November 14, 2010 - 4:27pm

http://cjonline.com/news/local/2010-11-14/lake_seeks_case_expungement

After he faced dozens of criminal charges in two trials lasting several months apiece — and after the charges were dismissed in August — former Westar Energy executive Doug Lake wants seven years of prosecution in his case erased.

Lake wants the case — including his fingerprints and mug shots — expunged from government records.

On Aug. 20, all charges against Lake, 60, and co-defendant David Wittig, 55, were dismissed. Lake is the former executive vice president of strategic planning. Wittig is the former Westar chief executive officer, president and board chairman.

"Given (Lake's) line of work, arrest records relating to money laundering, wire fraud, deprivation of 'honest services' will be economically devastating, virtually assuring that he will not be able to obtain employment in the field to which he has dedicated his professional life," Lake said in the motion.

Opportunities for schooling, employment or professional licenses and perhaps his ability to travel by air could be restricted by arrest records even when a defendant is acquitted or exonerated of the charges, the motion said.

The government may have a legitimate interest in maintaining arrest records, but courts have found that interest must be weighed against the arrested person's constitutional right to "privacy and the real injury the arrest record will cause the innocent arrestee," the motion said.

Quoting a 1975 10th U.S. Circuit Court of Appeals case, Lake's attorneys said it is appropriate to expunge a defendant's arrest records when an indictment is dismissed because of the unconstitutionality of the charge.

Lake wants the U.S. Marshals Service, the FBI and the U.S. Department of Justice, including the U.S. Attorney's office for the District of Kansas, which prosecuted him, to destroy all records of his arrest.

That includes Lake's fingerprints and his photographs in their records and databases. He also wants his fingerprints and photographs removed from the National Crime Information Center, a computer database used nationwide by law enforcement agencies. Then Lake wants certifications by those agencies that the court-ordered action has been done.

Lake and Wittig originally each were charged with one count of conspiracy, one count of forfeiture, 14 counts of circumvention of internal controls, seven counts of wire fraud and 17 counts of money laundering, a total of 40 counts. In the first trial, jurors couldn't reach a verdict, and a mistrial was declared.

In the second trial, jurors convicted Wittig and Lake of most counts, but the 10th U.S. Circuit Court of Appeals overturned those convictions and threw out many of the charges.

A third trial was scheduled to begin Sept. 20 but had been postponed Aug. 19.

But on June 24, the U.S. Supreme Court overturned part of the federal "honest services" statute used by prosecutors in the earlier trials of Wittig and Lake. The Supreme Court said the statute can be used only in cases tied to bribery and kickbacks.

The 1988 statute has been used to prosecute corrupt public officials and corporate executives who breached their duties when they didn't give "honest services" to the public or an employer. The Wittig and Lake case didn't involve bribery and kickbacks, based on evidence in the first two trials.

On Aug. 20, the U.S. Attorney's Office filed a motion to dismiss the case, and U.S. District Judge Julie Robinson granted it.

Before the dismissal, Lake, of New Canaan, Conn., was charged with one count of conspiracy and 13 counts of circumvention of internal financial controls. Wittig, of Topeka, was facing charges of one count of conspiracy and 14 counts of circumvention of internal financial controls.

Prosecutors haven't answered Lake's expungement request, but Lake's motion said prosecutors oppose it.

So far, a date hasn't been scheduled to deal with Lake's motion.