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respondent’s determinations against the other test case
petitioners.
On appeal, the Court of Appeals for the Ninth Circuit,
citing Arizona v. Fulminante, 499 U.S. 279, 309 (1991), stated:
We cannot determine from this record whether the
extent of misconduct rises to the level of a structural
defect voiding the judgment as fundamentally unfair, or
whether, despite the government’s misconduct, the
judgment can be upheld as harmless error. [DuFresne v.
Commissioner, 26 F.3d 105, 107 (9th Cir. 1994) (per
curiam), vacating Dixon v. Commissioner, T.C. Memo.
1991-614.]
The Court of Appeals vacated the Court’s decisions in the test
cases (other than the Thompson and Cravens cases) and remanded
them for “an evidentiary hearing to determine the full extent of
the admitted wrong done by the government trial lawyers.” Id.
In response to the direction of the Court of Appeals to consider
on the merits all motions of intervention filed by interested
parties, this Court ordered that the cases of 10 nontest case
petitioners (hereafter, the participating nontest case
petitioners) be consolidated with the remaining test cases for
purposes of the evidentiary hearing. One of the participating
nontest case petitioners was represented by Joe Alfred Izen, Jr.
(Izen), who had represented the test case petitioners (other than
the Thompsons and Cravenses) at the original trial; the others
were represented by either Robert Alan Jones (Jones) or Robert
Patrick Sticht (Sticht).
On the basis of the record developed at the evidentiary
hearing, the Court held that the misconduct of the Government
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