Oklahoma is poised for its fourth execution this year after the state’s Pardon and Parole Board denied clemency on Tuesday for Benjamin Robert Cole.
Cole, 57, was sentenced to death in 2002 for the murder of his 9-month old daughter Brianna.
Cole snapped the baby’s spine, severing her abdominal aorta on Dec. 20, 2002. Prosecutors said Cole attacked Brianna after her cries interrupted his video game. She died later that day.
Prosecutors described Brianna as a “precious cutie pie” who never learned to walk or read and didn’t live long enough to celebrate her first Christmas or birthday.
Brianna “did not deserve to be murdered at the hands of her own father,” Assistant Oklahoma Attorney General Ashley Willis told the board. “Cole’s action left a tragedy behind, a tragedy that has not healed.”
The Pardon and Parole Board already denied Cole clemency once in 2015 by a 3-2 vote. The board voted to deny clemency again by a vote of 4-1 on Tuesday. Cole’s execution is set for Oct. 20.
Cole’s attorneys described him as a frail, severely mentally ill man who has spent the majority of his adult life in solitary confinement. Their presentation to the board included medical images that showed a large lesion on Cole’s brain. He has been diagnosed with schizophrenia and is so mentally ill that he cannot walk, often smears feces on himself and hoards food to the extent prison guards often have to remove maggot-infested leftovers from his cell, his attorneys said.
Cole refuses to take medication and will not participate in his own defense, they said. Pardon and Parole Board chairman Scott Williams said Cole had notified the board late Monday that he would not participate in the clemency hearing.
“Clearly he is one of the most vulnerable men on death row,” Katrina Conrad-Legler, one of Cole’s attorneys, told the board.
Cole has at least one more opportunity to stave off his execution. His attorneys are also seeking a trial to have him found incompetent to be executed, arguing that Cole’s mental illness is so severe that he does not understand that he is about to be put to death. An evidentiary hearing on Cole’s competence is set for Friday in Pittsburg County District Court. Cole’s attorneys said that the legal designation is rare, with a higher standard to find a person incompetent for execution than to stand trial.
If Cole’s execution goes through, he would be the sixth person Oklahoma has put to death since resuming executions last year.
Representatives from the Oklahoma Attorney General’s Office told the board on Tuesday that Cole is “not severely mentally ill,” is not schizophrenic and that his refusal to engage in the legal process is an example of Cole’s controlling and manipulating behavior. They argued that a jury heard about Cole’s mental health and disturbing childhood, which included living in a junkyard and physical and emotional abuse, and still sentenced him to death.
Willis told the board that Cole had a history of abusing other children and his previous wives prior to killing his daughter. Despite Cole’s health issues — prison reports shown to the board Tuesday state Cole mostly shuffles around the cold floor of his cell on his hands. He “can move more than his 9-month old daughter could,” Willis said.
“Mental illness does not provide for mercy in this case,” she said.
Cole’s attorneys told the board on Tuesday that Cole’s mental and physical health have deteriorated over the years and that he’s no longer a threat to society.
But others described Cole as a man who hasn’t changed since he fatally injured his daughter in 2002 before calmly returning to the couch to resume playing video games.
“I need to talk for Brianna, she has no voice. It was snuffed out 20 years ago,” Brian Young said Tuesday. “What would she say? She’d say ‘my daddy is the same today as he was 20 years ago.’”
Donna Daniel, sister to Brianna’s mother Susan Young, asked the board “not to deny us justice.”
“Please do not give this man clemency, please give our family justice for this baby,” she asked.
Oklahoma has scheduled 24 executions, including Cole’s, between now and December 2024. The state did not execute any inmates for more than six and a half years following a series of mishaps that resulted in a lengthy moratorium on the death penalty between 2015 and 2021.
The state resumed executions in late 2021 after a group of death row inmates lost their legal challenge over the state’s lethal injection method.
Oklahoma executions since 2021
Oct. 28, 2021 – John Marion Grant
Dec. 9, 2021 – Bigler Jobe Stouffer II
Jan. 27, 2022 – Donald Anthony Grant
Feb. 17, 2022 – Gilbert Postelle
Aug. 25, 2022 – James Allen Coddington
Upcoming executions this year
Benjamin Robert Cole – set for execution Oct. 20, 2022
Richard Fairchild – set for execution Nov. 17, 2022
John Hanson – set for execution Dec. 15, 2022