COVINGTON, Ky. (Legal Newsline)-Embattled plaintiffs' attorney Shirley Cunningham Jr. is asking a federal judge to release him from jail as he waits to be retried on charges he bilked clients out of millions from Kentucky's Fen-Phen settlement.

Cunningham, 53, and co-defendant William Gallion, 57, have been held in the Boone County Detention Center without bail since August.

Cunningham is being held on $45 million bond; Gallion on $52 million bond.

A jury considered the case against Cunningham and Gallion for 52 hours, over eight days, and remained deadlocked. U.S. District Judge William Bertlesman declared a mistrial last month.

The men are held on charges of conspiracy to commit wire fraud in a scheme to allegedly beguile more than 400 clients out of money from Kentucky's $200 million Fen-Phen diet-pill settlement.

In court papers filed this week, Cunningham said he should be released because the majority of the jury in the first criminal trial thought he was not guilty.

Citing comments a jury foreman made to the press, Cunningham noted the jury voted 10 to 2 acquit him.

Prosecutors allege that the lawyers took a $127 million payment when they should have been paid just $60 million.

The jailed attorneys have contended that Kentucky's rules on class action lawsuits are ambiguous. They said they relied on Boone Circuit Judge James Bamberger, who presided over the original Fen-Phen class action suit, to set the legal fees they received.

The Fen-Phen settlement was reached with diet drug maker American Home Products, now known as Wyeth, in Boone Circuit Court in 2001.

The attorneys' former clients have already won a $42 million civil award against the lawyers who represented them in a case taking on the manufacturer of Fen-Phen, the diet-drug linked to heart damage and pulmonary hypertension.

From Legal Newsline: Reach reporter Chris Rizo at chrisrizo@legalnewsline.com.