For eight years after he suffered a cerebral hemorrhage, Bennett Kight, a former law partner at the firm once known as Sutherland Asbill & Brennan, has fought civil lawsuits to remain the trustee of a deceased client’s multimillion-dollar trust funds, never suggesting he had any mental impairment.
But federal prosecutors say Kight’s attorneys took a different stance after a federal grand jury in Atlanta indicted him in 2016 and after prosecutors successfully pushed to disqualify Kight’s longtime counsel from the criminal case. Kight was indicted on multiple fraud charges associated with the theft of more than $2 million from trusts Kight managed while at the firm now known as Eversheds Sutherland.
The contradictory positions taken by Kight and his attorneys were at the heart of a two-day competency hearing last week in federal court in Atlanta over whether Kight is suffering from dementia or is attempting to evade a jury trial.
U.S. District Judge William Duffey Jr. is weighing competing claims over whether Kight remains competent to assist in his defense against federal fraud charges or is so mentally impaired that he must rely on lawyers disqualified from the case to continue to defend him.
Kight’s lawyers—while defending Kight’s acuity in managing trusts established by the late Georgia industrialist and philanthropist Walter Bunzl, which the lawyer is accused of plundering in ongoing civil litigation—have contended just the opposite in his criminal case. They claimed Kight, now 77, is afflicted with dementia that hearkens back to a 2008 cerebral hemorrhage. His lawyers sought a competency hearing late last year, arguing Kight is no longer capable of providing assistance to any replacement counsel.
Bunzl heirs sued to remove Kight as trustee in 2013, but he successfully fought to hold onto the post until 2015, when a Fulton County judge removed him for reasons unrelated to any cognitive lapse.
That competency hearing took place in federal court over two days last week. It pitted neuropsychologist Daniel Marson, director of the Alzheimer’s Disease Center at the University of Alabama School of Medicine at Birmingham, who was appointed by U.S. District Judge William Duffey Jr. to conduct a forensic competency exam of Kight, against Jason King, an Atlanta neuropsychologist who does neuropsychological examinations for the National Football League. King’s findings have backup from neurologists affiliated with Emory University.
Reports by Marson and King on whether Kight suffers from dementia—as well as Kight’s medical records under consideration by the court—remain sealed. But the testimony of the neuropsychologists at the two-day hearing highlighted their contradictory findings. King testified that Kight demonstrated “a mild cognitive impairment” that was sliding toward dementia stemming from the 2008 brain bleed and that Kight’s cerebrospinal fluid contained biomarkers indicative of Alzheimer’s disease.
Marson said Kight is competent to stand trial after concluding he is not suffering from dementia and flunked several “validity” tests intended to determine whether he was attempting to manipulate the results of his cognitive tests.
Whether U.S. District Judge William Duffey Jr., the presiding judge in the criminal case, will reconsider his decision to remove Kight’s lawyer Barry Armstrong and others from Dentons, and whether the criminal case against Kight ultimately goes forward, now rest on which conclusion Duffey finds most credible.
Duffey initially requested that Kight take the stand to speak about his mental deterioration. But the judge reconsidered amid concerns from Dentons partner Randy Evans, who joined the case after Armstrong was disqualified.
Evans said Kight was not competent to waive his Fifth Amendment right to shield himself from self-incrimination and that Kight’s wife, who was appointed as her husband’s guardian in a sealed hearing in Fulton County last year, could not waive that right for him.
Prosecutors later noted that Kight’s counsel chose not notify the judge or opposing counsel in the pending civil cases that Kight’s wife was appointed as his guardian until the current Bunzl trustee and counsel for trust beneficiaries—aware of Kight’s federal incompetency claims—sought a court-appointed guardian ad litem.
Kight’s expert, Dr. Jason King, also dismissed the validity tests Marson administered, saying they were “inappropriate to use” with individuals suspected of having dementia. King acknowledged that Kight failed three validity tests.
