'Catatonic' Oklahoma Inmate Faces Execution Unless Supreme Court Intervenes

Attorneys for an Oklahoma death row inmate have asked the U.S. Supreme Court to stay his upcoming execution.

Benjamin Cole, 57, is scheduled to die by lethal injection at the Oklahoma State Penitentiary (OSP) in McAlester at 10 a.m. Thursday. He was sentenced to death in 2004 after being convicted of murdering his 9-month-old daughter, Brianna. Prosecutors said Cole bent her backward in her crib when her cries interrupted his video game, snapping her spine and tearing her aorta, in December 2002.

Cole was among 25 inmates whose execution dates were set in July after a federal judge rejected a challenge to the state's lethal injection protocol. Last Friday, Cole's attorneys filed a petition with the Supreme Court asking it to consider if Oklahoma's procedural framework for determining competency to be executed violates the Eighth Amendment.

Cole's severe mental illness includes paranoid schizophrenia and brain damage, according to his attorneys, and his condition has "deteriorated to the point that he is largely catatonic."

"Benjamin Cole is incapacitated by his mental illness to the point of being essentially nonfunctional," Tom Hird, an attorney representing Cole, told Newsweek. "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 take care of his basic hygiene."

Hird continued: "He simply does not have a rational understanding of why Oklahoma seeks to execute him. The warden's refusal to initiate competency proceedings is an abuse of his discretion, and we are asking the courts to stay Mr. Cole's execution and order a competency trial."

Cole's attorneys maintain that both the U.S. Constitution and Oklahoma law forbid the execution of a person who is mentally incompetent.

The petition to the Supreme Court says that Cole's attorneys contacted OSP Warden Jim Farris in May this year and enclosed updated materials that concern Cole's deteriorated mental state.

They included 2016, 2018 and 2022 reports from a psychologist, George Hough, detailing Cole's "severe mental illness, decompensated mental state, and incompetency for execution." Also included was a 2022 report from a neuroradiologist about Cole's "abnormal MRI and brain lesion."

The petition says an Oklahoma Forensic Center psychologist, Scott Orth, evaluated Cole on July 5 "as agreed by both parties" and deemed Cole competent.

Cole's counsel later contacted Farris and provided a declaration from Hough that "offered reason to doubt the accuracy and methods of Dr. Orth's evaluation and report," the petition said.

Farris "refused to initiate a competency hearing, relying on the implausible report of a State-hired doctor who claimed to have had a lengthy and lucid conversation with Mr. Cole in July 2022," Cole's attorneys said in a news release. This was "something that prison staff, medical professionals, and his attorneys have been unable to do for years," the release added.

In the petition, the attorneys argued that a district court in Pittsburg County, Oklahoma, ruled that Cole was competent to be executed without hearing any testimony from experts.

In a statement to Newsweek, Oklahoma Attorney General John O'Connor noted that the Oklahoma Court of Criminal Appeals this week determined that the judge's decision "was supported by the evidence."

"Mr. Cole is competent for the judgment and sentence to be performed," O'Connor said. "Less than three weeks ago, the Oklahoma Pardon and Parole Board voted 4-1 not to recommend clemency. Two weeks ago, a district judge in Pittsburg County held that Mr. Cole is competent to be executed. Monday, the Oklahoma Court of Criminal Appeals determined that the decision of the district judge in Pittsburg County was supported by the evidence."

Newsweek has reached out for comment to the Oklahoma Department of Corrections.