Prosecutors want retrial in Topeka

? The second trial of former Westar Energy Inc. executives David Wittig and Douglas Lake should be held in Topeka, rather than in Kansas City, Kan., prosecutors say.

The first trial, which ended in a hung jury, was held in Kansas City, Kan., at the request of Wittig’s and Lake’s attorneys, who argued they couldn’t get a fair trial in Topeka. In a motion filed Wednesday, prosecutors argued that the court could seat an impartial jury in Topeka through the traditional process of finding biased jurors through pretrial questioning.

Wittig, former chairman and chief executive of Westar, and Lake, former chief strategic officer, are charged with looting Westar, the state’s largest utility.

Wittig, of Topeka, and Lake, of New Canaan, Conn., both have denied wrongdoing, saying their actions were approved by company officials and disclosed in public filings.

Federal prosecutor Rich Hathaway argued in Wednesday’s motion that most of the alleged crimes occurred in Topeka, most of the witnesses are from Topeka, and the judge, Hathaway and their staffs are based in Topeka.

And Hathaway said the key question is whether publicity has “given jurors such fixed opinions that they cannot impartially judge” the defendants’ guilt. He argued that the publicity has not risen to that level.

On Tuesday, Eric Melgren, the U.S. attorney for Kansas, announced that his office will retry the men, although it remains unclear on what charges.

A 40-count indictment returned by a federal grand jury in Topeka last July accused Wittig and Lake of conspiracy to defraud Westar, circumventing internal accounting controls, wire fraud and money laundering. The pair’s first trial ended Dec. 20, after a 10-week trial, when a jury failed to reach a verdict on more than half those charges.