MCALESTER — A county judge said he will decide next week if a trial should be hosted to determine if an Oklahoma death row inmate is competent to be executed.

Benjamin Cole was convicted and sentenced to death in the 2002 killing of his 9-month-old daughter Brianna in Rogers County. Cole is scheduled to be executed Oct. 20 and Oklahoma’s parole board denied Cole clemency with a 4-1 vote earlier this week.

A hearing in a writ mandamus petition on Friday ended with Pittsburg County District Judge Mike Hogan saying he will review additional evidence and decide early next week if a jury is needed to determine if Cole is competent to be executed.

“I will start on an opinion, probably today, depending on how long it takes me to do that,” Hogan said. “It won’t be ready today...but hopefully by Monday or Tuesday of this next week.”

Cole’s defense attorneys filed a petition for writ of mandamus alleging Oklahoma State Penitentiary Warden Jim Farris abused his discretion.

Bonnie Blumert, representing Cole, said the warden abuse his discretion and did not properly consider the law when he declined to refer the case to the Pittsburg County District Attorney’s office for competency concerns.

“I’m not saying that he did that maliciously or deliberately — I think he has the question wrong,” Blumert said in closing. “He misunderstands his task.”

Cole was playing a video game in December 2002 when his infant daughter started crying, according to court records. He paused the game, pulled her feet backward to the point of breaking her spine that also tore her aorta, then started his game.

Records state Cole denied any issue when the child’s mom found her and asked him why she turned blue and foamed at the mouth. The child later died at the hospital.

State and federal courts have since rejected Cole’s claims of adjudicative incompetence and incompetence to be executed.

Cole remained silent and slumped over in a wheelchair with handcuffs around bruised marks on his wrists during Friday’s hearing.

He momentarily lifted himself upright with little to no reaction when defense attorneys checked on him.

Public defenders reiterated concerns Friday about Cole’s mental state that has been challenged since the case was first filed.

They wrote in court filings that Cole exhibited detached and incongruent behavior, an MRI showed a lesion on his brain, doctors diagnosed him with schizophrenia, and more.

Farris testified Friday he reviewed multiple clinical reports on Cole before declining to refer the case to the Pittsburg County DA.

The warden said he declined referral because he believes Cole is competent for execution based on prison staff accounts, personal interactions with the death row inmate, conversations with doctors, and review of various documents concerning Cole’s state.

Cole was transferred to an H-unit cell Sept. 15 as per the Department of Corrections’ 35-day execution protocol — after which Farris said Cole told him about concerns, like expressing he was cold, wanting his canteen, and more.

Farris said the conversation led him to believe Cole “understood completely” he was scheduled for execution and why.

He testified to reviewing a report from state forensic psychologist Scott Orth, who wrote Cole didn’t show significant signs or impairment during their session in July at the Oklahoma Forensic Center in Vinita.

Defense attorneys maintain Cole suffers brain damage from multiple childhood and early adulthood head traumas and a family history of mental illness.

An MRI of Cole’s brain shows a lesion in an area associated with paranoid schizophrenia, and also exhibits symptoms of Parkinson’s Disease.

Psychologist Dr. David George Hough examined Cole in 2016 and reported the man “presents as a classic example of a severely regressed chronic schizophrenic patient.”

Hough found Cole did not understand that he would be executed or the reasons why and that he was not competent to be executed.

Farris said he considered many reports, including those from Drs. Orth and Hough, before deciding to decline referral.

“His job is to function as a gatekeeper to prevent fraudulent claims of insanity from filling the courts — not to make his own decision determining competency,” Blumert said in closing.

Cole’s execution would be the sixth since Oklahoma ended a nearly seven-year moratorium in October 2021.

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