Benjamin Cole, who was sentenced to death in 2004 for killing his 9-month-old daughter Brianna, is set to be put to death on Thursday by lethal injection at 10 a.m. On Monday, his attorneys had asked the high court to block the execution, saying it would be unconstitutional under the court's precedent.
The Supreme Court provided no reasoning for declining to hear the case.
On Tuesday evening, attorneys for Cole, who say he is "schizophrenic and delusional," asked the U.S. District Court for the Northern District of Oklahoma to stay the execution and filed a habeas corpus petition to compel a competency hearing to prove he is not fit for the death penalty, one of the lawyers told Law360.
"We still have active litigation ongoing," said Emma Rolls, head of the Capital Habeas Unit at the Office of the Federal Public Defender for the Western District of Oklahoma.
In the habeas petition, Cole's attorneys argued state courts, including the Oklahoma Court of Criminal Appeals and the Pittsburg County Court, were unreasonable in finding that Cole did not meet the threshold to get a competency trial. The Eighth Amendment prohibits the execution of a prisoner who lacks a rational understanding of his punishment or the reason for it.
At least four doctors have determined that Cole is incompetent for execution. A lesion on an area of the brain associated with schizophrenia has been detected through MRI. He is physically frail, wheelchair-bound and "catatonic" much of the time, his attorney said in their filings.
"It's a fairly objective piece of evidence showing that he's laboring under serious mental illness," Rolls said. "Based on expert opinion, he does not have a rational understanding of why he's being executed. So it's really an unconstitutional execution that Oklahoma is heading towards on Thursday."
In Ford v. Wainwright
in 1986, the Supreme Court upheld the common law rule that executing a mentally ill person violates the Eighth Amendment. The decision established that a prisoner has a right to a competency evaluation and an evidentiary hearing to determine fitness for execution.The high court then clarified in Panetti v. Quarterman
in 2007 that the standard for competency requires a death row inmate to have a rational understanding of the connection between their crime and their execution.That case involved Scott Panetti, a Texas death row inmate whose lawyers are still fighting to prove his incompetency for the death penalty. On Monday, a federal court in Austin, Texas, will hold a competency hearing to determine whether he can be put to death, one of his attorneys told Law360 on Wednesday.
But for Cole, time is running out — Rolls said the district could fail to intervene before his scheduled lethal injection.
In the application for a stay, Cole's attorneys asked the federal district court to put Cole's execution on hold and grant an opportunity to litigate the incompetency claims. The request for a stay and the habeas petition could both find their way up the U.S. Supreme Court, "if time permitted," Rolls said.
If the district court denies relief, the attorneys will seek an emergency stay in the U.S. Court of Appeals for the Tenth Circuit. If Cole loses there, they could petition the high court again — but given Wednesday's denial, the odds would be longer.
Rachel Roberts, a spokeswoman for the Office of the Oklahoma Attorney General, declined to comment on Cole's case and pointed to the opposition brief the office filed Wednesday.
In the brief, Tessa L. Henry of the state attorney general's office argued Cole did not meet the legal requirements for granting a stay. Henry said in the brief that the Oklahoma Court of Criminal Appeals, the state's court of last resort on criminal matters, was reasonable in determining that Cole is fit to be executed.
In its decision on Monday, the court pointed to an evaluation Scott Orth, a psychologist at the Oklahoma Forensic Center, did on Cole on July 5, finding him competent. In his report, Orth said he spent two and a half hours with Cole, found him alert and said the prisoner spoke lucidly about why he was being sentenced to death.
Cole confessed to police that on Dec. 20, 2002, he murdered his daughter by snapping her spine in half, severing her aorta. He told detectives he was trying to get her child to stop crying. He later played video games and denied anything was wrong with the girl when confronted by her mother, according to court documents.
The atrocity of the crime and Cole's previous felony conviction for child abuse were aggravating factors the jury found in sentencing him to death, court records show.
Rolls said Cole is an "extraordinarily mentally ill man" whose conditions, both mental and physical, have deteriorated. For years, his attorneys have struggled to communicate with him and often found him delusional, she said.
"When you have a client who cannot communicate with you and rationally assist you in their defense, you're automatically behind," she said.
In 2008, Cole was diagnosed with schizophrenia. But even before he stood trial for Brianna's murder, signs of mental illness were already there, she said, adding that he lived an itinerant, nearly homeless life and struggled with substance abuse.
Throughout the nearly 15 years the federal defenders have been representing him, Cole has become less and less able to move and communicate with his attorneys and appeared increasingly neglected.
"We've had an attorney be able to kind of peek through the door of his cell and put eyes on him and was shocked by what he saw," she said.
The attorney saw Cole lying on the floor with his head wrapped in a sort of makeshift scarf covering his eyes. He had a knotted, dirty beard and his hair looked matted.
"We're not aware of his understanding of what's happening at this moment," Rolls said.
The State of Oklahoma has not permitted Cole's attorneys to witness his execution. According to state rules, death row inmates can name people they wish to attend. Cole has not named anyone so far.
--Editing by Vaqas Asghar.