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.