- Associated Press - Friday, August 28, 2015

McALESTER, Okla. (AP) - A judge ruled against an Oklahoma death row inmate on Friday after his attorneys argued he is insane and sought to halt his upcoming execution for the 2002 killing of his 9-month-old daughter.

District Judge James Bland denied the request from Benjamin Cole’s attorneys following a hearing in which Cole testified from a wheelchair. His lawyers wanted Bland to order the prison warden to find that Cole is insane.

They say the warden is violating a state law that requires her to notify the local district attorney when an inmate has become insane. They are expected to appeal the judge’s ruling to the Oklahoma Court of Criminal Appeals.

Cole sat motionless throughout the hearing that lasted more than five hours. When testifying, he sat slumped over and appeared to have his eyes closed.

The 50-year-old with long hair and a graying beard mumbled about religion and didn’t respond to most of the questions he was asked inside the Pittsburg County courtroom.

When the judge asked Cole why he was being executed, the inmate answered: “Go home. Go home to be with Jesus.”

Cole, who is being housed at the Oklahoma State Penitentiary in McAlester, is set to be executed by lethal injection on Oct. 7. The Claremore man was convicted of first-degree murder in Rogers County for killing his daughter, Brianna Cole.

He has not denied killing the child, whose spine was broken and aorta torn after she was forcefully bent backward.

Julie Gardner, an investigator for the public defender’s office who interviewed Cole several times, said he mostly talks about Scriptures and his “ministry,” which she said she doesn’t understand.

“He always talks about the end times and various messages the Lord has given him,” Gardner testified.

But Warden Anita Trammell said she’s been able to converse with Cole on numerous occasions and that he understands why he’s being executed.

“When I’ve pulled him out to talk to him, he’s engaged in conversation,” Trammell said in court.

Federal Public Defender Susan Otto wrote in a court filing that Cole’s “condition has deteriorated steadily since his conviction.” The U.S. Supreme Court has held that executing an insane person is unconstitutional.

Otto says Cole’s ability to participate in his defense has been in question since the inception of the case, and she told the state’s Pardon and Parole Board during a clemency hearing last week that Cole once went two years without showering or leaving his cell.

Forensic psychiatrist Raphael Morris, who was hired by Cole’s attorneys and also testified at the clemency hearing, said Friday that Cole sat before him in a catatonic state during an hour-long visit at the penitentiary.

Morris said Cole didn’t make eye contact or utter a single word. He said Cole has a lesion on his brain and that his condition has worsened since he first visited him in 2008.

“Six years ago he was talking and talking, and now he’s just giving one-word answers,” Morris testified.

The Pardon and Parole Board voted 3-2 last week against recommending clemency to the governor, who could only have granted clemency with a recommendation from the board.

But even a clemency recommendation would have been no guarantee that Gov. Mary Fallin would have spared his life.

The board voted 4-1 to recommend clemency for death row inmate Garry Allen, but Fallin still rejected the recommendation and said his execution should proceed. Allen, who suffered a brain injury after being shot in the head during his arrest, appeared confused during his 2012 execution and seemed startled when a prison official announced the start of the lethal injection.


Follow Sean Murphy at www.twitter.com/apseanmurphy .

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