Topeka ? A federal judge on Tuesday denied a motion to delay the start of the second trial for former Westar executives David Wittig and Douglas Lake.

U.S. District Judge Julie Robinson said the trial would begin as scheduled next Tuesday, unless the 10th U.S. Circuit Court of Appeals overrules her and grants a stay. Robinson said the men have indicated they will file an appeal to the 10th Circuit and seek an expedited hearing on their contention that they have a right to unlimited legal fees from Westar.

Lake filed a motion last week in U.S. District Court asking for the delay while he appealed a ruling that put the legal fees from Westar into an escrow account and then blocked the transfer of funds. Wittig later filed a motion to join in Lake’s efforts.

Wittig, 49, and Lake, 50, both are facing 40 counts alleging they took millions of dollars from Westar, the state’s largest electric utility. They have pleaded innocent.

Their first trial ended in a mistrial Dec. 20 when jurors couldn’t reach a verdict on all counts.

In her ruling Tuesday, Robinson noted that Westar has so far paid $8,323,715 in attorneys fees for Lake and Wittig.

“In light of the fact that defense counsel have already been paid over eight million dollars, it is difficult to discern any irreparable harm from a small delay in the advancement of attorneys fees, should the (10th Circuit) rule that this Court erred,” Robinson wrote.

Robinson also ruled that the government and public interest would be harmed if the trial is delayed much longer because numerous witnesses and potential jurors have been summoned to prepare for the trial next Tuesday.

Wittig, of Topeka, is former chief executive officer, president and chairman of the board of Westar, the state’s largest utility. Lake, of New Canaan, Conn., is former executive vice president of corporate strategy.

As part of a forfeiture count against the men, prosecutors want to seize the legal fees, which were required by the company’s articles of incorporation.

Wittig and Lake billed Westar for $7.9 million to pay legal costs after the first trial, an amount the U.S. attorney’s office said exceeded the budget for the federal prosecutors’ office in Kansas for a year.