Application — Benjamin Robert Cole, Petitioner v. Jim Farris, Warden
Supreme Court briefOct 14, 2022
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No.
IN THE
Supreme Court of the United States
Benjamin Cole,
Applicant,
v.
Jim Farris, Warden,
Oklahoma State Penitentiary,
Respondent
On Petition for Writ of Certiorari
to the Oklahoma Court of Criminal Appeals
EMERGENCY APPLICATION FOR STAY OF EXECUTION PENDING FILING
AND DISPOSITION OF PETITION FOR WRIT OF CERTIORARI
THIS IS A CAPITAL CASE WITH IMMINENT EXECUTION SCHEDULED FOR
OCTOBER 20, 2022 AT 10:00 A.M.
October 14, 2022
Thomas D. Hird*
Katrina Conrad-Legler
Assistant Federal Public Defenders
Western District of Oklahoma
215 Dean A. McGee, Suite 707
Oklahoma City, OK 73112
Phone: (405) 609-5975
Tom_Hird@fd.org
Katrina_Legler@fd.org
*Counsel of Record
APPENDIX
TABLE OF APPENDICES
Page(s)
APPENDIX A
Appendix of Exhibits
filed in Pittsburg County District Court August 15, 2022 ......................................... 1a
APPENDIX B
Transcript of Petition for Writ of Mandamus Hearing Had on
September 30, 2022, McAlester, Oklahoma, Before the Hon. Michael Hogan ..... 160a
APPENDIX C
October 4, 2022 Order
Addressing Benjamin R. Cole’s Request for a Writ of Mandamus ........................ 320a
APPENDIX D
Version of Okla. Stat. tit. 22, § 1005 going into effect November 1, 2022 ............. 324a
APPENDIX E
Petitioner Benjamin Cole’s Combined Petition for Writ of Mandamus and
Brief in Support filed October 10, 2022 in the Oklahoma Court of Criminal
Appeals..................................................................................................................... 327a
i
IN THE DISTRICT COURT OF PITTSBURG COUNTY
STATE OF OKLAHOMA
IN RE: BENJAMIN R. COLE
)
1
Case No. r't~~'Z~ ~ ~~~
Inmate No.: 489814
Execution set for October 20,2022
PETITION FOR WRIT OF MANDAMUS,
BRIEF IN SUPPORT OF PETITION FOR WRIT OF MANDAMUS,
PETITIONER'S MOTION FOR EVIDENTIARY HEARING,
-andPETITIONER'S MOTION FOR ORDER FACILITATING PROPER
EVALUATION OF PETITIONER BY EXPERTS AND BRIEF IN SUPPORT
APPENDIX OF EXHIBITS
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THOMAS D. HIRD, OBA #13580
KATRINA CONRAD-LEGLER, OBA # 16953
Assistant Federal Public Defenders
Federal Public Defender Organization
Western District of Oklahoma
215 Dean A. McGee, Suite 707
Oklahoma City, Oklahoma 73102
(405)609-5975 (Telephone)
(405)609-5976 (Facsimile)
Tom_Hird@fd.org
Katrina Legler@fd.org
COUNSEL FOR BENJAMIN COLE
APPENDIX A
(1a)
IN THE DISTRICT COURT OF PITTSBURG COUNTY
STATE OF OKLAHOMA
IN RE:
BENJAMIN R. COLE
Inmate No.: 489814
)
)
)
)
Case No. __________________
Execution set for October 20, 2022
PETITION FOR WRIT OF MANDAMUS,
BRIEF IN SUPPORT OF PETITION FOR WRIT OF MANDAMUS,
PETITIONER'S MOTION FOR EVIDENTIARY HEARING,
-andPETITIONER'S MOTION FOR ORDER FACILITATING PROPER
EVALUATION OF PETITIONER BY EXPERTS AND BRIEF IN SUPPORT
APPENDIX OF EXHIBITS
INDEX
Exh. No.
Title of Exhibit
1
05/20/2022 Letter to Warden Farris
2
05/25/2022 Letter to Warden Farris
3
08/01/2022 Letter to Warden Farris
4
08/02/2022 Letter from Warden Farris
5
07/14/2022 Report of Scott Orth, Psy.D.
6
10/13/2016 Competency to Be Executed Evaluation by George Hough, Ph.D.
7
01/14/2018 Competency to Be Executed Evaluation Addendum
by George Hough, Ph.D.
