Is Bob Brockman truly cognitively impaired to the extent that he won’t be able to help his lawyers defend him against federal tax evasion charges? Or is he, as prosecutors contend, exaggerating his symptoms to avoid a trial?
A federal judge will make that determination now that a competency hearing for the former Reynolds and Reynolds Co. CEO has concluded.
Among the evidence U.S. District Judge George Hanks Jr. will weigh: Testimony from medical experts, close contacts of Brockman and current and former executives of privately held Reynolds during the hearing that spanned eight days in November in a Houston courtroom. Hanks also will consider experts’ reports, medical records, brain images and filings from prosecutors and defense lawyers outlining their arguments.
Hanks has not specified a decision date, though it’s expected in the new year. Hanks last week granted a request by Brockman’s lawyers and prosecutors seeking more time to file briefs following the hearing that wrapped Nov. 24.
The judge must weigh nuanced testimony to determine how the case should proceed, lawyers who have worked on federal criminal and tax cases and are not involved in Brockman’s case have told Automotive News.
“The judge is generally going to compare sort of the weight of the evidence: ‘I’ve got two people telling me this. I’ve got one saying this. They’re not that far apart, and I found these two to be more credible,’ ” said Brian Hayes, a partner at Holland and Knight law firm in Chicago and former chief of the criminal division for the U.S. Attorney’s Office for the Northern District of Illinois.
Medical experts retained by prosecutors and defense lawyers generally agreed that Brockman likely has Parkinson’s disease. But the experts diverged on whether Brockman’s cognitive abilities are mildly impaired or have progressed to dementia.
Three prosecution experts testified that Brockman is exaggerating his symptoms, and two of them have said they believe he is competent to stand trial. Experts retained by Brockman’s lawyers, however, said they believe his impairment extends to his memory, mental processing speed, problem-solving and judgment skills and that he would struggle to understand the complex nature of the case.
A Department of Justice spokeswoman said the department generally does not comment on pending matters. Brockman’s lawyers did not respond to messages seeking comment.
Brockman, 80, was indicted in October 2020 on 39 counts, including tax evasion, wire fraud, money laundering and evidence tampering. He has pleaded not guilty and stepped down from his role as chairman and CEO of dealership management system giant Reynolds in November 2020.
Prosecutors pointed to Brockman’s continuation at the helm of Reynolds — and his seemingly strong performance during two civil depositions in 2019 answering technical business questions and recalling past events — as incongruent with a time period in which his symptoms of cognitive impairment were reported to have appeared. They contend Brockman had both the motivation and the capacity to malinger, or feign symptoms, to avoid prosecution.
Current Reynolds CEO Tommy Barras, who testified that Brockman chose him to be his successor, and former Reynolds CFO Craig Moss testified during the hearing that Brockman remained involved in important company decisions and they had no reason to doubt his cognitive abilities.
Dr. Christopher Whitlow of Wake Forest School of Medicine, a neuroradiologist retained by the defense, testified that images of Brockman’s brain, including MRI and PET scans, show a pattern that raises concerns about dementia. Whitlow testified that brain scans also show Brockman has lost brain volume, raising concerns about potential loss of cognitive function.
A second defense medical expert, Dr. Thomas Guilmette of Providence College in Rhode Island, testified that Brockman’s deposition performance two years ago could not be replicated today and that Brockman likely was able to draw on deep, retained knowledge of the topics at issue even if he was experiencing dementia at the time.
The issue of Brockman’s competency addresses only whether he can understand the case and assist with his defense for it to proceed to trial, legal experts have told Automotive News. It does not determine whether Brockman was competent at the time of the alleged offenses.
The federal statute allows a competency hearing “if there is reasonable cause to believe that the defendant may presently be suffering from a mental disease or defect rendering him mentally incompetent to the extent that he is unable to understand the nature and consequences of the proceedings against him or to assist properly in his defense.”
The statute requires judges to rule on a defendant’s competency “by a preponderance of the evidence.” Former federal prosecutor Hayes has said that is akin to “more likely than not.”
If Brockman is found to be competent, the case can proceed toward trial, lawyers have told Automotive News.
If a judge finds a defendant is not competent, the statute specifies the defendant be given treatment to determine whether he or she could gain the capacity to allow the case to proceed.