LawReader : OUR MAIN - LAW DIGEST INDEX : FEN PHEN ARTICLES : Judge Bertlesman to remain on fen-phen case, criticizes defense

A federal judge in Covington again has refused to step aside from hearing a criminal case against three fen-phen lawyers, while blasting attorneys representing two of them.

In his written ruling Tuesday, U.S. District Judge William Bertelsman sharply attacked attorneys representing William Gallion and Shirley Cunningham Jr., saying they apparently "have committed serious ethical violations" in filing motions containing "outright misrepresentations of the record." He warned that "further unethical or contemptuous conduct" could result in "severe sanctions" against the defense attorneys.

Gallion, Cunningham and Melbourne Mills Jr. are scheduled for trial May 12 before Bertelsman, on one count each of conspiracy to commit mail fraud in their handling of funds from a $200 million fen-phen settlement in 2001.

The three, who allegedly pocketed millions that should have gone to clients they represented in the diet-drug settlement, could face up to 20 years in prison if convicted. The clients already have won a $42 million judgment against the attorneys in a separate state civil case.

Bertelsman's comments Tuesday came in a written response to motions from Gallion and Cunningham this month asking that he step aside from hearing the case. Bertelsman rejected both motions. Mills did not join in the recusal requests.

The defendants have criticized Bertelsman's actions several times since he ordered the three into custody last summer to await trial, saying they were a flight risk.

Bertelsman noted in his ruling Tuesday that Gallion previously had filed a recusal motion and a supporting affidavit, which Bertelsman already had denied.

In his 53-page recusal motion, Cunningham argued that Bertelsman had demonstrated bias against the defendants in various rulings, comments and actions. Cunningham cited Bertelsman's 2007 comment that "not only these three gentlemen are on trial, the whole legal profession is on trial."

Bertelsman, however, rejected the arguments.

"The proffered syllogism that these rulings indicate that the court has 'predetermined' defendant's guilt is so tenuous that it approximates a non sequitur," he wrote Tuesday.

Bertelsman's sternest language came near the end of his written ruling, when he declared that Cunningham's motion and accompanying affidavit contained "numerous misrepresentations and distortions" of the case record.

Bertelsman cited three examples from Cunningham's motion, particularly comments concerning Cincinnati attorney Stanley Chesley, who is a defendant, along with Cunningham, Gallion and Mills, in the state civil case.

Chesley and Bertelsman were co-counsels before Bertelsman became a federal judge. Bertelsman sharply rejected suggestions that he must have had "extrajudicial" knowledge of Chesley's role in the state case. And he rejected an assertion that Bertelsman had ruled that no action by Chesley could be questioned. Bertelsman said he made no such ruling.

Bertelsman noted that the U.S. Court of Appeals for the District of Columbia had suggested in another case that "disbarment" might be appropriate for lawyers who certify false affidavits in court.

"The court would be justified in immediately initiating disciplinary or contempt proceedings," Bertelsman wrote.

The Kentucky Bar Association has suspended Gallion, Cunningham and Mills.

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