8
05/04/2022 Affidavit of George Hough, Ph.D. regarding 04/25/2022
attempted visit and observations of Cole
9
05/04/2022 Affidavit of George Hough, Ph.D. regarding 04/25/2022
attempted visit and interactions with prison staff
10
07/29/2022 Declaration of David Hough, Ph.D. regarding Orth report with
sample of 2014 DOC records attached
Page 1 of 2
APPENDIX A
(2a)
11
01/16/2015 Affidavit of Anne Hayman, MD
12
05/11/2022 Declaration of Travis Snyder, DO
13
05/25/2022 2nd Declaration of Travis Snyder, DO
14
04/04/2009 Independent Psychiatric Consultation by Raphael Morris, MD
15
01/21/2015 Updated Independent Psychiatric Consultation
by Raphael Morris, MD
16
Curriculum Vitae of David Hough, Ph.D.
Page 2 of 2
APPENDIX A
(3a)
FEDERAL PUBLIC DEFENDER
WESTERN DISTRICT OF OKLAHOMA
SUSAN M. OTTO
FEDERAL PUBLIC DEFENDER
DEATH PENALTY FEDERAL
HABEAS CORPUS DIVISION:
REPLY To:
215 DEAN A MCGEE
SUITE 707 OLD POST OFFICE BUILDING
OKLAHOMA CITY, OKLAHOMA 73102
(405) 609-5975
FAX: (405) 609-5976
�x�-
MAIN OFFICE:
REPLY TO:
215 DEAN A MCGEE
SUITE I 09 OLD POST OFFICE BUILDING
OKLAHOMA CITY, OKLAHOMA 73102
(405) 609-5930
FAX: (405) 609-5932
BRANCH OFFICE:
REPLY TO:
FEDERAL TRANSFER CENTER
P.O. Box 898802-8802
OKLAHOMA CITY, OKLAHOMA 73159-8802
(405) 680-4047
FAX: (405) 680-4082
May 20, 2022
VIA EMAIL AND REGULAR U.S. MAIL
Mr. Jim Farris, Warden
Oklahoma State Penitentiary
P.O. Box 97
McAlester, Oklahoma 74502-0097
Re:
Benjamin Cole, DOC #489814
Dear Warden Farris:
We believe our client, Benjamin Cole, DOC #489814, is incompetent to be executed. See Order,
Benjamin Cole v. Jim Farris, 15-CV-0049-GKF-CDL (N.D. Okla. Feb. 17, 2022) (finding Mr.
Cole's execution date no longer indefinite and reopening action asserting Cole is incompetent to be
executed pursuanttoFordv. Wainwright, 477 U.S. 399 (1986)). In addition to what's been presented
previously in litigation, we provide the following support for our position:
1.
2.
3.
4.
5.
6.
Declaration and attached CV ofneuroradiologist Travis Snyder, D.0., dated May 11,
2022;
Affidavit of David George Hough, Ph.D., ABPP, dated May 4, 2022;
Second affidavit of David George Hough, Ph.D., ABPP, dated May 4, 2022;
Competency to Be Executed Evaluation: Addendum of David George Hough, dated
January 16, 2018;
Competency to Be Executed Evaluation of David George Hough, dated October
13, 2016;and
CV of David George Hough, PhD., ABPP.
Oklahoma Statutes, Title 22 O.S. § 1005 states:
If, after his delivery to the warden for execution, there is good reason to believe that
a defendant under judgment of death has become insane, the warden must call such
fact to the attention of the district attorney of the county in which the prison is
situated, whose duty is to immediately file in the district or superior court of such
county a petition stating the conviction and judgment and the fact that the defendant
APPENDIX A
Exhibit 1
(4a)
is believed to be insane and asking that the question of his sanity be inquired into.
Thereupon, the court must at once cause to be summoned and impaneled from the
regular jury list a jury oftwelve persons to hear such inquiry.
Oklahoma law also provides a definition of"insane"for these purposes which,as you will see,might
be more precisely termed"incompetentto be executed."' The definition asks whether the inmate has:
...sufficient intelligence to understand the nature of the proceedings against him,
what he was tried for, the purpose of his punishment, the impending fate which
awaits him,and a sufficient understanding to know any fact which might exist which
would make his punishment unjust or unlawful, and the intelligence requisite to
convey such information to his attorneys or the court. If he has, then he is sane;
otherwise he is insane, and should not be executed.
Bingham v. State, 169 P.2d 311,312(Okla. Crim. App. 1946). We submit Mr. Cole is incompetent
to be executed in all respects under this definition. It is perhaps worth making a special note that the
attached materials, particularly Dr. Hough's affidavits and reports, make clear Mr. Cole does not
have "sufficient understanding" and "intelligence"to convey any information to his attorneys or the
court.
