Topeka U.S. District Judge Dale Saffels on Friday denied a new trial for James Hershberger, a former Wichita oilman and philanthropist now serving nearly 10 years in prison for investment fraud.
On Thursday, Hershberger argued that his lawyer made the decision that he not testify, and contended that decision contributed to his being convicted 2 years ago.
In a written order issued late Friday, Saffels said that testimony showed Hershberger himself decided not to testify.
``The court . . . finds the defendant was advised that the ultimate decision regarding whether he testified was his and his alone,'' the judge said.
Hershberger's attorney at the original trial, Thomas Haney, advised him not to take the stand on his own behalf after a practice session in which former Judge Michael Barbara played the role of the prosecutor. That mock trial, conducted privately, was videotaped.
``This finding is further bolstered by the defendant's extremely poor performance as a witness, of which he was obviously aware, during the videotaped practice session in December 1989,'' Saffels said.
Hershberger, 60, was convicted of 25 counts of defrauding investors and financial institutions involved with his defunct oil company, Petroleum Energy Inc.
Saffels, who presided over the original trial, sentenced Hershberger to nine and nine months in federal prison, entering Leavenworth prison in June 1990.
Haney testified that the final decision not to testify was made by Hershberger on the last day of the trial. Haney withdrew as Hershberger's attorney after the trial.