Issue July 9, 2008

Judge not thy work ethic

When two attorneys landed in federal court last year, accused of stealing millions from a settlement awarded to their Kentucky clients harmed by the diet drug fen-phen, the judge made it clear he wanted the case resolved quickly.

Needless to say, declaring a mistrial was not what U.S. District Judge William O. Bertelsman had in mind, and it appears the unanticipated roadblock might have spurred the hard-nosed judge into semi-retirement.

Just four days after the jury declared it was hopelessly deadlocked, the judge announced on Monday that not only would he not preside over the pair’s retrial, but also that he would not hear any more criminal cases — ever.

It was good news for defendants William Gallion and Shirley Cunningham, who were indicted in June 2007 for allegedly stealing $65 million from the $200 million-settlement awarded to their clients in a class-action suit involving fen-phen. Throughout the case they have accused the judge of bias and unfair treatment, repeatedly asking him to recuse himself, but to no avail.

The two high-profile attorneys have been incarcerated since last summer, after Bertelsman warned the pair that if he granted them more time to prepare for trial as they had requested, he would throw them in jail. Although the assistant U.S. attorney prosecuting the case agreed both sides would benefit from additional time, the judge followed through on his threat.

“There’s tremendous temptation, incentive, to stall, and I think that’s what’s going on,” Bertelsman stated at an August 2007 hearing. And while he agreed to postpone the trial for several months, he abruptly announced that he was revoking the defendants’ bond as promised, and then ordered the marshal to arrest them on the spot. As he rose from the bench, the judge added, “I told you what I was going to do. You didn’t listen.”

Since then, the accused have been held on bonds in excess of $45 million, a staggering amount — even for such wealthy white-collar defendants — that their attorneys say is unprecedented in a criminal case.

Now that Judge Bertelsman is off the case, attorneys for Gallion and Cunningham are hopeful a new judge will release their well-to-do clients from the Boone County jail pending a retrial this fall.