Ofspecial import,Panetti v. Quarterman,551 U.S. 930,956-59(2007)provides that the individual
must have a rational understanding of his impending fate. Moreover,"[a] prisoner's awareness of
the State's rationale for an execution is not the same as a rational understanding ofit."Id. at 959.In
amore recent case,the Supreme Court broadened the concept ofinsanity and held that dementia,too,
"can cause such disorientation and cognitive decline as to prevent a person from sustaining a rational
understanding of why the state wants to execute him" Madison v. Alabama, 139 S. Ct. 718, 729
(2019). Copies ofthe cases cited in this letter(Ford, Panetti, Bingham, and Madison)are attached
for your convenience.
As detailed in Dr. Hough's and Dr. Snyder's materials, Mr. Cole does not have a rational
understanding ofhis impending fate due to his significant mental illness and brain lesion. Mr.Cole's
mental illness is a longstanding one, with severe symptoms that have been documented by multiple
sources, including the prison's own medical providers over the years. Should you desire copies of
previous reports documenting Mr. Cole's mental illness and corresponding incompetence, we will
gladly provide the same.
We respectfully submit Dr. Hough's and Dr. Snyder's opinions standing alone provide "good
reason" under 22 O.S. § 1005 to refer this matter for competency proceedings in the district court
and ask that you notify the District Attorney of Pittsburg county ofthe same.
We respectfully request that you respond as soon as practicable to this letter outlining your plans
going forward. Thank you for your attention to this matter.
2
APPENDIX A
Exhibit 1
(5a)
Sincerely,
~.
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Thomas D. Hird
APPENDIX A
Exhibit 1
(6a)
FEDERAI.PUBLIC DEFENDER
WESTERN DISTRICT OF OKLAHOMA
SUSAN M OTTO
FEDERAL PUBLIC DEFENDER
DEATH PENALTY FEDERAL
HABEAS CORPUS DIVISION:
X
REPLY TO:
215 DEnN A. MCGEE
SUITE 707 OLD POST OFFICE BUILDING
OKLAHOMA CITY, OKLAHOMA 73102
(405)609-5975
Ftvc:(405)609-5976
21 S DEAN A. MCGEE
BRANCH OFFICE:
REPLY TO:
FEDERAL TRANSFER CENTER
SUITE I09 OLD POST OFFICE BUILDING
OKLAHOMA CITY,OKLAHOMA 73102
OKLAHOMA CITY,OKLAHOMA 73159-8802
(405)609-5930
Fnx:(405)609-5932
(405)680-4047
Fpx:(405)680-4082
MAIN OFFICE:
REPLY TO:
P.O. BOx 898802-8802
May 25, 2022
VIA EMAIL AND FEDEX
Mr. Jim Farris, Warden
Oklahoma State Penitentiary
P.O. Box 97
McAlester, Oklahoma 74502-0097
Re:
Benjamin Cole, DOC #489814
Dear Warden Farris:
On Friday, I wrote to ask you to initiate competency proceedings on behalf of Benjamin Cole
because he is incompetent to be executed. Among the attachments was a recent declaration/report
from Dr. Travis Snyder, wherein he found Mr. Cole's recent brain MRI "markedly abnormal" and
demonstrative ofmultiple pathologies. He further noted that more sensitive volumetric analysis and
diffusion tensor imaging had not yet been capable of analysis, and reserved the right to supplement
his report when they became available.
Yesterday he informed us he was able to get the volumetric analysis and diffusion tensor imaging
uploaded. Attached is a second declaration/report by Dr. Snyder detailing new findings from the
volumetric analysis and diffusion tensor imaging. The markedly abnormal results "are concordant
with other MRIsequences and upgrade the damage identified."See attached declaration/report at ¶6.
I believe this declaration/report,along with the other information you have been made awaxe of, may
assist you in your decision to initiate competency proceedings for Mr. Cole.
Thank you for your attention in this matter.
