McALESTER, Okla. — Oklahoma on Thursday carried out the execution of Benjamin Cole, who was convicted of killing his baby daughter in 2002, even though he had brain damage and had been diagnosed since trial as having paranoid schizophrenia.
Cole was declared dead at 10:22 a.m. CDT. He was 57.
It was the sixth lethal injection at the Oklahoma State Penitentiary since executions resumed a year ago. Another 23 are scheduled through the end of 2024.
His attorneys said he was mentally ill and could not be executed under a U.S. Supreme Court ruling in 1986. But Warden Jim Farris rejected that claim in August and five courts refused after that to intervene.
Cole was scheduled for execution after a federal judge in June rejected death row inmates’ complaints about the sedative used in the lethal injection process. Those inmates did not pursue those complaints about the sedative on appeal.
Cole was sentenced to die for killing his baby daughter on Dec. 20, 2002, at their home in Claremore. The victim, Brianna Cole, was almost 9 months old.
“Few murders are as shocking as this one,” Attorney General John O’Connor’s assistants told the Oklahoma Pardon and Parole Board.
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What did Oklahoma death row inmate Benjamin Cole do?
Cole bent his daughter backward in her crib when she started crying and fussing, according to testimony at his trial. His action snapped the baby’s spine in half and tore her aorta, causing massive bleeding. Afterward, he went back to playing a video game.
The girl was eventually taken to a hospital but could not be revived. Police said Cole took his wife home afterward and told her he wanted to try to have another baby.
He confessed the next day after being told that a pathologist had deemed the death a homicide. “How many years am I looking at?” he said.
Benjamin Cole’s mental state
Cole had a growing brain lesion and his attorneys repeatedly described him as largely catatonic. At a court hearing Sept. 30, he sat slumped forward in a wheelchair for almost four hours. He kept his eyes closed and never spoke.
However, he spoke at length to a state psychologist who examined him in July at the Oklahoma Forensic Center in Vinita. Psychologist Scott Orth wrote in a report after the evaluation that he did not witness any substantial overt signs of mental illness.
Cole 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.”
Cole referred to himself as “just a super-duper hyperbolic Jesus freak” and said he hoped his spirit after his execution would return “to my Father in Heaven,” according to the report.
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He also expressed hope that Gov. Kevin Stitt after his execution “might have a change of heart about seeking capital punishment and focusing on death for inmates, and instead focus more on life and rehabilitation,” according to the report.
“It’s just something I hope he considers and takes to heart. I’ll pray for him and the people of Oklahoma that it happens.”
The warden testified at the hearing Sept. 30 that he relied heavily on the psychologist’s report when he decided that Cole was competent.
“I’ll do the right thing no matter what,” the warden testified. “And if I felt he was incompetent, I have no problem with moving that forward. Not a problem at all. But in this case here, I did not see that.”
Cole executed Thursday after multiple appeals fail
Cole’s attorneys had wanted the warden to initiate a process that would have resulted in a jury trial over his mental state. They then asked a Pittsburg Country judge, the Oklahoma Court of Criminal Appeals, the U.S. Supreme Court, a Tulsa federal judge and a federal appeals court to intervene. All refused.
The decision by the 10th U.S. Circuit Court of Appeals in Denver not to get involved came early Thursday morning.
The Oklahoma Pardon and Parole Board voted 4-1 in September to deny clemency to Cole despite his attorneys pleas for mercy because of his mental issues.
Cole did not request a traditional last meal. Correction officials said he was given a facility “religious meal” − vegetarian lasagna, salad, a tortilla and a fruit drink packet.
Witnessing the execution were reporters from The Associated Press, The Oklahoman, two Oklahoma City television stations and the McAlester newspaper.
Mental health and the death penalty
The U.S. Supreme Court held in a Florida case in 1986 that the constitutional prohibition against cruel and unusual punishment prohibits states from inflicting the death penalty upon a prisoner who is mentally ill.
A 2013 study found that 20 death row inmates in the United States had been found to be mentally ill since the landmark decision.
In Oklahoma, death row inmate Thomas Lee “Sunny” Hays was found to be mentally ill in 1986 after two experts testified he showed symptoms of paranoid schizophrenia.