- 211 -
burden of proof on that question, that petitioners had not
carried that burden.96
We regard the exception as immaterial because we are
satisfied that our conclusions and the outcome would remain the
same, even if we were to conclude that Mr. Izen had been aware of
the settlements. We would so conclude on essentially the same
grounds on which we reject Mr. Sticht's argument over
Mr. Kersting's interferences with the attorney-client
relationships of the attorneys whom he employed to represent the
test case petitioners. See infra pp. 230-232.
II. Structural Defect
A. Case Law
The Court of Appeals for the Ninth Circuit vacated this
Court's decisions in the test cases and remanded the cases with
directions "to conduct an evidentiary hearing to determine the
full extent of the admitted wrong done by the government trial
lawyers" and to consider "whether the extent of misconduct rises
to the level of a structural defect voiding the judgment as
fundamentally unfair, or whether, despite the government's
96 This would have been made even more likely by
Mr. Kersting's failure to appear and testify at the evidentiary
hearing, which might have brought into play the doctrine of
Wichita Terminal Elevator Co. v. Commissioner, 6 T.C. 1158, 1165
(1946), affd. on other grounds 162 F.2d 513 (10th Cir. 1947),
that the failure of a party to introduce evidence within his
possession or control which, if true, would be favorable to him,
gives rise to the presumption that if produced it would be
unfavorable. Mr. Kersting's assertions in his motion to quash
subpoena that he was too sick to attend the evidentiary hearing
might have been well taken, but consideration could have been
given to alternative means of obtaining his testimony.
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