A federal judge in Atlanta has determined a former law partner at one of Atlanta’s largest firms is competent to stand trial, and rejected what he called “inconsistent and suspect” evidence from defense counsel during a recent competency hearing.
Friday’s ruling by Judge William Duffey Jr. of the U.S. District Court for the Northern District of Georgia means prosecutors may proceed with a federal fraud case against Bennett Kight, a former partner at Sutherland, Asbill & Brennan, now called Eversheds Sutherland.
It also means Kight likely has to find new counsel. Citing a conflict of interest raised by federal prosecutors, Duffey disqualified Kight’s longtime counsel in October, Dentons’ partner Barry Armstrong and Dentons. Dentons partners Randy Evans and Rachel Cannon asked Duffey to reconsider, claiming Kight suffers from dementia and would not be able to assist in bringing new counsel up to speed on the intricate financial transactions that are the basis for the criminal charges against him.
The law firm’s spokeswoman declined to comment. A spokesman for U.S. Attorney BJay Pak in Atlanta also declined comment.
In March 2016, Kight was charged with defrauding at least $2 million from three trusts that he had administered for years. The trusts benefited the heirs of the late industrialist and philanthropist Walter Bunzl. The Sutherland firm first began representing Bunzl and his companies during the 1940s after he and his family fled Austria and the Nazis as World War II began, according to court documents.
In a 31-page order, Duffey rejected claims that the 76-year-old attorney has experienced a progressive deterioration of his mental faculties since he suffered a brain hemorrhage in January 2008. Duffey said the claims were contradicted by subsequent medical examinations and by actions taken by Kight and his wife, Judith, for years following the brain bleed.
“The record demonstrates that [Kight’s] doctors and his family found [he] made a full recovery within months of his January 2008 hemorrhage,” Duffey said in his order. “Not until eight and a half years later, and shortly after [Kight] was indicted in the underlying criminal proceedings in this matter, did [he] report any concerns regarding a cognitive decline.”
Duffey said Kight’s wife has “a substantial interest in protecting her husband from a federal criminal conviction or potential incarceration.” Kight’s wife and son are named as co-defendants in ongoing civil litigation challenging Kight’s management of the Bunzl trusts, the order noted.
Duffey said evidence derived from that litigation, including Kight’s September 2015 deposition, “shows that [Kight] has taken positions in other court proceedings that discredit his current claim of incompetency.”
In his order, Duffey highlighted Kight’s legal battle to remain a trustee of the Bunzl trusts. He was removed by a Fulton County judge for reasons unrelated to competency in May 2015. Kight’s September 2015 deposition, far from demonstrating a cognitive decline, “was careful, thoughtful, deliberate, controlled, and his memory good, including of events over a decade before the deposition took place,” said Duffey, who asked to review the deposition during Kight’s two-day competency hearing last month.
In that deposition, Duffey said Kight confirmed that, although he was no longer a Sutherland partner, he continued working as of counsel at Sutherland until July 2015—although his lawyers alleged Kight’s mental faculties were declining since 2008.
A Sutherland spokesman told the Daily Report in 2015 that the firm was “surprised and disappointed” over the malpractice claims because Kight retired in 1999 and “provided no services, legal or otherwise, for or on behalf of the firm to these trusts after his retirement.”
But Duffey, citing his deposition, said Kight left Sutherland “only because the Bunzl family filed a lawsuit against the former firm alleging malpractice, and not because of any decline in his cognitive health.”
Duffey also noted that, when asked why he would not resign as executor of the Bunzl estate, Kight replied, “Because I don’t have any reason to resign.”
Duffey was also critical of medical records Kight’s attorneys submitted to back up claims he suffers from dementia. Those records were “based on the hearsay or double hearsay of other’s medical records without independent verification of reports provided by Mrs. Kight, resulting in unreliable and contradicted history information,” Duffey ruled.
Duffey also found little significance in the testing Kight underwent last November that came back positive with biomarkers for Alzheimer’s disease. Duffey noted the neurologist who made the finding reported that such biomarkers do not correlate with a patient’s true cognitive abilities “or provide a very good predictive marker” of future mental decline.
Duffey also cited as “exhaustive” and “comprehensive” the findings of Dr. Daniel Marson, the director of the Alzheimer’s Disease Center at the University of Alabama at Birmingham School of Medicine, whom Duffey appointed to make an independent assessment of Kight’s competence.
Duffey noted that in multiple cognitive and validity tests Marson administered to Kight, including one intended to uncover malingering, the neuropsychologist found instances of “non-credible responding” and results “well above the threshhold for suspect effort.”
Marson, according to the judge, found Kight demonstrated “no impairment” based on four test scales that assess competency to stand trial.
Moreover, Kight’s responses in interviews with Marson “reflected eloquent descriptions of his understanding of legal procedures and principles as they applied to his legal situation,” Duffey said in his order.
Kight, Marson found, could identify the roles of the different individuals involved in the courtroom proceedings and had “a good understanding of the charges against him and the seriousness of the charges.” Kight also expressed “a balanced view” as to whether “a jury would be for or against him,” according to Marson.
Duffey also cited Marson’s findings that Kight believed that a jury—on hearing the evidence—would support him. During the interview, Kight also told Marson the amount of money he was accused of stealing would weigh “significantly against the assumption of innocence.”
Duffey also took note of Marson’s testimony. The neuropsychologist testified that, when Kight had reflected on how a jury might view the charges against him, he added that he “was looking for a better and quicker way out of things.”
Read the decision below: