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Parole Board rejects clemency for death-row inmate who broke Rogers County infant's back

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The Oklahoma Pardon and Parole Board rejected recommending clemency on Tuesday for Benjamin Robert Cole Sr., who is sentenced to death for the 2002 Rogers County murder of his 9-month-old daughter, Brianna.

Cole’s attorneys claim he is severely mentally ill and not a threat to anyone. He is scheduled to be executed Oct. 20.

The state Pardon and Parole Board voted 4-1, with no discussion, to deny clemency for Cole, who did not appear at the hearing.

This marks the second time in seven years that the board has denied Cole clemency, having voted 3-2 in 2015.

“The evidence of Mr. Cole’s severe mental illness presented during today’s clemency hearing reinforces the need for a full trial on his competency,” said Tom Hird, one of Mr. Cole’s attorneys. “He is so impaired that he does not rationally understand why the state intends to execute him and was unable to participate in the clemency proceedings.”

Cole 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 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.

Bryan Young, Brianna’s uncle, urged the board to reject clemency for Cole.

Young said he recently read for the first time Brianna’s autopsy report from the state medical examiner.

“How could any human do that to a baby?” Young said, calling the decision on clemency a “no brainer” for anyone familiar with the details of the crime.

Attorneys for Cole, meanwhile, argued that their client has progressive and severe mental illness. A 15-millimeter lesion in his brain continues to grow, they claim.

“He’s not faking it,” said Hird, one of Cole’s federal public defenders. “He’s not some sort of mastermind.”

In 2016, a clinical psychologist hired by Cole’s defense contended that Cole had schizophrenia and was incompetent to be executed.

The same psychologist, Dr. George Hough, said he was unable to get Cole to come out of his prison cell when he and others tried to visit him in April.

Cole, who uses a wheelchair, has gone months without talking to anyone, according to his clemency petition.

Cole’s attorney’s urged the board to be on the “right side of history” when it comes to executing the mentally ill.

“At this moment, Oklahoma has the opportunity to exhibit courage, to follow these standards, and to be on the right side of history by prohibiting the execution of Benjamin Cole, a severely mentally ill and physically infirm person,” according to his petition filing.

Meanwhile, the Oklahoma Attorney General’s Office concedes that while Cole exhibits signs of “minor mental illness” and “minor brain damage,” such a diagnosis by itself does not automatically indicate that someone is incompetent.

“However, as the courts have consistently found, Mr. Cole’s brain lesion does not interfere with his understanding of his case and his mental illness is not as severe as his attorneys are led to believe,” attorneys for Attorney General John O’Connor argued to the Pardon and Parole Board in a filing.

Rather, attorneys for the state argued that Cole’s claim that he is incompetent to be executed is a legal matter to be decided by the courts.

A Pittsburg County District Court judge is considering whether Cole is competent to be executed.

O’Connor disputed claims by Cole’s attorneys regarding the inmate’s mental health.

“Although his attorneys 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 claimed in a media release after the hearing.

“The evaluator, who was not hired by Cole or the State, found Cole to be competent to be executed and that ‘Mr. Cole does not currently evidence any substantial, overt signs of mental illness, intellectual impairment, and/or neurocognitive impairment.’”

Cole was evaluated July 5 by Dr. Scott Orth, director of forensic psychology at the Oklahoma Forensic Center in Vinita, as part of an order in a federal case involving Cole.

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.”

“At no point during (Dr. Orth’s) interview with Mr. Cole” did he “appear to ever lack any sort of capacity to engage in a discussion about his understanding of his pending execution,” Orth said.

Pardon and Parole Board member Larry Morris voted to recommend clemency for Cole.

Chairman Scott Williams and fellow members Edward Konieczny, Richard Smothermon and Cathy Stocker opposed recommending clemency.

The Rev. Don Heath, chairman of the Oklahoma Coalition to Abolish the Death Penalty, issued the following statement after the vote:

“Two of the five Pardon and Parole Board members voted in 2015 for clemency for Ben Cole. Seven years later, Mr. Cole’s mental condition has sharply deteriorated. A lesion in his brain has grown. He is no longer capable of communicating with his attorneys. He is no longer capable of recognizing that he is being punished. Yet only one of the five Board members voted for clemency today.

“There were no questions to any of the speakers. There was no discussion by any of the Board members before the final vote. This was a pro forma vote. The Board was just going through the motions in denying mercy for Ben Cole.”

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