- 218 - the misconduct "cannot be fairly assessed without engaging in sheer speculation". In short, taking a different route from Mr. Izen and Mr. Jones, Mr. Sticht would bring his clients to the same destination: that nontest case petitioners are entitled to entry of decisions that no deficiencies are due in their cases. In response to respondent's contention that the Government misconduct did not result in a structural defect because Mr. Izen was not inhibited in fully and fairly presenting his clients' cases, Mr. Sticht asserts that nontest case petitioners nevertheless were harmed by Mr. Kersting's firing of Chicoine and Hallett at a time when they were attempting to settle the Kersting project cases. Mr. Sticht further suggests (in very general terms) that Mr. Izen's performance at the trial of the test cases was deficient and that the trial of the test cases should have included an attorney who was not being paid by Mr. Kersting. C. Summary of Government Misconduct Our first step in deciding whether the Government misconduct resulted in a structural defect in the trial of the test cases is to describe and characterize the Government misconduct. Messrs. Sims and McWade negotiated a series of contingent settlement agreements in the Thompson and Cravens cases in advance of the trial of the test cases under which the Thompson and Cravens would receive the more favorable of: (1) The Tax Court's decision if the test case petitioners should prevail inPage: Previous 208 209 210 211 212 213 214 215 216 217 218 219 220 221 222 223 224 225 226 227 Next
Last modified: May 25, 2011