A federal judge Friday dismissed all charges against two former Westar Energy executives who were accused of looting the Kansas utility, granting a request by prosecutors that came just hours after the state's new U.S. attorney was sworn in.
Former Westar chief executive David Wittig and his top strategy officer, Douglas Lake, were charged with conspiring to inflate their compensation from the Topeka-based company and taking steps to hide their actions. A third trial date for the men, who were forced out of Westar in late 2002, was pending. Their first trial ended in a hung jury and a conviction in their second was overturned.
U.S. District Judge Julie Robinson dismissed all charges without prejudice, meaning they could be filed again.
Jim Cross, spokesman for newly sworn-in U.S. Attorney Barry Grissom, declined to comment Friday evening and prosecutors' motion to dismiss did not offer a reason for the move.
Even defense attorneys were taken by surprise.
"I credit the Justice Department for recognizing how flawed this case was," said Patrick McInerney, an attorney for Lake.
McInerney said a recent U.S. Supreme Court ruling narrowing the scope of the "honest services" law — which made it a crime to "deprive another of the intangible right to honest services" — crippled the government's case against Wittig and Lake. The high court's ruling in the case against former Enron CEO Jeffrey Skilling found that theft of honest services is only relevant in cases involving bribes and kickbacks.
Lake, 60, of New Canaan, Conn., and his family have been living with the charges for more than seven years.
"It was an immense relief," McInerney said of his client's reaction upon learning of the motion to dismiss. "It vindicates him and what he has said since the very beginning of this that he is innocent. He committed no crime and at long last it has been recognized."
Jeffrey Morris, one of Wittig's attorneys, said he was overjoyed and relieved for his client.
Wittig, 55, of Topeka, was convicted of bank fraud in an unrelated case in 2003 and was eventually sentenced to two years in prison, a sentence that his attorney said was affected by the Westar case. He was released in 2009.
Morris said all the presentations the defense had made did not involve the new U.S. attorney, but he did not know whether the timing was a coincidence. He said prosecutors were waiting on a review of defense arguments that the Skilling case caused a "huge defect" in this case.
Their third trial, expected to last 12 weeks, had been scheduled to begin next month before it was postponed during a brief hearing Thursday. The delay was tied to an unspecified pending decision by the Justice Department that had been expected later this week. It was unclear if that decision was related to the "honest services" law.
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