Trial Of Mann v. Steyn, Part IV: The Defense Case

The trial of Michael Mann versus Mark Steyn and Rand Simberg is nearing its conclusion in the Superior Court of the District of Columbia.

The court’s livestream feed makes it possible for people like me to observe the proceedings from home. However, they only show to the home viewers the same things that the jury gets to see and hear, and not necessarily all of that either. For example, some exhibits that are shown to the jury on an easel in the courtroom are not visible on the video feed. Also, many things happen in the courtroom that the jury is not allowed to watch or hear — the general idea being that the jury is supposed to base its decision only on evidence that gets “admitted” by the judge, and therefore anything that is not evidence is not something they can participate in. So when the lawyers argue legal issues before the judge — mostly about what can be admitted into evidence — the jury can’t hear it, and they also mute the video feed to home viewers. Other colloquy between the judge and the lawyers, often on administrative matters, is generally muted. Of about 5 1/2 hours of trial time each day, often an hour or more has been muted.

And thus it is not entirely clear to me that tomorrow is the last day of trial. But there was a stray unmuted remark from the judge on Monday that he hoped the jury would “get the case” on Wednesday. That means that closing arguments are likely to be tomorrow.

The last two days, Monday and Tuesday, have seen the presentation of the guts of the defense case. These were the main witnesses: Stephen McIntyre and Ross McKitrick, authors of a series of papers in the early 2000s that dissected Mann’s work and discovered several serious flaws; two members of the Penn State “Inquiry” Committee, that investigated Mann after the release of the ClimateGate emails in late 2009, and made no adverse finding against Mann (Mann has claimed that he was “exonerated”); and Eugene Wahl, a climate scientist and collaborator of Mann who had deleted certain emails that were subject to FOIA requests after Mann forwarded him a request to do so.

What follows are what I thought were some of the more significant highlights. Obviously, there is much that I have omitted. Also, I should note that I am a terrible note-taker. Also, many of the exhibits appeared quickly on the screen, without sufficient time to copy their contents accurately. So I have done my best, but I solicit any corrections from others who may have been watching.

Wahl. In 2008, it appeared that the people at the University of East Anglia (collaborators of Mann) had gotten one or more FOIA requests for information relating to Hockey Stick work. Phil Jones, head of the UEA group, then wrote an email to Mann asking him to delete emails on the subject, saying that several of the people in England would be doing that, and asking Mann to forward the request to Wahl to have him delete his emails as well. The email chain then showed Mann forwarding the Jones email to Wahl a few minutes later, without any comment. In Mann’s testimony, he had attempted to minimize this conduct by saying that he was not actually asking Wahl to delete emails, but just forwarding Jones’s request, because he thought that Wahl ought to know about that.

Wahl testified that he actually had deleted his emails on the subject after receiving this forwarded email from Mann. He said that he waited a few days to do that, and during that interval he had thought about it and then talked to Mann on another subject, and the question of deleting the emails had been discussed. As to what Mann said, Wahl said that Mann had provided “context.”

I would comment that if you had done what either Mann or Wahl did here, you would likely go to jail. However, Hillary Clinton did delete thousands of emails that were subject to a Congressional subpoena, and never suffered any consequences. So far, no consequences for Mann or Wahl either.

Scaroni and Foley, two members of the Penn State “Inquiry” Committee that supposedly investigated Mann after the ClimateGate email release. When the ClimateGate emails were released in late 2009, Penn State appointed an “Inquiry” Committee to look into the question of whether the emails revealed improper conduct on the part of Mann. Messrs. Scaroni and Foley were two high-ranking administrators at Penn State who got named to that Committee. After a brief investigation, in which the Committee interviewed only one witness — Mann himself — the Committee issued a final document on February 3, 2010 concluding that there was insufficient basis to determine that Mann had committed wrongdoing of the specified types.

Scaroni and Foley had been deposed by the defense lawyers, and their testimony was presented by videotape of those depositions. Basically, both testified that the scope of the assignment they were given was sufficiently limited as to allow them to avoid anything that went to the issues in this case. The Committee members never reviewed Mann’s data, methods, or manipulations. The Committee was not asked to, and did not, address the issues raised in the lawsuit as to whether the Steyn or Simberg blog posts were false or whether Steyn or Simberg lacked factual basis for those posts. It reached no conclusions as to whether Mann had “manipulated,” “molested,” or “tortured” data, or whether his Hockey Stick graph was “fraudulent.”

