MCALESTER — Everyone seated in the courtroom leaned in, trying to discern what the disheveled, slumping killer in the wheelchair was murmuring and what, if anything, it meant.
“Do you believe God is going to let you die on October 7,” federal public defender Michael Lieberman asked his client, Benjamin Cole. “What do you think?”
In the hushed courtroom, Cole muttered: “Wait and see.”
Cole, sentenced to die for killing his own daughter, believes that if and when the state of Oklahoma executes him on Oct. 7, it will bring about a prophecy told to him at a jail revival in Bakersfield, Calif., in the 1980s, his attorneys argued Friday in Pittsburg County District Court.
At legal proceedings and in court filings, Cole’s attorneys have described him as a delusional schizophrenic with brain damage who barely communicates.
The Bakersfield Prophecy, as his attorneys refer to it, is when a man at a prison revival in California (where Cole served time in the 1980s) told Cole that the world would “know him.”
Cole believes that his role is to bring glory to the Lord’s name and now he thinks that the 2002 murder of his infant daughter was part of that prophecy, his attorneys said.
Attorneys representing the state and the warden of Cole’s prison argue he’s simply a devoutly religious, possibly remorseful man who believes God will protect and care for him. He’s lucid enough to be aware of his upcoming execution date and the crime for which he will die, they’ve argued.
Friday, Cole spoke quietly and sparingly for himself in the courtroom, at a hearing evaluating evidence on whether the warden at Oklahoma State Penitentiary had performed her legal duties to notify county officials of Cole’s mental state.
The Pittsburg County District Court hearing Friday focused on a narrow aspect of state law.
“If, after his delivery to the warden for execution, there is good reason to believe that a defendant under judgment of death has become insane, the warden must call such fact to the attention of the district attorney of the county in which the prison is situated, whose duty is to immediately file in the district or superior court of such county a petition stating the conviction and judgment and the fact that the defendant is believed to be insane and asking that the question of his sanity be inquired into. Thereupon, the court must at once cause to be summoned and impaneled from the regular jury list a jury of twelve persons to hear such inquiry.”
The prison’s warden, Anita Trammell, testified Friday that she has had conversations with Cole where he understands his conviction and death sentence and she does not have “good reason” to believe Cole is insane. Sometimes he crawls on the floor and doesn’t respond to questions, but sometimes he talks to her about the Bible and his past in the Air Force, Trammell testified.
Ultimately, the judge ruled, attorneys for Cole did not meet the burden of proving the warden neglected her duty under state law.
District Judge James Bland said that “clearly there is some evidence” that supports claims Cole may not be sane, but Cole’s attorneys did not meet the legal requirement of proving the warden was negligent in her duty under the law.
A separate federal court challenge regarding Cole’s sanity remains pending.
Friday’s hearing was certainly unusual, with at least seven armed Department of Corrections officers guarding an inmate who barely moved and refused a lunch break. Attorneys for Cole and the state had to sit in a chair next to him while asking questions just to elicit the occasional mumbled response.
Cole answered a few questions posed directly to him by Judge Bland during the hearing, and chatted sparingly with the correctional officers transporting and guarding him.
Cited nearly as often as statute and case law was the Bible, with entire chapters of the Book of Luke read at Cole’s request.
“I will read all of Luke 21 and you can tell me why you think it’s important,” Lieberman said while questioning Cole.
“But before all these things, they will lay their hands on you and persecute you, delivering you up to the synagogues and prisons. You will be brought before kings and rulers for My name’s sake. 13 But it will turn out for you as an occasion for testimony. 14 Therefore settle it in your hearts not to meditate beforehand on what you will answer; 15 for I will give you a mouth and wisdom which all your adversaries will not be able to contradict or resist. 16 You will be betrayed even by parents and brothers, relatives and friends; and they will put some of you to death. 17″
Parts of Luke 21 refer to end times, and Luke 21:36 is a frequent reference of Cole’s, Lieberman said.
Then the questioning turned to the Book of Revelation and the blood moon, another fixation of Cole’s.
Lieberman asked: “Do you think the end times are here?”
“Yes,” Cole responded.
“Why do you think that?” Lieberman asked.
1948. The Jerusalem Clock started, Cole responded quietly.
Is Jesus coming soon?
Today, he answered. This very second. Praise Jesus.
Assistant Attorney General Jennifer Dickson attempted to ask Cole several questions on cross-examination, but the only response she got was when she asked if he could hear her.
Then it was the judge’s turn. He spoke loudly and directly to Cole from the bench, eliciting a few mutterings in response.
“Has somebody explained why you’ve been brought to court today?” Bland asked.
“Hearing,” Cole said.
Are you aware there’s an execution date that’s been set?
Do you understand why there is an execution date set?
“Go home. Go home to be with Jesus.”
The execution is a sentence that was imposed. Do you know why you’re being sentenced that way?
“Death of daughter,” Cole muttered.
In December 2002, Cole was playing a video game at home in Rogers County when his infant daughter, Brianna, started crying during her nap time. He pressed pause on the game, went into her room and bent her feet back until he snapped her spine.
He resumed playing his video game until the child’s mother, Susan Young, noticed something was wrong. Cole at first denied there was a problem until Brianna turned blue and foam came out of her mouth. She died a short time later at a hospital. Investigators said Cole’s primary concern after confessing that he killed his daughter was how many years in prison he would get.
The court also heard Friday from Dr. Raphael Morris, the same psychiatrist who spoke earlier in August at Cole’s clemency hearing, where the Oklahoma Pardon and Parole Board voted 3-2 against recommending clemency for Cole to Gov. Mary Fallin. Cole declined to appear at that hearing.
Morris testified Friday that in his medical opinion, Cole has been incompetent since at least 2008, if not earlier. Scans from 2004 show a lesion in his brain and much of his unusual behavior observed by attorneys and prison medical staff are classic symptoms of schizophrenia. Untreated while on death row, Cole’s condition has worsened over the past decade, Morris testified.
Morris’s testified that some of Cole’s religious utterings are symptoms of schizophrenic delusions. This resulted in a line of cross-examination by attorneys for the state — which seeks to execute Cole for a murder considered “especially heinous, atrocious, cruel or depraved” — suggesting that he’s simply a devoutly religious man entitled to his beliefs.
“Aren’t there are a large number of people who believe Christ is coming at any minute?” Assistant Attorney General Robert Whittaker questioned Morris. “Did he say he was glad he was forgiven?”
Julie Gardner, an investigator with the Oklahoma Indigent Defense System, testified Friday that in years of representing Cole, he has never assisted attorneys in his defense.
His appearance, hygiene, mental state and verbal skills have degraded over the years that OIDS has worked with him, she said. Other inmates have told them that Cole refuses to shower and bathes himself from the toilet water in his cell.
In storage, attorneys at OIDS have more than 13 boxes of correspondence Cole has sent them over the years, all of it religious ramblings and scribblings in unintelligible code.
He requests only Bibles from his attorneys, which they send and he sends back. He has returned more than 35 Bibles to his defense team over the years, Gardner testified. He talks only of his ministry, not his case.
“What is his ministry?” defense attorney Susan Otto asked.
“I have no idea,” Gardner responded. “I can’t say he thinks he’s a messiah. He certainly thinks that he’s a messenger here to tell us something.”
He does seem to understand that Oct. 7 is the day Oklahoma plans to execute him, Gardner said.
When she talked to him about it, Cole uttered “a weird giggle,” and told her to “wait on the Lord and pray.”
“Sometimes the Lord likes to show up at the very last second.”