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McALESTER, Okla. (AP) — A 57-year-old Oklahoma man is scheduled to receive a lethal injection on Thursday for killing his 9-month-old daughter in 2002, despite claims by his attorneys that he is mentally ill and not competent to be executed.
Attorneys for Benjamin Cole do not dispute that he killed Brianna Cole by forcibly bending the infant backward, breaking her spine and tearing her aorta, but argue that he is both severely mentally ill and that he has a growing lesion on his brain that has continued to worsen while he has been in prison.
Cole has refused medical attention and ignored his personal hygiene, hoarding food and living in a darkened cell with little to no communication with staff or fellow prisoners, his attorneys told the state’s Pardon and Parole Board last month during a clemency hearing.
“His condition has continued to decline over the course of this year,” Cole’s attorney Katrina Conrad-Legler said.
The panel voted 4-1 to deny clemency, and a district judge earlier this month determined Cole was competent to be executed. A last-minute appeal filed with the U.S. Supreme Court seeking to halt his execution was denied on Wednesday.
Cole has a lesion on his brain, which is separate from his diagnosis of paranoid schizophrenia, that has grown in size in recent years and affects the part of his brain that deals with problem solving, movement and social interaction, Conrad-Legler has said.
Attorneys for the state and members of the victim’s family told the board that Cole’s symptoms of mental illness are exaggerated and that the brutal nature of his daughter’s killing merit his execution.
Assistant Attorney General Tessa Henry said Cole killed his daughter because he was infuriated that her crying from her crib interrupted his playing of a video game.
“He is not severely mentally ill,” said another prosecutor, Assistant Attorney General Ashley Willis. “There is nothing in the constitution or jurisprudence 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 prison in California for abusing another child.
Board members also heard emotional testimony from family members of the slain child’s mother, who urged the board to reject clemency.
“The first time I got to see Brianna in person 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 casket?
“This baby deserves justice. Our family deserves justice.”
Oklahoma Attorney General John O’Connor said in a statement that he is confident Cole is sufficiently competent to be executed.
“Although his attorneys claim 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. “The evaluator, who was not hired by Cole or the State, found Cole to be competent to be executed and that ‘Mr. Cole does not currently evidence any substantial, overt signs of mental illness, intellectual impairment, and/or neurocognitive impairment.’”
Cole’s execution would be the sixth since Oklahoma resumed carrying out the death penalty in October 2021.