- 232 -
of interest costs, legal fees, and expenditure of private party,
administrative, attorney, and judicial resources.
Nevertheless, Mr. Kersting's misconduct does not somehow tip
the scale in favor of finding a structural defect in the trial of
the test cases. While Mr. Kersting endeavored to keep all the
nontest case petitioners under his wing through his numerous
"Dear Friend" letters and through the hiring and firing of
counsel for test case petitioners, nontest case petitioners
should have been alerted to the potential for and presence of
conflicts between their interests and those of Mr. Kersting by
Mr. Seery's withdrawal as counsel, as well as by the firing of
Chicoine and Hallett. However, neither Mr. Kersting's payment of
Mr. Izen's fees, nor our review of the record in Dixon II,
suggests that Mr. Izen's representation of the test case
petitioners was inadequate, in the sense that there is anything
more that he or any other attorney could have done that would
have led to a different outcome.
At the end of the day, the Government misconduct in these
cases is not readily comparable to any of the fundamental
constitutional violations that the Supreme Court has identified
as a structural defect, e.g., denial of the right to counsel or
the right to self-representation, the right to an impartial
judge, or the right to a public trial. In this regard, we are
mindful of the Supreme Court's statement in Arizona v.
Fulminante, 499 U.S. 279 (1991), that most constitutional errors
are amenable to harmless-error analysis. Considering all the
Page: Previous 222 223 224 225 226 227 228 229 230 231 232 233 234 235 236 237 238 239 240 241 NextLast modified: May 25, 2011