Lawyers for Mentally Ill Oklahoma Death-Row Prisoner Seek Clemency, Competency Trial

Lawyers for Oklahoma death-row pris­on­er Benjamin Cole have filed a peti­tion with the Oklahoma Board of Pardons and Parole ask­ing the Board to rec­om­mend to Governor Kevin Stitt that Cole’s sen­tence be com­mut­ed to life without parole.

The peti­tion, sub­mit­ted to the board on September 16, 2022, states that ​“Benjamin Cole today is a frail, 57-year-old man with a dam­aged and dete­ri­o­rat­ing brain, suf­fer­ing from pro­gres­sive and severe men­tal ill­ness who pos­es no threat to any­one in any way.” Cole, who faces an October 20, 2022 exe­cu­tion date, is the third of 25 death-row pris­on­ers Oklahoma has sched­uled to put death between August 2022 and December 2024, in an exe­cu­tion spree with­out par­al­lel in the state’s history. 

Cole, whom the peti­tion describes as ​“wheel­chair bound” and ​“cata­ton­ic,” suf­fers from a com­bi­na­tion of brain dam­age result­ing from mul­ti­ple child­hood and ear­ly adult­hood head trau­mas and a fam­i­ly his­to­ry of men­tal ill­ness exac­er­bat­ed by repeat­ed phys­i­cal and sex­u­al abuse as a child that also led to per­sis­tent alco­hol and drug abuse. Medical imag­ing, the peti­tion says, shows that Cole has ​“a siz­able, observ­able … lesion” in an area of the brain asso­ci­at­ed with para­noid schiz­o­phre­nia, and also exhibits symp­toms of Parkinson’s Disease.

Thomas Hird, one of the fed­er­al defend­ers rep­re­sent­ing Cole, said in a state­ment accom­pa­ny­ing the clemen­cy fil­ing that Cole’s severe men­tal ill­ness and brain dam­age ​“leave him with no ratio­nal under­stand­ing of why the State seeks to exe­cute him.” Cole’s men­tal health ​“has dete­ri­o­rat­ed dra­mat­i­cal­ly over his years in soli­tary con­fine­ment, and he is now so phys­i­cal­ly com­pro­mised that he can bare­ly move,” Hird said. ​“He is not a threat to any­one, and his exe­cu­tion would be both uncon­sti­tu­tion­al and unconscionable.” 

Cole’s lawyers also have filed a peti­tion in a Pittsburg County court — where Oklahoma’s death row is locat­ed — seek­ing a jury tri­al on his com­pe­ten­cy to be exe­cut­ed. The court is expect­ed to issue a rul­ing on that peti­tion on September 30. Cole’s clemen­cy hear­ing is sched­uled for September 27.

In an inter­view with Fox Oklahoma City affil­i­ate KOKH, Brett Farley, chair of Oklahoma Conservatives Concerned About the Death Penalty, said ​“When you have death row inmates that have seri­ous men­tal com­pe­ten­cy ques­tions at any point in the process, … it behooves us to take a step back and ques­tion what we’re doing here.” ​“We can­not be a state that…values the sanc­ti­ty of life, and, at the same time, think that we can have a sys­tem of jus­tice that resorts to death,” Farley, the for­mer direc­tor of com­mu­ni­ca­tions for the Oklahoma Republican Party, said.

Cole was con­vict­ed and sen­tenced to death in Rogers County, Oklahoma for killing his nine-month-old daugh­ter, Brianna, in December 2002. He admit­ted to police that he was respon­si­ble for her death. Prosecutors repeat­ed­ly offered him a plea deal for a life sen­tence, which he each time declined based upon what his lawyers describe as reli­gious delu­sions. Going to tri­al, Cole report­ed­ly told them, ​“was God’s will” and ​“would allow God to touch hearts.” 

Cole’s tri­al judge ordered men­tal health com­pe­ten­cy eval­u­a­tions in 2003 and 2004, but after a jury tri­al in September 2004 under Oklahoma’s unique com­pe­ten­cy-deter­mi­na­tion pro­ce­dures, Cole was ruled com­pe­tent to be tried. He was sen­tenced to death lat­er that year. 

