The Oklahoma Pardon and Parole Board was unmoved to recommend clemency for convicted killer Benjamin Cole after hearing testimony Thursday that he may be schizophrenic, is often uncommunicative and crawls on the floor of his death row cell.
Cole, 50, is set to be executed Oct. 7 for the 2002 murder of his infant daughter, Brianna, in Rogers County.
The board voted 3-2 to deny clemency after several hours of testimony from attorneys and a doctor representing Cole, who described him as someone in a declining mental state who can barely communicate with them.
Attorneys representing the state of Oklahoma and Rogers County District Attorney’s office said those opinions stand in stark contrast with that of the staff at Oklahoma State Penitentiary, including the warden. Prison staff have said they are able to get Cole to acknowledge his upcoming execution date, his crime and he sometimes signs necessary paperwork.
When he crawls on the floor or refuses to talk to his attorneys or psychiatrists who visit, those are simply choices Cole is making, said Jennifer Dickson, an assistant attorney general.
When it was time for Cole to speak to the board via video camera from prison, he declined to appear.
Cole is aware of the details of his crime and the reason Oklahoma plans to execute him, Dickson said.
In December 2002, Cole was playing a videogame when his infant daughter 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.
Family members and a social worker talked about the impact of losing Brianna Cole as an infant. Had she lived, today would have been her first day of seventh grade, they said.
Benjamin Cole was a violent man with a history of abusing his other children and previous wives, they said. He served prison time in California for abusing his son from his first marriage, and his second wife told investigators that one of his children was conceived when he raped her.
Tom Hird, one of Cole’s federal public defenders, told the Pardon and Parole Board members “there’s something wrong with Ben Cole’s brain that made him do the things he’s done.”
A Texas neuroradiologist provided a computer slideshow that indicated a large lesion or tumor visible in Cole’s brain scans from several years ago has likely grown or worsened.
This, paired with observations by 10 separate doctors over the past decade, is evidence that Cole has untreated mental illness (most likely schizophrenia) coupled with brain damage and is deteriorating into a regressed state of catatonic symptoms, said Dr. Raphael Morris, a psychiatrist from California who appeared on Cole’s behalf.
Morris visited Cole at the prison in McAlester on Wednesday and said the inmate sat slumped over in a chair, unresponsive the entire time. It wasn’t his role to ask the board to grant clemency or not, he said, just offer his medical opinion that Cole is mentally ill and staff at the prison may have been “minimizing” the symptoms and signs.
“It is my understanding we don’t execute mentally ill people who are incompetent,” he told the board.
Tom Gillert, a retired Tulsa County District 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.”
Robert “Brett” Macy, Patricia High and Vanessa Price all voted against recommending clemency. All three were appointed to the board by the governor.
Attorneys for Cole have been granted a hearing in Pittsburg County Court next week to examine additional evidence on what they say is Cole’s declining mental state.
Susan Otto, one of Cole’s attorneys, explained that schizophrenics are often difficult to treat and diagnose, living on the “margins of society,” as Cole had before he met Brianna’s mother.
“Ben is ill, Ben has been ill and Ben is getting worse,” she said.
Otto mentioned the Pardon and Parole Board had previously recommended clemency for another Oklahoma inmate with evidence of mental incapacity, Garry Thomas Allen. The governor decided against clemency, and Allen was executed in November 2012.
Reporters who witnessed the execution said Allen rambled for a few minutes before the drugs were pushed, and then said, “Huh? What?” after a prison staffer announced his execution was beginning. He did not appear to understand what was happening, they reported.
Cole was originally slated for execution in March, but a lawsuit by death row inmates challenging Oklahoma’s drug protocol stayed several executions earlier this year. In June, the U.S. Supreme Court upheld Oklahoma’s method using the controversial drug midazolam.
The challenge to Oklahoma’s use of midazolam was filed after the botched 43-minute execution of Clayton Lockett in April 2014. Lockett remained conscious long after the sedative was administered, with state officials ultimately blaming a failed IV.