Attorney Shirley Cunningham Jr. claims U.S. District Judge William Bertelsman's prejudice in the case renders him "wholly incapable of serving as a judge," The (Louisville) Courier-Journal reported Tuesday.

Bertelsman has held Cunningham and co-defendants William Gallion and Melbourne Mills Jr. without bail since August, pending their trial May 12.

The men are held in charges of conspiracy to commit wire fraud while allegedly trying to bilk 440 clients out of $46 million in Kentucky's $200 million fen-phen settlement.

Brian Butler, a former federal prosecutor who isn't involved in the case, described the motion to disqualify the judge as "very risky" because it is unlikely the federal judge who hears the motion will rule that a fellow

judge is biased.

If the case then goes back to Bertelsman, Butler said, "The defense can only hope that the presiding judge will be extra cautious about appearing to be biased and, therefore, give the defense a few breaks."