McALESTER, Okla. (AP) – A 57-year-old Oklahoma man is scheduled to receive a lethal injection Thursday for killing his 9-month-old daughter in 2002, despite claims by his attorneys that he is mentally ill and incompetent to commit suicide.
Attorneys for Benjamin Cole do not dispute that he killed Brianna Cole by violently bending the baby backward, breaking her spine and tearing her aorta, but they say he is also severely mentally ill and has a growing brain lesion that continued to worsen while he was in prison.
Cole refused medical attention and ignored his personal hygiene, hoarding food and living in a darkened cell with little or no communication with staff or other inmates, his attorneys told the state Board of Pardons and Paroles last month during a clemency hearing.
“His condition has continued to decline over the course of this year,” said Cole’s attorney, Katrina Conrad-Legler.
The panel voted 4-1 to deny the pardon, and a district judge earlier this month found Cole competent to be executed. A last-minute appeal to the US Supreme Court seeking to halt his execution was rejected on Wednesday.
Cole has a brain lesion, separate from his diagnosis of paranoid schizophrenia, that has grown over the past few years and affects the part of his brain involved in problem solving, movement and social interaction, Conrad-Legler said.
State attorneys and family members of the victim told the board that Cole’s symptoms of mental illness were exaggerated and that the brutal nature of his daughter’s murder merited his execution.
Assistant State’s Attorney Tessa Henry said Cole killed his daughter because he was furious that her crying from her crib interrupted his video game playing.
“He is not seriously mentally ill,” said another prosecutor, Assistant District Attorney Ashley Willis. “There is nothing in the constitution or case law that prevents his execution.”
Prosecutors noted that the infant had numerous injuries consistent with a history of abuse and that Cole had previously served time in a California prison for abusing another child.
Board members also heard emotional testimony from family members of the murdered child’s mother, who urged the board to reject the pardon.
“The first time I saw Brianna in person she was lying in a casket,” said Donna Daniel, the victim’s aunt. “Do you know how horrible it is to see a 9-month-old baby in a coffin?
“This baby deserves justice. Our family deserves justice.”
Oklahoma Attorney General John O’Connor said in a statement that he is confident Cole is competent enough to be executed.
“Although his attorneys claim that 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 said. “An evaluator, not hired by Cole or the state, determined that Cole was competent to be executed and that ‘Mr. Cole does not currently exhibit any significant, overt signs of mental illness, intellectual impairment, and/or neurocognitive impairment.”
Cole’s execution would be the sixth since Oklahoma resumed executions in October 2021.
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