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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 in
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