A federal grand jury has indicted an inmate on Oklahoma’s death row, apparently in anticipation that his Rogers County murder conviction and death sentence will be overturned on jurisdictional grounds linked to the McGirt Supreme Court ruling.
Benjamin Robert Cole Sr., who turns 56 Thursday, faces a federal charge of first-degree murder in Indian Country in connection with the 2002 murder of his 9-month-old daughter, Brianna Cole.
The charge was filed Tuesday in Tulsa federal court.
Cole has been on death row at the Oklahoma State Penitentiary in McAlester since 2004 after a Rogers County jury convicted him of first-degree murder. His trial included evidence that Cole broke Brianna’s back and ruptured her aorta on Dec. 20, 2002, after her crying interrupted a video game he was playing at home, according to trial testimony.
Cole, who some claim is mentally ill, has challenged his state conviction and death sentence based on the McGirt U.S. Supreme Court ruling and subsequent state appellate court rulings that said the state of Oklahoma didn’t have the jurisdiction to prosecute major crimes involving American Indians on five American Indian reservations within the state.
As part of their rulings, courts have said Congress has never disestablished the reservations held by the Muscogee (Creek), Cherokee, Chickasaw, Choctaw and Seminole nations. The rulings mean only the federal or tribal governments may prosecute cases covered by the McGirt ruling.
Acting U.S. Attorney Clint Johnson provided the following statement in response to a Tulsa World request for comment regarding the indictment:
“A federal grand jury returned an indictment this week charging Benjamin Cole Sr. with the 2002 murder of his 9-month-old daughter, Brianna Cole. Assistant U.S. Attorneys Jeff Gallant and Valeria Luster are working closely with District Attorney Matt Ballard as this case moves from state to federal jurisdiction.
“I understand it will be difficult for Brianna’s family to go through the criminal justice process for a second time. I want to reassure victims and their families that my office is working around the clock to support them as these cases proceed in federal court.”
For Cole, the federal charge gives him a chance to get off death row.
While death is a penalty option in capital crimes the federal government prosecutes, Cherokee Attorney General Sara Hill said Tuesday that in some circumstances the tribe would have to opt in for that punishment option, and she said the Cherokee Nation has not opted to include the death penalty among punishments for crimes committed on its reservation.
While Cole’s appeal of his state conviction before the Oklahoma Court of Criminal Appeals is still pending, his case appears to be traveling the same road that others have taken before their state cases were dismissed.
State officials took no position on Cole’s claims that his case qualifies under McGirt.
A court filing on behalf of Cole indicates that Brianna’s enrollment in the Cherokee Nation was pending when she was killed. Her enrollment was approved six months after her death. The filing also indicates that the crime occurred in Claremore, which has been a part of the Cherokee Nation reservation since at least the 1860s, according to recent court rulings.
The state Pardon and Parole Board, by a 3-2 vote in 2015, rejected Cole’s bid for clemency weeks before his scheduled execution date. Proponents of Cole’s clemency testified at the time that he was mentally ill, although state prison officials claimed that he could effectively communicate with others when he wanted something.
Since then, Cole’s execution and those of four others have been put on hold by the state Court of Criminal Appeals.
The courts have already overturned the convictions and sentences of two other Oklahoma death-row inmates.
Patrick Dwayne Murphy, convicted by a McIntosh County jury in a 1999 slaying, faces retrial in Muskogee federal court after the U.S. Supreme Court overturned his judgment and sentence in July.
Federal charges have yet to be filed against Shaun Michael Bosse, convicted in a 2010 triple killing in McClain County, since the Oklahoma Court of Criminal Appeals ordered his state conviction and sentence overturned based on the crime’s falling under McGirt.
McGirt v. Oklahoma: Supreme Court decision and aftermath