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Mentally ill man will be executed after high court denies stay

Benjamin Cole has been on death row in Oklahoma for nearly two decades for the murder of his infant daughter.  

WASHINGTON (CN) — Despite warnings from attorneys that their client is not competent, the Supreme Court refused Wednesday to block the execution of a man who snapped the spine of his 9-month-old child after she interrupted him playing video games.

No justice offered any dissent or opinion this morning in denying the emergency application and certiorari petition from Benjamin Cole. Now 57, Cole was sentenced him to death in 2004 for the first-degree murder of of his daughter shortly before Christmas in 2002. According to court documents, Cole snapped the child’s spine, severing her aorta, after she disrupted him while playing video games.

Though he was later diagnosed with schizophrenia, defense attorneys say the man's mental health and competency have always been in question. In 2015, the prison warden refused Cole's request for a jury trial on his competency to be executed. Neither the trial court nor the Oklahoma Court of Criminal Appeals intervened, but Cole's execution nevertheless faced an indefinite delay when the state's lethal injection protocol came under scrutiny. 

Because challenges to the state’s lethal injection procedures ended this year, however, Cole’s execution has been put back on. Cole provided the new warden with multiple reports from a psychologist detailing his severe mental illness, decompensated mental condition and incompetency for execution. The reports also included information from a neuroradiologist on an abnormal MRI and brain lesion. 

Despite the reports submitted by Cole, a psychologist at the Oklahoma Forensic Center deemed Cole fit for execution in July. Cole’s attorneys tried to convince the warden to reconsider the July evaluation and provided a doctor’s declaration that the July report was inaccurate, however, Warden Jim Farris declined to initiate court competency proceedings. 

Cole filed a petition in federal court this past August, claiming the warden abused his discretion. An evidentiary hearing was held but the court denied relief. This week the Oklahoma Court of Criminal Appeals denied Cole’s pending petition, leaving the high court as his last option. 

After nearly two decades, Cole is scheduled for execution on Thursday morning. 

In a Hail Mary, Cole’s attorney’s submitted an emergency application on Friday night, hoping to prevent the execution from moving forward. Cole claims the state court violated precedent by bypassing procedural safeguard. He also questioned the warden’s conflict of interest in competency proceedings. Cole additionally submitted a petition before the full court, asking the justices to add his case to their docket. 

“Absent a stay of execution, Mr. Cole’s attempts to vindicate his right to due process on his Eighth Amendment claim of execution incompetency will not be resolved before his execution, causing irreparable injury for which Mr. Cole cannot seek any redress,” Thomas Hird, a public defender representing Cole, wrote in the application. 

Cole argues that his case is owed review by the high court because, starting in November — just 11 days after his scheduled execution — the prison warden will no longer be able to have authority over competency proceedings. 

“Mr. Cole’s case presents the question of whether a pre-Ford state statute imbuing the death row warden — the same official charged with carrying out executions — with the duty of gate-keeper to execution competency proceedings can pass constitutional muster,” Hird wrote in Cole’s cert petition. “A new state statute that removes and remedies this particular constitutional defect will go into effect eleven days after Mr. Cole’s execution. Beginning November 1, 2022, the warden will no longer have decision-making power over the initiation of competency proceedings.” 

Oklahoma meanwhile called Cole’s incompetence claims “patently without merit.” 

“His focus on procedure is unsurprising given that his substantive claim of incompetence is patently without merit — a neutral, court-appointed psychologist recently interviewed Cole, reviewed more than 1,000 pages of records, and concluded unequivocally that Cole is competent to be executed,” Oklahoma Assistant Attorney General Tessa Henry wrote in the state’s opposition brief. “Without making a substantial showing of incompetence, Cole is not entitled to further due process on his incompetence claim; thus, his case is an inappropriate vehicle for the examination of Oklahoma’s competency procedures.” 

Justice Neil Gorsuch, a former 10th Circuit judge who would have handled federal appeals out of Oklahoma during that 11-year tenure, did not participate in the ruling. 

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