Debate at Bob Brockman hearing: Competent to stand trial or not?

HOUSTON — Former Reynolds and Reynolds Co. CEO Bob Brockman appeared in a federal courtroom last week for a hearing to determine whether he is competent to stand trial on charges that he evaded taxes on $2 billion in income.

Lawyers for Brockman, 80, say he has incurable dementia that has left him unable to assist in his defense against 39 federal counts, including tax evasion, wire fraud, money laundering and evidence tampering. Prosecutors maintain that he is exaggerating symptoms of cognitive impairment to avoid prosecution.

Here are highlights from the first week of testimony in the hearing, which is expected to continue this week.

In opening statements, lawyers for the government and for Brockman outlined contrasting positions about whether Brockman is competent to assist in his defense.

Prosecutors said Brockman's case demonstrates "the extraordinary lengths that a man is willing to go to evade accountability." They added Brockman had both the motivation and capacity to fake his symptoms. Understanding that requires examining the evidence against him in the broader criminal case, they said, as well as examining the dual images that Brockman presented to doctors and to the world as CEO of the privately held dealership management system provider.

Brockman lawyer Kathy Keneally said past activities aren't indicative of whether Brockman is currently able to assist in his defense.

"There's only one issue before the court at this hearing: Can Bob Brockman today understand criminal proceedings that have been brought against him and assist his counsel in his defense?" Keneally said. "Does Bob have the sufficient present ability to consult with his lawyers with a reasonable degree of rational understanding? Can Bob today and going forward participate in a meaningful way in his defense? He cannot."

Doctors who evaluated Brockman as medical experts for both the government and the defense offered different views of his cognitive abilities and impairment.

Dr. Ryan Darby, a neurologist who evaluated Brockman as an expert witness for the government, testified that he does not have an accurate representation of Brockman's cognitive abilities and that the symptoms Brockman has presented are worse than brain imaging would suggest. Prosecutors noted in a court filing that Darby was "unable to determine if the Defendant is competent to stand trial."

A second government expert witness, Dr. Robert Denney, a neuropsychologist, said he believed Brockman intentionally exaggerated his cognitive impairment to perform poorly on testing, and he "is continuing to exaggerate, and he is competent to stand trial." Brockman's lawyers raised questions about Denney's credibility as a government expert in an unrelated federal case and asked whether he discounted information provided by the defense when he prepared his report for the court.

Dr. Thomas Wisniewski, a neurologist who testified as a defense expert, wrote in an October report that Brockman has "a permanent, progressive and irreversible cognitive impairment that is currently in the moderately severe stage," which "would severely limit his ability to interact with his attorneys to any substantive, sustained degree, or to participate meaningfully in a courtroom trial," according to a court filing.

Current Reynolds CEO Tommy Barras and former Reynolds CFO Craig Moss testified they had no doubts about Brockman's cognitive abilities when he was Reynolds' chief executive.

Lawyers who took Brockman's deposition in two separate legal matters in 2019 — one representing dealership service providers in a multidistrict litigation case and one with the Federal Trade Commission, which is conducting an antitrust investigation involving Reynolds and DMS rival CDK Global Inc. — described Brockman as prepared and capable of recalling information. Both testified that no mental or cognitive issues were raised.

Evatt Tamine, who has been identified as Individual One in the indictment against Brockman and received immunity from the government for cooperating in the investigation, testified about his involvement in efforts to shield Brockman's control of an offshore trust structure.

Tamine, a lawyer who worked with Brockman for years, testified that Brockman was a hardworking executive who often worked long hours and had excellent recall, though that began to change several years ago. Brockman would repeat himself, which was unusual, Tamine testified.

Brockman lawyer Jason Varnado asked Tamine whether he doubted the behavioral changes were real or thought Brockman was fabricating them, to which Tamine responded, "Not at all."

Tamine also told defense lawyers during cross-examination that he believed Brockman was innocent and that the government's indictment contained some factually inaccurate information, Bloomberg reported.