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this Court ordered that the cases of 10 non-test-case
petitioners, one docket represented by Mr. Izen, some represented
by Mr. Sticht, and others by Messrs. O’Donnell and Jones, be
consolidated with the remaining test cases for purposes of the
evidentiary hearing mandated by the Court of Appeals in its
DuFresne opinion.23
This Court conducted this evidentiary hearing at special
trial sessions held in Los Angeles May 13 through 30 and June 10
through 26, 1996, and August 18, 1997. On the basis of the
record developed at the evidentiary hearing, this Court, on March
30, 1999, issued its Supplemental Memorandum Findings of Fact and
Opinion in Dixon III and entered decisions in the test cases. We
held that the misconduct of the Government attorneys in the trial
of the test cases did not, in the words of DuFresne, constitute a
“structural defect” in the trial, but rather resulted in
“harmless error”. However, with a view to promoting basic
fairness and justice in the Kersting project cases, and to
discourage future Government misconduct, the Court exercised its
22(...continued)
F.3d 105 (9th Cir. 1994), to be served on all attorneys who had
entered appearances in the nontest cases.
23The group of cases that were consolidated for purposes of
the evidentiary hearing initially included the case of William D.
and Karyn S. Booth, docket No. 28950-88, in which Mr. O’Donnell
had entered his appearance. However, at the start of the
evidentiary hearing, the Court granted Mr. O’Donnell’s motion to
sever the Booth case from the cases consolidated for the
evidentiary hearing.
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