, incarceration or involuntary commitment of homosexuals, and denial of a property owner’s plans to build a house of worship [WTC mosque].

    The more power given to government, the more likely it is that disfavored minorities will be oppressed.

    Anti-democratic limitations on government power [e.g. – Bill of Rights, limits on bills of attainder / ex post facto laws, and seizure of property…] are necessary to prevent oppression and violent response by the oppressed. It’s a shame the courts rarely question any action of the Legislature.

  30. 130
    ChrisD says:

    sidd #5

    The phrase “knew, or should have known” is actually pretty standard legalese, and is not as draconian as it sounds. The context of “should have known” is professional, i.e., this is something that someone claiming to be a professional really should know, and if he doesn’t, he’s a quack.

    “At the time he prescribed it for his original wife, Dr. Moribund knew, or should have known, that potassium at the specified level would have fatal consequences.”

    This is not to defend the rest of Kounselor Kenny’s ridiculous screed.

  31. 131

    121 (deconvoluter)

    Other people correctly argue that we can’t do science in a law court

    I think you’re misunderstanding what I’m saying.

    By no means should climate science be tried in a court of law, and the validity of the science would not be the issue.

    What would ultimately be on trial (in any reasonable defense) would be any administration’s right (or lack thereof) to try the science or the results of scientific efforts, or to argue that scientists are culpable if their results are ultimately proven wrong, i.e. the argument that the mere existence of scientific debate constitutes fraud on the part of a researcher.

    What should be clarified, with a clear judicial precedent, is the complete lack of justification or the idea that once a grant is awarded, the scientist is somehow required to produce perfect and indisputable evidence of the accuracy of his final results, as well as the results of other researchers on whom his work builds but over whom he exercises no control.

  32. 132

    Typo:

    …lack of justification or the idea…

    should be

    …lack of justification of the idea…

  33. 133
    Edward Greisch says:

    88 Snapple: “Gazprom”: The CIA would be interested in that stuff. See:
    https://www.cia.gov/cgi-bin/comment_form.cgi
    “Online E-mail Form:

    We read every e-mail we receive but with limited staff and resources, we simply cannot respond to all who write us.

    We do not routinely respond to questions for which answers are found within this Web site.

    If you have information which you believe might be of interest to the CIA in pursuit of the CIA’s foreign intelligence mission, you may use the form below. We will carefully protect all information you provide, including your identity. The CIA, as a foreign intelligence agency, does not engage in U.S. domestic law enforcement.”

    And you might also call the FBI. You can find the FBI in your local phone book.

  34. 134

    Perhaps I’m missing something here, but I fail to see any basis for the “ex post facto” argument–no new law is being invoked as far as I can tell, and fraud has (of course) long been a felony.

    I also fail to see any basis to sustain a claim of fraud in fact: who, precisely, has been defrauded? As I understand it, Dr. Mann (or Dr. Spencer, or Dr. Curry–anybody, really) could make the most egregiously foolish claim imaginable–say, the proverbial chocolate cake in Jovian orbit–and it wouldn’t be fraud until some poor fool was enticed to pony up cash to go look for it.

    Am I wrong about this?

  35. 135
    SecularAnimist says:

    Kevin McKinney wrote: “Am I wrong about this?”

    None of that matters.

    Cuccinelli’s antics have only one purpose: to keep the idea that AGW is a “fraud” in the “news”.

    And thereby diminish public support for doing anything about it.

    And thereby perpetuate the business-as-usual consumption of fossil fuels.

    Because every single DAY that business-as-usual consumption of fossil fuels continues, means another billion dollars in profit for the fossil fuel corporations.

    This all has nothing to do with science. It has nothing to do with ideology. It has nothing to do with the law.

    It has everything to do with postponing as long as possible, by any means necessary, at any cost, the transfer of trillions of dollars of wealth from the fossil fuel corporations to other sectors of the economy.

  36. 136
    Septic Matthew says:

    knew or should have known [that they] contained false information, unsubstantiated claims, and/or were otherwise misleading. Specifically, but without limitation, some of the conclusions of the papers demonstrate a complete lack of rigor regarding the statistical analysis of the alleged data, meaning the result reported lacked statistical significance without a specific statement to that effect.

