- 233 -
facts and circumstances, including the unique nature of the test
case procedure, the specific configuration adopted for the trial
of the Kersting test cases, and Mr. Izen's ability fully and
fairly to present his clients' cases during the trial, we find
that the Government misconduct did not result in a trial that was
fundamentally unfair. See id. at 308; see also Greer v. Miller,
483 U.S. 756, 768 (1987) (Stevens, J., concurring). Stated
differently, although we disapprove Messrs. Sims' and McWade's
misconduct, as well as the misconduct of Mr. Kersting and
Mr. DeCastro, we do not conclude that their misconduct resulted
in a structural defect in the trial of the test cases mandating
either a new trial or entry of decisions in petitioners' favor.
III. Harmless Error Analysis
Although we have concluded that the Sims-McWade misconduct
did not result in a structural defect in the trial of the test
cases, we must consider whether petitioners are entitled to a new
trial on the ground that the misconduct resulted in reversible
error as opposed to harmless error. See Arizona v. Fulminante,
supra at 307-308. Although structural defect inquiries have
generally been limited to criminal cases, reversible versus
harmless error analysis appears in civil as well as criminal
cases.102
The Court's Rules of Practice and Procedure set forth the
principle of harmless error as follows:
102 See generally Traynor, "The Riddle of Harmless Error"
(1970).
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