McALESTER — Death row inmate Benjamin Cole sat slumped over in a prison wheelchair for most of an almost four-hour court hearing Friday, his head at his knees and his eyes closed.
The gaunt 57-year-old with long hair and a graying beard stayed silent as his attorneys sought to save his life.
Cole is set to be executed by lethal injection at 10 a.m. Oct. 20 at the Oklahoma State Penitentiary for murdering his baby daughter. His attorneys contend he is mentally ill and must be spared.
They are asking Pittsburg County District Judge Mike Hogan to order the warden to initiate proceedings that will result in a jury trial over Cole's competency. The judge said he will rule Monday or Tuesday.
Cole bent his daughter backward in her crib when she started crying on Dec. 20, 2002, at their home in Claremore. His action snapped the baby's spine in half and tore her aorta. He then went back to playing a Nintendo video game, "007."
Brianna Cole was almost 9 months old.
His attorneys contend there is good reason to believe Cole has become mentally ill because of a growing brain lesion, his odd behavior and diagnoses of paranoid schizophrenia. They contend the warden abused his discretion in August by refusing to initiate the competency proceedings.
Warden Jim Farris stood by his decision Friday.
"I'll do the right thing, no matter what," he testified.
He said he believes Cole is competent to move forward with the execution based on what he's seen.
He said he relied heavily on the report of a psychologist who examined Cole in July for 150 minutes at the Oklahoma Forensic Center in Vinita. The expert, Scott Orth, concluded the inmate does not currently show any substantial overt signs of mental illness that would keep him from understanding he is about to be executed.
The warden said what really jumped out to him from the report was Cole's statement when asked about visual hallucinations. "Are you asking if I see little green men running around on the floor that beam up in a spaceship to Venus and look for the purple monsters," Cole replied with a laugh, according to the report. "No, I do not see things. I never have."
Cole also told the psychologist, according to the report, that "they want to make sure I'm competent, and that I realize first that I killed my daughter, and I went through a trial for taking my daughter's life and a jury found me guilty, they found me guilty of murder, and I was given the death penalty for that, and I accept responsibility for that."
The warden acknowledged during testimony Friday that Cole rarely talks. The warden revealed, however, that Cole did speak up Sept. 15, the day he was moved to a so-called "execution cell" near the chamber.
He said Cole wanted to make sure he would stay warm in his new cell. "That was probably the biggest concern that he had," Farris said.
Cole said he did not want a last meal, the warden also recalled.
Cole never made eye contact as he was read his death warrant Sept. 15 but nodded his head that he understood, the warden said.
"I felt like it was almost boring to him to hear this again," the warden said.
Cole had been days away from execution in 2015 when it was called off because of a drug mix-up.
Among the evidence given to the judge of odd behavior was a report that 147 food trays had been found in his cell in 2017.
Cole was not called to testify Friday. In 2015, he only answered a few questions while testifying at a similar hearing in Pittsburg County District Court.
Asked at the 2015 hearing why he was being executed, he responded, "Go home. Go home to be with Jesus."
His execution will be postponed if the judge agrees a jury should decide his competency. He will not be executed if a jury decides he has become mentally ill.
The U.S. Supreme Court ruled in 1986 that the constitutional prohibition against cruel and unusual punishment prohibits states from executing death row inmates who have become mentally ill.
He declined to appear by video at his clemency hearing Tuesday. The Oklahoma Pardon and Parole Board voted 4-1 to deny clemency.
The decision means Gov. Kevin Stitt cannot intervene to commute the inmate's sentence to life in prison without the possibility of parole. In Oklahoma, a governor can commute a death row inmate's sentence only if the board recommends clemency.
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"One is absolutely sickened, not by the crimes that the wicked have committed,
but by the punishments that the good have inflicted." -- Oscar Wilde
