Jerry and Patricia A. Dixon, et al - Page 156




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          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               

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