- 249 - B. Discussion Whether the Government misconduct in these cases constitutes reversible error as opposed to harmless error does not turn on the "culpability of the prosecutor" but on whether nondisclosure of the Thompson and Cravens settlements and the Alexander understanding was material to the outcome in Dixon II. See Smith v. Philips, 455 U.S. at 219; Brady v. Maryland, 373 U.S. at 87; Mateyko v. Felix, 924 F.2d at 827-828; Chalmers v. City of Los Angeles, 762 F.2d at 761-762. We evaluate the impact of the Government misconduct on the outcome in Dixon II on the basis of the entire record. 1. Mr. Cravens Mr. McWade's settlement agreement with Mr. Cravens placed a cap on the Cravenses' tax liabilities for 1979 and 1980. However, we have found that Mr. McWade deliberately misled Mr. Cravens regarding the nature and effect of his settlement. In particular, Mr. McWade initially misinformed Mr. Cravens that he could neither win nor lose at the trial of the test cases as the basis for advising him that he need not retain counsel. Relying on this misinformation and bad advice, Mr. Cravens appeared at the trial of the test cases without counsel. Mr. Cravens was surprised when Mr. McWade informed him immediately before his testimony at the trial of the test cases that he would receive the better of his earlier settlement or a Tax Court decision in favor of the test case petitioners.Page: Previous 239 240 241 242 243 244 245 246 247 248 249 250 251 252 253 254 255 256 257 258 Next
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