Judge says Rogers County death-row inmate is competent to be executed

In an order following an evidentiary hearing Friday, Pittsburg County District Judge Mike Hogan found that Benjamin Robert Cole Sr. “does not meet the required ‘substantial threshold’ showing of insanity.”

“In considering the totality of the evidence, including Dr. (Scott) Orth’s report, the court finds the defendant is competent to be executed as currently scheduled on Oct. 20, 2022,” Hogan wrote in the order.

Cole, 57, has been on death row at the Oklahoma State Penitentiary in McAlester since 2004, when a Rogers County jury convicted him of first-degree murder.

His trial included evidence that he broke the back of Brianna Cole and ruptured her aorta on Dec. 20, 2002, after her crying interrupted a video game he was playing at home, according to trial testimony.

Attorneys for Cole, who they say has paranoid schizophrenia and brain damage and crawls in his cell, had asked Hogan to direct prison officials to initiate competency proceedings for Cole.

Tom Hird, an attorney for Cole, said in a release to the news media that an appeal was planned.

“Benjamin Cole is incapacitated by his mental illness to the point of being essentially non-functional,” Hird said in a release. “His own attorneys have not been able to have a meaningful interaction with him for years, and the staff who interact with him in the prison every day confirm that he cannot communicate or take care of his most basic hygiene. He simply does not have a rational understanding of why Oklahoma seeks to execute him.“

But Hogan noted that while Cole’s own attorneys have not been able to communicate with him, he did participate in an approximate 150-minute evaluation at the Oklahoma Forensic Center in Vinita in July.

Cole, while being evaluated at the Oklahoma Forensic Center, said he understood that he was there to see if he was “mentally fit for court and competent here to see if I can go ahead and I guess be executed.”

“The report is very persuasive on the issue of the defendant’s current capacity,” Hogan wrote in his order.

The order follows a 4-1 vote by the state Pardon and Parole Board on Sept. 27 to deny Cole a clemency recommendation.

During the Parole Board hearing, relatives of Brianna urged members to deny clemency.