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Archive for Wednesday, April 6, 2005

Judge won’t disqualify herself in retrial of Westar executives

Court lays ground rules for attorneys, refuses to move case out of state

April 6, 2005

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— Attorneys defending David Wittig and another former Westar Energy Inc. executive will face restrictions on their behavior during a second criminal trial, imposed by a federal judge who rejected their request she remove herself from the case.

U.S. District Judge Julie Robinson issued a 47-page order, laying the ground rules for courtroom conduct by attorneys for Wittig and Douglas Lake. Robinson also declined to move the May 9 trial out of state, returning the case to Kansas City, Kan.

During the second trial, Robinson will limit bench conferences with attorneys, restrict arguments during the raising of objections and place federal marshals in the gallery to report misbehavior. She also admonished attorneys to refrain from making gestures, facial expressions or audible comments in response to court rulings.

Wittig, of Topeka, and Lake, of New Canaan, Conn., face 40 counts of fraud related to their tenure at Westar, which ended late in 2002.

Prosecutors are retrying both men, again accusing them of trying to loot the state's largest electric utility before leaving the company. The first trial ended in December when Robinson was forced to declare a mistrial after the jury failed to reach a verdict on more than half of the charges.

Robinson's decision limits which attorneys can appear in her courtroom and even where one attorney must sit. She said her actions were based on "the court's observations after the fact of defense counsel's allegedly offensive conduct."

She cited examples of snickering, rolling of eyes and use of profanity by defense attorneys in response to her rulings from the bench, prompting her to note on the 11th day of trial that she was not a "playground monitor."

The behavior began during the selection of jurors, she said.

"Indeed, this behavior was so egregious that it moved a potential juror to write a letter about the conduct, citing his or her concerns that 'such conduct might prejudice what (the jury) hears from witnesses,"' Robinson wrote in her order.

During a hearing Monday, defense attorneys argued they were following their oath to be zealous defenders of their clients and said Robinson crossed the line by imposing sanctions after Wittig and Lake's first trial last year.

Edward Little, Lake's lead attorney, declined comment Wednesday. Calls to Adam Hoffinger, Wittig's lead attorney, were not immediately returned.

Robinson also rejected the defense attorneys' reliance on an article in The Kansas City Star about a Jan. 4 post-trial hearing, which described her reprimand of defense attorneys as a "45-minute verbal fusillade."

"No spectator, such as a reporter, could possibly be fully informed," she wrote.

Prosecutors said Wittig and Lake used company planes for personal travel; pushed Westar to invest in or buy companies in which they had personal interests; manipulated a proposed merger with another utility to bring themselves millions of dollars; abused an executive relocation program; and conferred with Westar's outside legal counsel to remove members of the board critical of their compensation.

Prosecutors want to force Wittig and Lake to surrender all compensation they received while at Westar: $27.9 million for Wittig and $9.4 million for Lake.

Defense attorneys argued during the first trial the charges arose from efforts by Westar to avoid paying Wittig and Lake millions of dollars in compensation owed to them under severance agreements. The two men and the company are in arbitration over those agreements.

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