The clemen­cy peti­tion details Cole’s upbring­ing by a fam­i­ly with a mul­ti-gen­er­a­tional his­to­ry of men­tal ill­ness and in a house­hold replete with drug and alco­hol addic­tion and phys­i­cal and sex­u­al abuse. It pro­vides evi­dence that Cole began exhibit­ing symp­toms of schiz­o­phre­nia in his ear­ly twen­ties and was for­mal­ly diag­nosed with schiz­o­phre­nia in 2008. Several affi­davits by psy­chol­o­gist Dr. David George Hough, who first exam­ined Cole in 2016, pro­vide details of a seri­ous ​“closed head injury” Cole suf­fered at age 20 when he was hit with a ham­mer while drink­ing at a bar and describe Cole’s dete­ri­o­rat­ing men­tal con­di­tion. His 2016 report said that Cole ​“presents as a clas­sic exam­ple of a severe­ly regressed chron­ic schiz­o­phrenic patient (with cata­ton­ic fea­tures), whose con­di­tion is like­ly fur­ther com­pro­mised by the pre­vi­ous­ly detect­ed brain dis­or­der cap­tured by neu­roimag­ing stud­ies.” Hough con­clud­ed that Cole did not under­stand or appre­ci­ate that he may be exe­cut­ed or the rea­sons for his pend­ing exe­cu­tion and was incom­pe­tent to be executed. 

In an April 2022 report, after see­ing Cole in his death-row cell, Hough said that he saw noth­ing ​“ratio­nal or coher­ent” in Cole’s con­duct. He again offered the opin­ion that Cole’s ​“cur­rent clin­i­cal pre­sen­ta­tion is con­sis­tent with his diag­no­sis of severe and chron­ic schiz­o­phre­nia with cata­to­nia, as well as MRI-doc­u­ment­ed organ­ic brain dam­age” and that Cole was incom­pe­tent to be executed. 

The clemen­cy peti­tion also pre­sent­ed a com­pe­ten­cy report from neu­ro­ra­di­ol­o­gist, Dr. Travis Snyder, who eval­u­at­ed Cole in spring 2022. Dr. Snyder said that an MRI admin­is­tered in 2022 revealed ​“marked­ly abnor­mal” detail and ​“demon­strates mul­ti­ple patho­log­ic find­ings,” includ­ing that Cole’s brain lesion ​“may be exac­er­bat­ing” his schiz­o­phre­nia. Snyder, too, offered an opin­ion that Cole is ​“not com­pe­tent to under­stand his legal proceedings.”

A major­i­ty of the board of par­dons must rec­om­mend clemen­cy before the gov­er­nor may com­mute a death-row prisoner’s death sen­tence. In August 2022, Governor Stitt denied clemen­cy to James Coddington, the first of the sched­uled exe­cu­tions, after a favor­able rec­om­men­da­tion from the board. Coddington was exe­cut­ed on August 25, 2022. Stitt issued a tem­po­rary reprieve to Richard Glossip, post­pon­ing his sched­uled September 22, 2022 exe­cu­tion date until December to pro­vide the Oklahoma courts time to deter­mine whether they would grant Glossip a hear­ing on his innocence claim.

A University of North Carolina study of exe­cu­tions from 2000 to 2015 found that ​“21^st-cen­tu­ry exe­cu­tions dis­pro­por­tion­ate­ly involve pris­on­ers diag­nosed with men­tal ill­ness and who have expe­ri­enced trau­mat­ic child abuse.” A Death Penalty Information Center review of the 98 U.S. exe­cu­tions car­ried out from 2017 through 2021 cor­rob­o­rat­ed those results, find­ing that near­ly 85% of those exe­cut­ed had evi­dence of one or more of: seri­ous men­tal ill­ness; brain injury, devel­op­men­tal brain dam­age, or an IQ in the intel­lec­tu­al­ly dis­abled range; and chron­ic seri­ous child­hood trau­ma, neglect, and/​or abuse. Information sup­plied by coun­sel for the pris­on­ers cur­rent­ly slat­ed for exe­cu­tion by Oklahoma also sug­gest that, like Cole, they are dis­pro­por­tion­al­ly indi­vid­u­als with seri­ous men­tal health issues.