Sincerel ,
l
Thomas D. Hird
APPENDIX A
Exhibit 2
(7a)
APPENDIX A
Exhibit 3
(8a)
APPENDIX A
Exhibit 4
(9a)
APPENDIX A
Exhibit 4
(10a)
APPENDIX A
Exhibit 5
(11a)
APPENDIX A
Exhibit 5
(12a)
APPENDIX A
Exhibit 5
(13a)
APPENDIX A
Exhibit 5
(14a)
APPENDIX A
Exhibit 5
(15a)
APPENDIX A
Exhibit 5
(16a)
APPENDIX A
Exhibit 5
(17a)
APPENDIX A
Exhibit 5
(18a)
APPENDIX A
Exhibit 5
(19a)
APPENDIX A
Exhibit 5
(20a)
APPENDIX A
Exhibit 5
(21a)
APPENDIX A
Exhibit 5
(22a)
George Hough,Ph.D., ABPP
50 Eden Street
CB 1 1EL
Cambridge, United Kingdom
+44 7751 548087
E-mail: georgehough4@gmail.com
Michael W. Lieberman, JD
Assistant Federal Public Defender
Thomas D. Hird, JD
Assistant Federal Public Defender
Susan M. Otto, JD
Federal Public Defender
Office of the Federal Public Defender,
Western District of Oklahoma
Capital Habeas Unit
215 Dean A. McGee, Suite 707
Oklahoma City, OK 73102
Competency to Be Executed Evaluation
Client:
Dates of Evaluation:
Location of Evaluations
Referral Source:
Date of Report:
Benjamin Cole
February 16-17, 2016; May 10, 2016
Oklahoma State Penitentiary, McAlester, Oklahoma
Michael Lieberman, JD. Oklahoma City, OK.
October 13, 2016
REASON FOR REFERRAL:
Mr. Cole was referred for a psychological evaluation to document his current emotional and cognitive
status, and to render a professional opinion as to whether he is currently competent to be executed by the
State of Oklahoma.
PROCEDURES ADMINISTERED:
Mental Status Interviews and Clinical Observations; Review of Mr. Cole's collection of personal
documents(16 standard boxes); Review of Accompanying Background Clinical Records &Evidence(see
Appendix A)
I:Summary of Background Records:
BackgNound
In brief, Mr. Cole was born into a family system where both parents were heavy users of drugs and
alcohol before he was born, and his mother continued to drink heavily while pregnant with him. In this
family Mr. Cole began using substances early, and was drinking alcohol by age 6. From there he went on
to become a polysubstance user, which included huffing gasoline fumes and other toxic chemical
APPENDIX A
Exhibit 6
(23a)
products. Mr. Cole's step-brother, Leonard O'Neil, reported that as a child Mr. Cole huffed gasoline for
1-2 years at a frequency of daily or sometimes once a week(Vol. I, #3, p. 314, Transcribed
Interview).Throughout Mr. Cole's childhood he was severely abused physically and emotionally. Incest
ran rampant in the family, as elaborated upon by Mr. Cole's step-sister Cherry Peirce (Vol. I, Affidavit, p.
374). Academically Mr. Cole was required to repeat kindergarten and he was placed in a Special
Education curriculum for problems with his low reading and auditory comprehension skills. He was held
back once again in St'' grade. In 6`'' grade his intelligence level was measured as showing a wide split
between his verbal and nonverbal intelligence(Verbal IQ= 86; Performance IQ=113; Mean = 100 and
Standard Deviation = 15). Discrepancies in measured IQ scores this large are not uncommon among
individuals with organic brain problems. Such discrepancies indicate, as well, lateralization of brain
functioning such that in Mr. Cole's case his language skills(predominantly left hemisphere)are far
weaker than his rather high levels of skills related to visual-spatial-motor skills (predominantly right
hemisphere). By the 8`'' grade he was also assessed as registering below average compared to his sameaged peers on standardized achievement measures.
By age 18 Mr. Cole drank heavily and was becoming increasingly isolated and withdrawn. After high
school he experienced long periods of unemployment and worked menial jobs. At age 20 he sustained a
serious closed head injury (hit in head with hammer while drinking with friends). He joined the U.S. Air
Force but continued to demonstrate alcohol and impulse control problems, and he was afraid of being
promoted from the rank of Airman E-2 to Airman E-3 (despite the fact that military promotion would
provide extra pay and privileges, more opportunity for advancement and a greater degree of respect). His
biological mother, as well as his brother, Robert, both described that Ben "snapped" while in the Air
Force(Vol. I., #8, p. 11). During phone calls with him in 1993/94, for example, his communications were
sounding increasingly bizarre as he told them the rock band "Slayer" was sending him subliminal
messages to do things he did not want to do. He was ultimately discharged from the military after he
received atwo-year prison sentence in California for abusing his first son, Ben Cole, Jr.
After release from prison, Mr. Cole continued to show evidence of continued and progressive mental
decline. By age 33 he was essentially homeless and adrift, and was living under bridges or in a tent by a
river. He then lived in a common-law relationship with Ms. Susan Young. During that relationship they
lost custody of her young son from a previous relationship, and they were both cited by child protection
services for neglect. Mr. Cole's condition continued to deteriorate to the point he could not hold steady
employment and he still drank heavily. In the brief union with Ms. Young the couple had a child, Brianna
Victoria Gole(DOB: 3/27/2002). As reflected in the case files, Mr. Cole was subsequently convicted for
first degree murder of Brianna Cole as an infant in the District Court of Rogers County, Oklahoma.
