- 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 thePage: Previous 222 223 224 225 226 227 228 229 230 231 232 233 234 235 236 237 238 239 240 241 Next
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