Jerry and Patricia A. Dixon, et al - Page 124




                                       - 203 -                                        

          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.                       



Page:  Previous  193  194  195  196  197  198  199  200  201  202  203  204  205  206  207  208  209  210  211  212  Next

Last modified: May 25, 2011