Courts & Crime

Appeals court lets prosecution proceed in troubled Westar case

A federal appeals court will allow a third trial of two former Westar Energy executives to proceed but won't rule out throwing out the charges later on double jeopardy grounds.

In a long-awaited decision Monday, the 10th U.S. Circuit Court of Appeals held that double jeopardy didn't necessarily bar another trial on conspiracy grounds of former Westar Chairman, President and Chief Executive David Wittig and former Executive Vice President Douglas Lake.

The defendants' first trial on charges of looting Westar, Kansas' biggest electrical utility, ended with a hung jury in December 2004. The government tried them a second time six months later, and the jury convicted them of multiple counts of wire fraud, money laundering, circumvention of internal controls and conspiracy. It also ordered them to cough up millions of dollars in allegedly ill-gotten gains.

On appeal, the 10th Circuit in January 2007 reversed, throwing out the wire fraud and money laundering convictions outright for lack of evidence and ruling that the jury instructions on the circumvention and conspiracy counts were flawed.

After prosecutors said they would retry Wittig and Lake on the circumvention and conspiracy counts, Wittig and Lake appealed again, this time arguing that the 10th Circuit’s decision precluded a retrial. The two cited the double jeopardy clause of the Fifth Amendment, which bars being tried a second time for the same offense.

In rejecting the men’s legal challenge, the three-judge panel held that the conspiracy charges brought by the government were broader than the ones it threw out in 2007. But it also warned: “The defendants’ principal double jeopardy claim is not frivolous; in the end, it may even prove correct.”

The court said it was merely deciding that the case should not be dismissed at this stage of the proceedings.

As it did when it reversed Wittig’s and Lake’s convictions, the 10th Circuit’s 34-page opinion expressed skepticism about the strength of the government’s case. But it also said it had no jurisdiction at this intermediate stage — before a final judgment — to restrict the government’s evidence, only to decide whether the men could legally be retried.

Read the full story at