One of the deposed Committee members, Foley, wrote an email during the Committee process summarizing where he thought the Committee was, and suggesting that there should be a finding of “indeterminate” and a recommendation of “censure.” Then it emerged that Foley had sent a draft of the Committee’s proposed determination to the university President, Spanier. Spanier responded with a series of minor edits, and then a general comment that (paraphrase) the conclusion as proposed would not provide sufficient “closure,” the whole world was watching, and “we should have the courage” to say what we really mean. The final Report then found no sufficient basis for any sanction.

On cross by plaintiff’s counsel, both Scaroni and Foley asserted with apparently straight faces that the final report was not a “whitewash,” that they were people of integrity who would never do anything like that, and that Spanier had no influence on them at all.

McIntyre and McKitrick. These were two Canadians who undertook to replicate the work that Mann had published in his Hockey Stick papers of 1998 and 1999. They ended up publishing two lengthy critiques of Mann’s work in two papers in 2003 and 2005, and then further details in several subsequent papers. Both testified as fact (rather than expert) witnesses, as to their experiences and their conclusions about Mann’s work.

McIntyre began by talking about his efforts to replicate Mann’s work. He had initially gone to the journals where the work was published to ask for the data and code, and was told that they did not have it and he should ask Mann. He asked Mann, and got a lengthy run-around. Mann referred him to an assistant, Rutherford, who said the data was not all in one place. McIntyre said he was shocked, but he collected all the data he was referred to, and yet still could not replicate the work.

McIntyre testified that Mann had said in his papers that his work was “robust” to variations in which data time series were used. McIntyre said that he found the opposite — that Mann had used unusual methods that preferentially selected data of hockey-stick form and de-emphasized all other time series.

McIntyre also testified that he found that Mann had calculated various “verification statistics,” which are measures of whether the results have statistical significance or not. One of these in particular, the R2 statistic, when calculated, came out to near zero, indicating no statistical significance to the result. Mann had omitted this result from his paper, despite having claimed his result to be “robust.”

Much of the cross of McIntyre sought to emphasize that McIntyre never used the word “fraud” in criticizing Mann’s work. On two occasions, McIntyre conceded that that was true, but said that Mann had “omitted material adverse results.”

McKitrick covered some of the same ground as McIntyre, but focused particularly on the unusual methods used by Mann that caused his procedures to selectively emphasize data series in a hockey-stick shape. McKitrick used graphs from the McIntyre/McKitrick 2005 paper to show that of some 15 or so times series used by Mann, only two had hockey stick-like shapes, but those were the ones selected to drive the result and manufacture the famous graph. McKittrick’s conclusion was that Mann’s papers had overstated the significance of their results and had omitted failed verification statistics.

The cross of McKitrick was basically to show that this guy is a conservative that you as a DC juror should pay no attention to. He was read (and acknowledged) a quote where he had said that “I abhor earth hour; every material human advance in the 20th century has depended on cheap and abundant electricity.” Nefarious! He also was asked to admit that he had been at various times a fellow at the Cato Institute and at Canada’s Fraser Institute.

All of the above evidence was put on by counsel for defendant Rand Simberg. Steyn did not call any of the witnesses to testify, or examine any of them in the courtroom. (However, Steyn’s then-counsel had done most of the examination of Scaroni and Foley in their depositions.). Nor has Steyn testified on direct as yet during the defense case. At the end of the day today, there was an indication that the defense was about to rest. It was unclear to me if that referred only to Simberg. So I do not know if Steyn is going to testify in the morning. I certainly hope so. After that, it will be on to closing arguments.

My own reaction listening to this is to be horrified at the unscientific and unethical conduct of Mann. The omission of unfavorable data and adverse statistical results is inexcusable. Yet the entire scientific establishment seems totally willing to excuse and even honor Mann because he is an energetic advocate for their political agenda. The whole thing is sickening. And it is not clear to me at all that a D.C. jury, whose members likely share the political agenda of Mann and of the scientific establishment, will follow the facts and law in this case.