Temporary impotency given as defense by fired Marco Island officer accused of sex on duty
A video obtained by the Marco Island Police Department shows one its former officers putting his clothes on outside of his patrol car. Naples Daily News
Within the next month, the Marco Island Police Department will know whether it has to take back one its now-former officers accused of having sex on duty.
Along with denying the actions took place and pointing to a lack of evidence, former officer Kevin Hennings delivered a unique defense during arbitration proceedings: temporary impotency.
Kevin Hennings and his physician, Dr. Andrew Guidry, testified during the proceedings he was being treated at the time alleged incidents occurred, making it highly implausible for it to have happened.
"I'm not proud of the fact that I exchanged text messages with this girl, but for that moment, I kind of felt like a man again," Hennings told arbitrator William Hobgood in trying to explain his behavior. "I hadn't had an erection in as long as I can remember. ... This girl showed an interest in me and she talked all flirty and whatnot, and I should have stopped it."
Arbitration hearings wrapped up last month in Hennings' case, meaning a decision is expected soon.
Internal affairs investigations two years ago determined Hennings was among three now-former officers implicated in the department scandal.
Then-Sgts. James Inlow and Neil Giansanti resigned their posts before the conclusions of investigations into their conduct, which eventually sustained multiple violations of department policies.
Data retrieved from electronic devices of a woman involved with all the officers at various junctures revealed a treasure trove of evidence.
Messages proved Inlow was sexting and soliciting Adderall from the woman. A 45-second video showed Giansanti putting on his pants outside of his patrol vehicle in a church parking lot.
While the woman was being interviewed by investigators, she told them of her dalliances with Hennings.
Hennings was placed on paid leave for more than five months before being terminated from the department in September 2018.
In law enforcement agency misconduct cases, the burden of proof is the preponderance of evidence, the lowest standard behind clear and convincing and proof beyond a reasonable doubt.
In layman's terms, it means the claim is more likely true than not or at least 50.1% likely.
"Picture the scales of justice just enough to tip more to one side," Craig Trocino, director of the University of Miami Law's Innocence Clinic, said.
The question is now is whether that that threshold was met.
Who's more credible?
Hennings and his legal counsel have denied the claims from the beginning, pointing to a lack of physical evidence and witnesses, thus making it a case of he-said, she-said.
The department felt it met the evidentiary bar by coupling the woman's allegations with text messages and GPS data showing the two parties at the same place at the same time.
Trocino said it was possible to reach the preponderance of evidence threshold in cases of he-said, she-said.
"You can if the fact-finder believes them more than the other," Trocino said.
Former Police Chief Al Schettino told Hobgood he believed the woman's accusations to be credible because she was truthful regarding the other two officers. He also stated she was more credible than Hennings, notating his lack of recollection for certain events or any of his message exchanges conversations with the woman.
Hennings' attorney, Michael Braverman, questioned how the department could find her credible when the woman's sister testified that she had a penchant for telling tales.
Braverman also noted that there was no digital evidence to support her claims of how she got Hennings' phone number and the department not sustaining similar allegations made against then-officer Brian Granneman.
Her mental health issues along with documented drug and alcohol use were also used to impeach her credibility.
Marco Island police officers let a woman off with a warning despite smelling marijuana while she was driving. Marco Eagle
Along with introducing an incident reported by the Naples Daily News where officers let her go despite suspecting her of driving under the influence of marijuana, Braverman referenced another crash four years ago where police found marijuana in the vehicle and had the same suspicions.
"It appeared that it was a DUI crash," Granneman said. "However, we didn't put her through field sobriety exercises or anything like that because she had suffered a pretty significant injury to a leg."
Given the injuries that the woman suffered, Granneman said it would have been "too attackable to try to make it a DUI case."
Sgt. Kyle Kreis receives a phone call from Marco Island Police Chief Al Schettino in which he is instructed not to give a ticket. Marco Eagle
Medical claims attacked
Before the medical claims were examined during arbitration, they were briefly introduced during the internal affairs process where Hennings signed a release for the city to have access to his records.
While Schettino acknowledged the release in the notice of termination, he stated he was not swayed as many of the records were duplicative and "not exculpatory relative to the charges."
Capt. Richard Stoltenborg testified during the arbitration that while the city reviewed what was released, there were suspicions about the reports being backdated, which showed medical treatment predated any of the alleged sexual contacts.
Stoltenborg said in reviewing medical records from two different physicians, he felt their diagnoses canceled each other out.
On cross-examination, Braverman asked Stoltenborg is the department ever interviewed Guidry about Hennings' treatment to which he answered no. Braverman then said Hennings' must have been "really Svengali or something" to have established an alibi before the alleged contact occurred.
Stoltenborg did introduce that he considered Guidry's past, which included multiple run-ins with the law, a DEA raid and discipline from the Department of Health based on allegations of sexual misconduct.
When it came for him to testify, Guidry disputed many of the accusations against him, stating they were based on lies.
He also addressed Stoltenborg's suspicions and the question if he was ever approached about changing the medical reports.
"No. Hell, no. I wouldn't do that anyway. That's ridiculous," Guidry said.
Connect with reporter Devan Patel: @DevanJPatel (Twitter) or email@example.com
This is a six-month review of the most-read crime stories in Collier County on naplesnews.com from March 2019 to August 2019. Naples Daily News