A federal appeals court has dealt a "fatal" blow to the prosecution's case against two former Westar Energy Inc. executives, and long-standing criminal charges against the two men should be dismissed, attorneys argued in motions filed Wednesday.

"The Tenth Circuit's January 2007 decision dramatically changed the landscape of the government's case," defense attorneys for former Westar Executive Vice President Douglas Lake said in their motion to dismiss. Patrick McInerney of Husch Blackwell Sanders LLP represents Lake.

David Wittig, former chairman of Topeka-based Westar (NYSE: WR), signed on with Lake's motion in U.S. District Court in Kansas, which argues that none of the 40 counts against the executives can stand after the appeals court's rejection of guilty verdicts on 24 of the counts.

The first trial of Wittig and Lake ended in a mistrial in December 2004 after the jury couldn't agree on a verdict in the complex, 40-count trial.