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While the parties have primarily addressed the specific
issues posed by the mandate of the Court of Appeals, whether the
Government misconduct constitutes a structural defect or harmless
error, our analysis is not limited to these issues. At the
inception of this proceeding, the Court raised the issue whether
the Thompson and Cravens settlements share significant
characteristics with improper "Mary Carter" agreements; Mr. Izen
has consistently maintained throughout this proceeding that the
Government misconduct amounted to fraud on the Court; and
Mr. Sticht has asserted that nontest case petitioners were not
only harmed by the Government misconduct, but also by Mr.
Kersting's interference in the attorney-client relationships
between test case petitioners and their counsel. In an effort to
spread the blame, respondent has asked the Court to find that
Mr. Izen, as well as Mr. Kersting, was aware of the Thompson and
Cravens settlements at or before the trial of the test cases.
Before turning to our analysis of the foregoing issues, we
will address the burden of proof in this proceeding.
I. Burden of Proof
The Court deferred ruling on the parties' requests for
assignment of the burden of proof and the fixing of the standard
of proof for purposes of the evidentiary hearing. The Court
nevertheless placed on respondent the initial burden of coming
forward with evidence and prescribed a structure for the orderly
presentation of witnesses at the evidentiary hearing.
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