FILE – This undated photo provided by the Oklahoma State Department of Corrections shows Benjamin Robert Cole Sr. Oklahoma’s Pardons and Parole Board voted 4 to 1 on Tuesday, Sept. 27, 2022 to deny clemency to Cole, who is on death row for killing his 9-month-old daughter in 2002, bringing him one step closer to his scheduled lethal injection next month. (Oklahoma State Dept. of Corrections via AP, File)
OKLAHOMA CITY (AP) — Oklahoma’s Pardons and Parole Board voted 4 to 1 on Tuesday to deny clemency to a man on death row for killing his 9-month-old daughter in 2002, bringing him one step closer of his lethal injection scheduled for next month.
Lawyers for Benjamin Cole, 57, did not dispute that Cole killed Brianna Cole by forcibly bending the child backwards, breaking her spine and ripping her aorta, but argued that he was both seriously mentally ill and had a growing lesion on his brain which continued to worsen while he was in prison.
Cole refused medical attention and ignored his personal hygiene, hoarding food and living in a dark cell with little to no communication with staff or other prisoners, his attorneys told the panel.
“His condition has continued to deteriorate over the past year,” Cole’s attorney Katrina Conrad-Legler said.
The lesion on Cole’s brain, which is separate from his diagnosis of paranoid schizophrenia, has grown in size in recent years and affects the part of his brain that deals with problem solving, movement and social interaction. added Conrad-Legler.
Cole declined to speak to the panel.
State attorneys and family members of the victim told the council that Cole’s symptoms of mental illness were exaggerated and that the brutal nature of his daughter’s murder merited his execution.
Assistant Attorney General Tessa Henry said Cole killed his daughter because he was furious that she was crying from her crib and interrupting him while playing a video game.
“He’s not seriously mentally ill,” said another prosecutor, Assistant Attorney General Ashley Willis. “There is nothing in the constitution or the case law that prevents its execution.”
Prosecutors noted that the child had numerous injuries consistent with a history of abuse and that Cole had previously served time in California for abusing another child.
Council members also heard moving testimonies from family members of the slain child’s mother, who urged council to reject clemency.
“The first time I got to see Brianna in person I was lying in a coffin,” said Donna Daniel, the victim’s aunt. “Do you know how horrible it is to see a 9 month old baby in a coffin?
“This baby deserves justice. Our family deserves justice.
Cole is scheduled to receive a lethal injection Oct. 20 at Oklahoma State Penitentiary in McAlester. However, his attorneys are still awaiting a ruling from a Pittsburg County judge on whether to hold a trial to determine if Cole is fit to be executed.
“The evidence of Mr. Cole’s serious mental illness presented at today’s clemency hearing reinforces the need for a full trial on his jurisdiction,” said Tom Hird, one of Mr. Cole, in a statement after the hearing.
Oklahoma Attorney General John O’Connor said in a statement that he was grateful for the panel’s decision and believed Cole was competent enough to be executed.
“Although his lawyers claim Cole is mentally ill to the point of catatonia, the fact is that Cole fully cooperated with a mental evaluation in July of this year,” O’Connor said. “The evaluator, who was not engaged by Cole or the state, concluded that Cole was competent to be executed and that ‘Mr. Cole presently exhibits no manifest and substantial signs of mental illness, intellectual disability and /or neurocognitive impairment.
Cole’s execution would be the sixth since Oklahoma resumed the death penalty in October 2021.
The state once had one of the busiest death chambers in the country, but halted executions in September 2015 following a botched execution the previous year and a mix-up in which deadly bad drugs were handed over to prison for execution.
It was later learned that the same bad drug had been used to execute another inmate, and executions in the state were suspended.