King also said the Alzheimer’s biomarkers detected in tests of Kight late last year, coupled with the 2008 brain bleed that left a “hole” of damaged brain tissue, contributed to his assessment that Kight “was at the more severe end of a range that would be classified as mild cognitive impairment.”
King also suggested that, based on his own discussions with Kight, “My opinion was that he would have significant problems understanding and remembering complicated real estate and financial transactions” associated with the criminal charges against him—an interview he acknowledged he had omitted from his report.
But King acknowledged under cross-examination by Assistant U.S. Attorney Douglas Gilfillan that in evaluating Kight, he also selectively omitted from his reports the conclusion of physicians who treated Kight’s 2008 cerebral hemorrhage, and found Kight had “quite totally recovered” and experienced no further complications.
Gilfillan also pointed out that Kight never had a follow-up exam or complained about cognitive decline stemming from the hemorrhage until after he was indicted eight years later.
King also testified that he asked Kight in an interview to explain what role the real estate and financial transactions had as to the charges he is facing. “He was not able to explain to me in a way I could understand them,” King said.
King said he also asked Kight if he could comprehend the nature of the criminal charges against him, if he reviewed records associated with them. “He told me he thought that he could, if his wife, Judy, was there to explain it,” he said.
Marson, who also has a law degree and contributed to the American Bar Association’s “Assessment of Older Adults with Diminished Capacity: a Handbook for Lawyers,” challenged King’s dementia diagnosis and his conclusion that Kight’s 2008 brain bleed led to a cognitive decline.
He echoed prosecutors in pointing out that King omitted references to the positive findings of Kight’s doctors that Kight appeared to have recovered.
Marson also testified that the presence of biomarkers associated with Alzheimer’s alone does not mean Kight’s mental faculties were deteriorating.
“The diagnosis by itself does not constitute incompetence,” he said. “It reflects a heightened risk that, over time, someone would develop Alzheimer’s, but it does not assume that someone will develop Alzheimer’s.”
Marson also suggested King’s findings “perpetuated and propagated” similar findings by other physicians who adopted his conclusions “at face value.”
And he challenged medical conclusions King drew about Kight’s cognitive decline, saying they were largely based on interviews with Kight’s wife. Marson said the account memorialized in King’s report “differed markedly from her account to me in my evaluation in which she said there wasn’t anything remarkable in the kinds of changes she saw in her husband during this period.”
Marson also defended the validity tests he administered to Kight. Marson said Kight failed some of the cognitive tests, but that those scores, which he labeled as outliers, were “likely suspect.” He also said Kight’s results on the validity measures suggested the cognitive test results were “not credible.”
Marson also said Kight’s poor cognitive test results were at odds with Kight’s “rich, articulate, fluent, spontaneous speech he demonstrated in the interview.”
Marson said that when he asked Kight if he ever experienced anything “strange or weird” in a courtroom—an effort to discover whether he might have lost touch with reality at any point—Kight “extemporaneously and very articulately reiterated … a very entertaining and interesting story he had very good recall about. … It was a good example of being able to speak spontaneously and extemporaneously about a legal case.”
It also fit the broad criteria Marson outlined as “strange,” without being out of touch with reality, and had resulted in a good outcome for Kight, who even remembered the judge’s name, Marson said.
Marson said Kight’s assessment of his current legal situation was similarly articulate.
At one point in their interview, Kight told Marson: “I cannot help but believe, if the jury knows the facts, they would be for me. But I can say $2 million is a lot of money. … Although I absolutely believe in my innocence, I would like to find a better quicker way out of my dilemma that I am currently in.”
“It was beautifully expressed,” Marson concluded. Not only did it not indicate any cognitive decline, he added, it was also “a very insightful and balanced view of the situation. Not only his understanding of the jury’s’ function, but also how a jury would view his particular case and circumstance.”
Correction: A previous version of this story incorrectly attributed a quote to Dr. Jason King.