While international media descended upon an Oklahoma prison last week to cover a high-profile execution that didn’t happen, attorneys for death row inmate Benjamin Cole quietly filed a motion seeking a stay because Cole’s “mental health issues have ravaged (his) mind to the point that he is now incompetent to be executed.”
Federal public defenders representing Cole have asked the state to stay his Oct. 7 execution because their client “is a mentally ill man who suffers from schizophrenia and observable brain damage,” the filing states.
“Cole’s mental capacity to consult with counsel and to participate meaningfully in his defense has been in question since the inception of this case and his condition has deteriorated steadily since his conviction,” according to the motion.
Attorneys for Cole have argued at two separate hearings in August that he is mentally ill and incompetent, saying he crawls on the floor of his cell, barely communicates and bathes himself with toilet water.
According to a Wednesday court filing by the Attorney General’s office, however, Cole is simply a man “who has made peace with his fate and is accepting of his punishment,” who chooses not to communicate with his attorneys and medical professionals.
“(Cole) understands he is responsible for his crime and is being executed, (his) main concern is being ‘right with God,’” the filing by Assistant Attorney General Jennifer Dickson states. The state should carry out his execution, the response argues.
Cole, 50, was found competent to stand trial and was sentenced to death for the murder of his infant daughter, Brianna, in Rogers County in 2002. He snapped her spine in half when her crying interrupted a video game he was playing.
At his most recent hearing in Pittsburg County, a judge ruled that the warden of Oklahoma State Penitentiary had performed her duty under state law, but said while ruling from the bench: “clearly there is some evidence that supports the position that he is not competent or sane.”
That hearing was solely to determine whether Oklahoma State Penitentiary warden Anita Trammell “abused her discretion” in not notifying the Pittsburg County District Attorney about Cole’s mental state. By law, the prison’s warden is supposed to notify the district attorney if an inmate becomes insane prior to his death sentence being carried out.
Wednesday’s filing by the Attorney General’s office said Pittsburg County District Judge James Bland’s ruling that the warden had fulfilled her duty under Oklahoma law “is an implicit conclusion … that (Cole) failed to establish ‘good reason to believe’ that he is insane to be executed.”
To be considered “sane,” for execution under Oklahoma statutes, the inmate must possess “sufficient intelligence to understand the nature of the proceedings against him, what he was tried for, the purpose of his punishment, the impending fate which awaits him, and a sufficient understanding to know any fact which might exist which would make his punishment unjust or unlawful and the intelligence requisite to convey such information to his attorneys or the court.”
Cole’s attorneys have argued that brain scans from 2004 show he has a significant lesion, and that further scans should be done. Officials at DOC have blocked their efforts at further testing, the public defenders say.
At the August hearing in Pittsburg County, Cole’s attorneys argued that their client believes his execution is part of a prophecy he learned of from a man at prison revival in California (where Cole served time in the 1980s).
Cole believes that his role is to bring glory to the Lord’s name and now he thinks that the murder of his infant daughter was part of that prophecy, his attorneys have argued.
Prior to that hearing, the Oklahoma Pardon and Parole Board was unmoved to recommend clemency for Cole after hearing testimony about his declining mental state contrasted with a violent history of child and spousal abuse.
The board voted 3-2 to deny clemency. Tom Gillert, a retired Tulsa County judge, and William Latimer, a retired Tulsa Police officer, both voted to recommend that Gov. Mary Fallin grant Cole clemency.
Gillert was appointed to the board by the Oklahoma Court of Criminal Appeals and Latimer was appointed by the chief justice of the Oklahoma Supreme Court.
Before the vote, Gillert said he had no question regarding why the jury recommended a death sentence for Cole, but that a vote for clemency was giving the governor an opportunity to consider “information that we don’t have yet,” including updated brain scans of the inmate.
“We do have something here that indicates that there is something that should be looked at,” he said. “In a civilized society, you ought to pay attention to it.”
This story was written as part of The Next To Die, a multi-newsroom collaboration tracking upcoming executions. To see scheduled executions nationwide, please visit https://www.themarshallproject.org/next-to-die