Topeka Attorneys for two former Westar Energy Inc. executives facing retrial on charges of looting the utility have asked the presiding judge in the case to step down, claiming she appears biased against them.
In a motion filed Friday, defense counsel for David Wittig, former chief executive officer of Westar, and Douglas Lake, former executive vice president, said U.S. District Judge Julie Robinson should recuse herself. The motion said comments and actions Robinson made during and after the two men's first trial threw sufficient doubt on whether she could be impartial in a second trial.
"While trials often have heated moments and judges must address what they perceive to be overzealousness or inappropriate conduct, the court's attitude toward defense counsel in this case has evolved from mild annoyance to open hostility," Wittig's attorney wrote.
Robinson and Chief Judge John Lungstrum did not return phone calls seeking comment Friday.
A spokesman for U.S. Atty. Eric Melgren declined to comment on the motion.
The first trial of Wittig and Lake lasted 10 weeks and ended Dec. 20 in a mistrial when jurors said they couldn't reach a unanimous decision on more than half of the 40 counts against the two men. A second trial in tentatively scheduled to begin May 9.
The first trial was characterized by frequent friction between Robinson and the defense attorneys, particularly Lake's lead defense counsel, Edward Little. Several times, she took the attorneys to task for what she considered their disruptive and disrespectful behavior in court.
At one point, she banned one of Lake's attorneys from the courtroom during closing arguments, claiming he tried to intimidate her by staring at her "like Charles Manson."
Following the mistrial, Robinson said she met with jurors and that they complained to her about the defense attorneys' conduct, even criticizing the wardrobe choices of Wittig's attorney, Paula Junghans.
On Jan. 4, during a hearing to schedule the second trial, Robinson blasted defense attorneys for 45 minutes over what she called their "horrendous" behavior and set a series of restrictions for the retrial.
The restrictions include stationing a federal marshal closer to the defense table and limiting the number of defense attorneys allowed in the room during arguments.
In their motions Friday, the defense attorneys said it wasn't a question of whether Robinson actually was biased but whether she appeared partial to an objective observer.
"Based on the record, we respectfully submit that the issue is not a close one," Wittig's attorneys wrote.
Prosecutors claim Wittig and Lake used corporate aircraft for personal trips without reimbursing the company or claiming the trips as taxable income, abused a company executive relocation program, pushed the company to make investments in which they had personal stakes and helped engineer a potential utility merger that would have netted them millions of dollars in so-called "change in control" payments.