- Associated Press - Thursday, September 24, 2015

OKLAHOMA CITY (AP) - Oklahoma Attorney General Scott Pruitt is urging a state appeals court to reject a death row inmate’s request to halt his execution, arguing that defense attorneys have failed to show the inmate is insane and ineligible for the death penalty.

Legal papers filed by Pruitt’s office urge the Oklahoma Court of Criminal Appeals to deny a stay of execution for Benjamin Cole, 50, of Claremore.

Cole was convicted of first-degree murder in Rogers County and is scheduled to be executed by lethal injection on Oct. 7 for the 2002 killing of his 9-month-old daughter, Brianna Cole, whose spine was broken and her aorta torn after she was forcefully bent backward.

Pruitt filed the legal papers on Wednesday, and the appeals court did not immediately hand down a ruling.

Defense attorneys are appealing a ruling by Pittsburg County District Judge James Bland last month that rejected claims Cole is insane and that executing him is unconstitutional.

Attorneys for Cole asked the appeals court last week to halt his execution, claiming he is mentally ill, suffers from schizophrenia and brain damage and is incompetent to be executed under the U.S. Constitution. Cole is also challenging plans to use the sedative midazolam as the first in Oklahoma’s three-drug lethal injection protocol instead of an ultrashort-acting barbiturate defense attorneys claim is called for in state law.

Cole’s attorneys claim Anita Trammell, warden at the Oklahoma State Penitentiary in McAlester where Cole is scheduled to be executed, has been on notice since January “that there is good reason to believe Mr. Cole is insane for purposes of execution.”

“Substantial evidence has been presented to the warden documenting an abnormality in Mr. Cole’s brain in a specific region associated with schizophrenia,” the defense motion states. “This evidence presents ‘good reason’ to believe Mr. Cole is insane.”

Defense attorneys allege that the warden is violating a state law that requires her to notify the local district attorney when an inmate has become insane.

In his response, the attorney general maintains Cole’s claims of insanity were rejected when Bland denied his request for a stay of execution following a hearing on Aug. 28. During the hearing, Trammell testified she has been able to converse with Cole on numerous occasions and that he understands why he’s being executed.

“Petitioner has made it clear that he understands he is being executed because he murdered his daughter,” Pruitt’s office states in its legal response. Trammell is under no legal duty to refer the case to local prosecutors, it says.

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