    I think that the Attorney General of VA has the right to review all the records relating to research that the State of Virginia funded at the state university. That said, the quoted section has two terrible standards for assessing criminality or negligence.

    1. In science, how can anyone ever determine what someone ought to have known at an early stage in the investigation, or even part way through? All of the early research in anything produces confusing results. At what stage in Einstein’s career ought he to have known that “God does not play at dice” was an irrelevant criterion? The idea is absurd as soon as the question is answered. What in early research looks to one like an “unsubstantiated claim” looks to another like a reasonable conjecture. We had this debate already in the 80s with Robert Gallo and exactly when he ought to have known that HIV was not, as he thought, HTLV3; Gallo did not share the Nobel Prize with co-author Luc Montagnie, but I have not read a credible claim (pace that Chicago Tribune writer) that Gallo was criminal. Everyone knows what ought to have been thought in retrospect, and we have a dismissive name for it: “Monday Morning Quarterbacking”.

    2. There have been particular critiques of Mann et al’s statistical methods, and those critiques have themselves been critiqued. Mann et al instituted a small revolution in their field via introducing a new (to that field) multivariate technique on a kind of proxy data. At worst they did not know as much about the potential liabilities of that technique as some other researchers, statisticians specifically. But even at the most recent Joint Statistical Meetings statisticians debated some of the problems that Mann et al were accused of mishandling: selection of proxies, how many principal components to retain, how to get all the proxy records on a commensurable scale. To use a set of unresolved professional arguments about the exactly best approach with high dimensional data as a basis for an investigation into potential malfeasance is a really bad policy. Decades ago Dr. Claire Ernhardt tried to prosecute Dr. Herbert Needleman for this kind of malfeasance, and the whole episode ought to serve as a warning for any attempt to base a claim of malfeasance on a claimed statistical inadequacy.

  37. 137
    Paul Tremblay says:

    Jim Edwards wrote “The AG can assert a civil prosecution on a whim [with a much lower burden of proof than for criminal prosecution], forcing Mann to incur stress, lost time, legal expense, embarassment, and potentially significant fines or other civil penalties…Dr. Mann, welcome to the life of a small-to-medium-sized business owner.”

    So we have more political grandstanding. If the AG had as much power as you say, then why did a judge already rule differently, in effect limiting the AG’s power? You also group together completely different things such as ex post facto laws and the seizure of property. These topics deserve their own books. So could we please stick to the law as regards Dr. Mann and the Virginia AG, or do we want another superficial silly political debate?

  38. 138
    jim edwards says:

    #134, Kevin McKinney

    In posts #32 and 60, it is asserted that the particular Virginia statute the AG alleges Mann violated was not enacted until AFTER Mann had applied for, and received state money pursuant to, a grant from the state of Virginia.

    If so, it is patently unfair to harass Mann under the statute – even if he were 100% guilty.

    The federal Constitutional prohibition on ex post facto laws would protect him from criminal prosecution in that case, but would NOT necessarily prevent the state from, say, requiring Mann to defend himself in a civil proceeding and then return the grant money – with interest and penalties.

    The alleged defrauded party, here, would be the state. Of course, in order for it to be actionable fraud, the AG has to show a lot more even than Mann being spectacularly wrong.

    The AG would have to show that Mann made a false statement BEFORE he received the grant money, he knew it was a false statement at the time, he intended for the false statement to have the effect of securing grant money, and the state reasonably relied on Mann’s statement in awarding a grant [or continuing to make payments, if it wasn’t a lump-sum grant]

    Sinclair Paint is an interesting civil case from California that went up the federal court ladder and pushed the limits of ex post facto law. At one time, lead-based paint was not only legal – it was specifically mandated in government contracts for schools and hospitals [white-lead paint was considerably more expensive and lasted longer than titanium-based paint]. California passed a law requiring companies to retroactively have to pay an annual, prorated fine for past sales of lead paint – even though past manufacture and sales in California were legal and actively encouraged by state and local governments.

