- Associated Press - Thursday, August 20, 2015

OKLAHOMA CITY (AP) - A state board voted Thursday not to endorse a clemency request from an Oklahoma man sentenced to die for killing his 9-month-old daughter in 2002, despite his attorneys’ argument that he is too mentally ill to be put to death.

Benjamin Robert Cole of Claremore is scheduled to be executed Oct. 7 after being convicted of first-degree murder in Rogers County for killing his daughter, Brianna Cole, whose spine was broken and her aorta torn after she was forcefully bent backwards.

Cole has not denied killing the child, but his attorneys presented evidence to the Oklahoma Pardon and Parole Board before its 3-2 vote that his mental and physical condition has significantly deteriorated since he has been in prison and that he has been unable or unwilling to assist his legal team for years.

“It is wrong to kill mentally ill people. It is uncivilized and it is inhuman,” said Susan Otto of the Federal Public Defender’s Office. “And it is the governor’s prerogative to make that decision. That’s all we’re asking for you to do, is to allow the governor to exercise her constitutional duty and to make that decision.”

The governor cannot grant clemency without a recommendation from the panel, although she does have the authority to grant a stay of execution for up to 60 days.

The board heard from Dr. Raphael Morris, a forensic psychiatrist, who said Cole has a lesion in his brain and suffers from schizophrenia that has worsened during his time in prison. During a visit with Cole this week at the Oklahoma State Penitentiary in McAlester, Morris said Cole sat before him in a catatonic state and didn’t make eye contact or utter a single word over the course of an hourlong visit.

“This man is 50 years old, and he’s deteriorating in front of our eyes, and it’s not by choice,” said Morris, who noted that ten different mental health professionals have diagnosed Cole with mental problems since his arrest.

At one point during his incarceration, Otto said Cole did not shower or come out of his cell for two years.

But state prosecutors argued that Cole’s trial jury was presented with evidence of his brain damage and mental health problems and still sentenced him to death. Assistant Attorney General Jennifer Dickson presented affidavits from several prison guards and mental health workers who said Cole is able to speak to them in a coherent manner. OSP Warden Anita Trammel wrote in her affidavit that Cole told her he knows he is scheduled to die for murder.

“If he chooses not to help his attorneys, that’s by choice,” Dickson said. “He has the ability. He knows what’s going on.”

Dickson also said the issue of Cole’s competency to be executed is being heard before a judge in Pittsburg County, where the prison is located, and that he will not be executed until that matter is decided.

Cole previously was convicted of abusing another child from an earlier marriage and sentenced to two years in prison in California, and had a history of violence toward women, Dickson said.

The board also heard from Bryan Young, Brianna Cole’s uncle, who said he wanted to provide a voice for his niece, who he said would be starting seventh grade this year if her life hadn’t been cut short.

“Who knows what she would have been,” Young said. “Maybe an athlete or a dancer.”

Gov. Mary Fallin’s three appointees on the board, former police officers Brett Macy and Vanessa Price and ex-prosecutor Patricia High, all voted against recommending clemency. The two members who voted to recommend clemency were retired District Judge Tom Gillert, appointed by the Court of Criminal Appeals, and retired Tulsa police officer William Latimer, an appointee of the Oklahoma Supreme Court.


Follow Sean Murphy at www.twitter.com/apseanmurphy

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