Bob Brockman exaggerated his mental condition to fail competency testing, expert testifies

HOUSTON — A neuropsychologist who was an expert witness for the government in its tax evasion case against former Reynolds and Reynolds Co. CEO Bob Brockman said Brockman intentionally exaggerated his cognitive impairment to perform poorly on testing.

Dr. Robert Denney, who has conducted competency examinations of criminal defendants during his career for the Federal Bureau of Prisons, testified Tuesday that as a result of that exaggeration, Brockman's memory test results obtained through expert evaluations related to his criminal case are not a reliable indicator of his true cognitive functioning.

"It's my opinion that he has been exaggerating and malingering from the very beginning," Denney testified during the second day of a hearing to determine whether Brockman is competent to stand trial, in response to questioning from prosecutors.

In court filings, Brockman's attorneys have said their client "has either or a combination of Parkinson's disease dementia, or Alzheimer's disease dementia," and that the dementia is "permanent, progressive and incurable." His lawyers have said he is unable to assist them with his defense and has had trouble recalling information shared with him.

Federal prosecutors, meanwhile, intend to make the case this week that Brockman, 80, has been malingering, or feigning symptoms, to avoid prosecution on 39 counts that include tax evasion, wire fraud, money laundering and evidence tampering. He was indicted in October 2020 in what federal prosecutors say was a scheme lasting two decades to evade taxes on $2 billion in income.

"Looking at the total information in this case, I believe he is continuing to exaggerate and he is competent to stand trial," Denney testified, citing a review of not only test results but his real-world activity, including depositions in legal matters and speeches to Reynolds and Reynolds employees in 2018 and 2019, at about the same time his doctors were evaluating his memory symptoms.

Denney said Brockman may have mild cognitive impairment or even the "earliest stages of mild dementia, but even with that, in my professional opinion, Mr. Brockman is competent to proceed."

Denney's testimony followed that of another government expert witness, Dr. Ryan Darby, who testified Monday that he did not have an accurate representation of Brockman's cognitive abilities because his present symptoms are worse than his brain imaging would suggest. Prosecutors noted in a court filing last week that Darby was unable to determine whether Brockman is competent to stand trial.

Denney walked the court through tests he administered in May and October that assess cognitive functioning and whether the person being tested is demonstrating that he or she is applying appropriate effort to the tasks, the latter of which he testified can suggest that someone is exaggerating.

During their cross-examination of Denney, defense attorneys Tuesday referenced a 2019 federal court opinion in which a judge wrote that the court found Denney’s testimony in the case as a government expert “overall to be not credible and thus gives it little or no weight. As a whole, Dr. Denney focused on evidence that supported his conclusions while ignoring, disregarding, or minimizing evidence that called his conclusions into question.”

Brockman’s attorneys asked Denney if he discounted information provided by defense lawyers in Brockman’s case, including about Brockman’s ability to assist counsel, when Denney prepared his report for the court. Denney responded that in a forensic examination, his role is to take a critical assessment of a defendant’s abilities and weigh all available evidence.

“The exaggeration aspect of this, I view as a ruse, and that may very well have encompassed counsel,” he testified.

Deposition evidence

Michael Nemelka, a partner at the Kellogg Hansen law firm in Washington, D.C., also testified Tuesday about his experience deposing Brockman in January 2019 related to a multidistrict litigation case involving Reynolds and Reynolds Co. and rival dealership management system provider CDK Global Inc.

Nemelka testified that he represented dealership service providers in the case. He told prosecutors Tuesday that Brockman was “one of the most important depositions in the case” and that the former Reynolds CEO was “a very skilled opponent.”

“He was well prepared,” Nemelka testified. “He was very careful to make sure he understood my questions. He answered carefully and thoughtfully. He took time to make sure to formulate his answers.”
 
Brockman sat for the deposition over the course of two days, Nemelka testified, which he said was arranged to ensure that Brockman had a break due to a heart condition. Under questioning by a prosecutor, Nemelka said he did not recall any other health issues raised during the deposition and said he knew that no mental or cognitive issues were raised.
 
Under cross-examination, Brockman attorney Jason Varnado asked if Nemelka had seen or spoken to Brockman since the 2019 deposition, and if he had interacted with Brockman prior to the deposition, to which Nemelka said he had not.
 
Varnado also asked if Nemelka had any training or qualifications to spot cognitive deficiencies or signs of Parkinson’s disease, Alzheimer’s disease or dementia; Nemelka testified that he did not have such training and was not aware of Brockman presenting any Parkinson’s disease symptoms during the deposition.