    The fined owners were often innocent third parties who bought companies from retiring owners – long after the subject companies had stopped manufacturing lead-based paint. The majority of the profits from the use of lead paint had been absorbed by politically-favored contractors and union painters [my grandfather was one…].

    The courts held the decades-past retroactive fine on currently non-offending paint manufacturers to be constitutional.

  39. 139
    deconvoluter says:

    #131 Misunderstood you?

    Not on that particular occasion. I had already written that I partially agree with you and that also applies to the rest of your new comment. The phrase you quoted and the paragraph that followed it were not directed at you. It was making a quite different point about another kind of litigation which I would welcome.

    Returning to your points involving Cuccinelli , I just don’t know. Its too hard to predict how it would turn out. From this distance it appears to be insane to have to go to court to demonstrate the obvious, perhaps more than once. It might succeed in that respect and yet be used as a publicity machine in other ways. It might be bad in the short term yet be useful as a permanent reference for later use. Anyway we don’t yet know whether Cucc. will follow that earlier Republican, J.MCarthy by destroying himself.

  40. 140
    Paul Tremblay says:

    Jim Edwards wrote: “Sinclair Paint is an interesting civil case from California that went up the federal court ladder and pushed the limits of ex post facto law.”

    The Sinclair Paint case does not appear to be an example of the courts enforcing an ex post facto law. Type in Sinclair Paint and ex post facto, and you will get no hits. But if you type in just Sinclair Paints, you get a nice summary here:

    http://www.sspc.org/regnews/state/CAleadsuit.html

    Sinclair’s main argument, which was supported by the Western States Petroleum Association, California Manufacturers, and others, was that the fees collected by California are not used to regulate the paint industry and thus were actually taxes collected in violation of California’s Proposition 13.

    The State Supreme Court soundly rejected this argument, ruling that the lead industries, whose products are the major causes of childhood lead poisoning, can be required to pay fees to mitigate the harm their products created in the community.

    Since Sinclair did not even argue that they were being required to obey a law ex post facto, I don’t see how this court case proves that the courts enforced an ex post facto law. This is an example of an industry being held accountable for the defects in its product.

    There is a precedent for holding business (and individuals, for that matter) liable for any harmful products or actions. I don’t know if this precedent hypothetically extends to Mann. I suppose if a researcher knowingly lied to get grant money, and then used that grant money to research something frivolous, the courts could have the power to make him pay back the money, regardless of whether a specific law was passed. For example, I can imagine that if a quack lied about his credentials to get state money which he then used to throw parties, he could face stiff fines.

    Of course, this is all hypothetical, since the courts will require the AG to have some reason for an investigation, and the AG doesn’t.

  41. 141
    deconvoluter says:

    Re : #111

    Is this unfair?
    I have not been following this story, so wonder if you ever seen JC depart far from McCintyre’s line recently?

    On the basis of psychological projection, I gather that she is rather conscious of ‘tribes’. Perhaps she indentifies herself with the McCintryrist tribe? She would not be the only one.

  42. 142
    ChrisD says:

    I think that the Attorney General of VA has the right to review all the records relating to research that the State of Virginia funded at the state university.

    Not retroactively, he don’t. The grant was obtained before the law he’s using was passed. It’s ridiculous on its face, and seems to be prima facie evidence that Kounsellor Kenny’s intent is political, not legal.

  43. 143
    dhogaza says:

    Also in regard to Sinclair Paint …

    The fined owners were often innocent third parties who bought companies from retiring owners

    Caveat emptor. When you buy a business, you’re not only buying the assets, you’re buying the liabilities.

    People I know bought a small general store, bar, and gas station complex. They failed to do due diligence and didn’t find out until later that the station’s gas tanks had corroded and had been leaking for years, with the ground plume spreading under the road the station front, into the school yard across the street (one room thing with 8 grades, yes, these things still exist today in the rural western US),

    Cost them big-time to clean it up.

  44. 144

    #138–Jim, thanks for clarifying that–I think.

    It led me to read the CID Cuccinelli filed, which was pretty much “through the looking glass.”

    The argument that Dr. A can take a contract to investigate Topic B, perform it faithfully and get paid, then get sued by the state because they claim that Paper C, which was on his resume when he applied for the grant for “B”, had problems–well, “tortured” is the word that comes to mind. “Strained” is way too weak.

    It’s hard to imagine that even a ideologue could think this will stand up legally. I mean, where’s mens rea? (OK, wait, the “guilty mind” test applies to criminal, not civil, matters.) But, damn it, the putative victim got their study on “B,” right? Hard to see that any tort occurred.

    All of which would probably make SA entirely correct, or at least largely so, regarding the true agenda here.

  45. 145
    Jacob Mack says:

    Put simply Eric you do understand what I am saying.

  46. 146
    Lotharsson says:

    …surely these and anything else relevant to the allocation of research grants are in the public domain anyway…

    Perhaps he’s been taking lessons in data acquisition from McI?

  47. 147

    Re the whole retroactivity argument: Cooch will probably claim that cashing the last check was an implicit reassertion of the “fraudulent” prior claims.

    Extremely weak, and wouldn’t pass muster under the federal version of the same law, IIRC. I’m not a Virginia lawyer though.

    I really hope this goes back to the same judge – maybe UVa lawyers can make that happen. I expect that judge will be displeased and start using language that would be useful in a bar ethics complaint.

  48. 148

    Bob (Sphaerica) #114: some anonymous benefactor sent be a copy of an article titled “Satellitegate: Degraded Sensors cover-up” alleging NOAA had covered up the fact that their sensors were degrading, some reporting temperatures as high as “612 degrees Fahrenheit”. Aside from the rather obvious fact that anyone with any competence at data analysis would pick up such an extreme value and raise the alarm, the article appears to be the usual mish-mash of presenting well known facts as if they were surprising and making fraudulent (there’s that word again) claims such as tying NASA in with alleged illegal breaches of FOI by CRU.

    Does anyone have the REAL story that’s behind all these claims on NOAA satellite flaws? The googles have been overwhelmed by denialist attacks. All I can find at noaa.gov is pretty routine reports on data errors.

  49. 149
    Kyle Harris says:

    I fear the comments by Larry in comment #44 are coming true. I think that part of the problem is that the scientific community does not take up for itself publicly. While people like Al Gore have increased awareness by many to the issue of AGW, he is still perceived as a politician with biases in a particular political direction. AGW science needs to be presented to the public by scientist without a perceived political bias. Just educate the public with the facts about what is known and point out the the gaps where more needs to be learned. I realize this won’t stop people like the Virginia AG, but it would go a long way towards winning the trust of the general public, taxpayers.

  50. 150
    deconvoluter says:

    AGW science needs to be presented…

    …political direction

    Political lobbyists will always claim political influence lies behind everything. Worse still they would grumble about people employed by the public sector presenting anything which they haven’t filtered.

    Just what have you got in mind?

    The main problem is one of access. If this work were to be done through such channels as the BBC (UK example) it would be seriously limited by spurious questions of balance and tendencies to dumb down. So far we have only had Iaian Stuart’s series ‘Climate Wars’, a Horizon programme called ‘Global Dimming’ and some radio reports e.g.by Roger Harrabin. The less said the better about all of these. David Attenborough is much better but avoids the technical stuff.

    Al Gore found a way around the more orthodox route.
    He achieved a remarkable degree of publicity for a rather ordinary talk. Perhaps his success was partly based on his political skills. When he came to my local town (in the UK) his talk was sold out,although, over the years, there had been better lectures open to the public. Why was that? He was assisted by local politicians. Somehow the talk was put on in one of the local cinemas. Which scientist could organise that? Then he persuaded the UK government to agree to organise lessons around his talk in UK schools. That shows a remarkable amount of self confidence. Non politicians don’t always have such a high opinion of themselves.

    Once again what do you suggest? There are already some University courses around, which could be spread around more and , as you know , lots of stuff on the web like this site.

    Just a thought, I wonder if someone could persuade Richard Alley to use his Bjerknes lecture as the basis for a more introductory and wider series of talks…
    But he is only one person.