Though originally offered a sentence of life without parole to avoid the death penalty, Mr. Cole rejected
this plea offer and went to jury trial. Mr. Cole was found guilty at trial and was sentenced to death. He is
currently on the H Unit at Oklahoma State Penitentiary("OSP")in McAlester, Oklahoma. At the time of
this evaluation, Mr. Cole is currently under a Stay of Execution in the State of Oklahoma pending the
outcome of present investigations into the status of the death penalty in Oklahoma.
Prior Psychiatric Evaluations
There have been multiple psychiatric evaluations conducted of Mr. Cole over the past 13 years, beginning
with early evaluations to assess his competency for trial. In parallel to these competency evaluations there
have been several neuropsychological evaluations. These have provided the data required to request more
sophisticated neuroimaging studies that confirmed the presence of organic brain lesions ofthe left
hemisphere of Mr. Cole's brain.
Mr. Cole was initially evaluated at the Rogers County Jail by Dr. Kathy LaFortune, who worked for the
Oklahoma Indigent Defense System ("OIDS"), on 2/13/03, to determine whether his attorney should hire
APPENDIX A
Exhibit 6
(24a)
an expert witness to address his psychological disturbance at trial(Vol. I., #2, p. 198). At that time Mr.
Cole was considered by Dr. LaFortune to be competent to proceed to trial though his attorneys, Silas
Lyman and John Dalton (who also worked for OIDS)reported that he was unable to assist them in his
defense.
Dr. Bill Sharp conducted a psychological evaluation at the behest of Mr. Cole's attorneys on 10/25/03 at
the Rogers County Jail(Vol. I., #2, p. 208). During the evaluation Mr. Cole was reported to be paranoid
and neuropsychological testing was recommended based upon the results obtained from
neuropsychological screening measures.
Dr. Jeanne Russell was asked by Mr. Cole's attorneys to provide an in-depth assessment of Mr. Cole's
social history and risk assessment(Vol. I., #2, p. 217). In her report of 5/27/04, she noted that 80% of the
time he focused on religious topics and that he gets depressed on certain days of the month that remind
him of his daughter's death and burial. At that point his religious discourse, though pervasive, was not yet
considered of delusional proportions; rather, it was considered consistent with the fundamentalist church
he had previously attended.
Based upon Dr. Sharp's recommendations, acomprehensive neuropsychological evaluation was
conducted by Dr. Michael Basso on 6/15/04(Vol. I., #9 p. 125). Dr. Basso further noted in his report Mr.
Cole's prior history of head injury on the right forehead with a hammer. Dr. Basso concluded that he
found a pattern of mild to moderate abnormalities in Mr. Cole's brain functioning, which included the
following areas of impairment: impaired abstract visual reasoning, impaired simultaneous conceptual
sequencing, impaired figural fluency, impaired verbal concept formation and impaired right tactile
sensation. Overall, Dr. Basso concluded the presence of impaired brain functioning, which was
maximally present in the left temporal-parietal region of the brain. He recommended further evaluation
with a neurologist, as well as a magnetic resonance imagining study(MRI)and an
electroencephalography(EEG).
Along with the above noted neuropsychological findings from both Dr. Sharp's screening assessment, and
further quantified by Dr. Basso's full neuropsychological assessment, Mr. Cole's attorneys continued to
struggle with whether he was competent to assist them in a meaningful and productive manner. They
sought yet another competency evaluation. In a letter written to Judge Dwayne Steidley 8/18/04(Vol. I.,
#2, p. 241), Dr. Samina Christopher reported upon her findings that Mr. Cole met the statutory
requirements to stand trial and to assist counsel if he chose to do so. As with other competency reports in
these earlier years, neuropsychological issues were not addressed.
The question of competency to assist counsel was again raised by Mr. Cole's attorneys, when Dr. Paula
Monroe evaluated Mr. Cole on 8/30/04.On referral from attorney James Bowen, Dr. Monroe was asked
to assess Mr. Cole's ability to understand the charges against him and to rationally assist counsel in his
defense(Vol. I., #2, p.236). Mr. Bowen had been concerned about Mr. Cole's religious preoccupations as
interfering with his ability to assist counsel. In this evaluation, Dr. Monroe found Mr. Cole competent to
proceed to court.
Approximately three years later, Dr. Randall Price conducted a Competency to Stand Trial evaluation on
1 1/19/07(Vol. I., p. 171,& p. 252), which included direct observations ofthe client —attorney
interactions. Throughout the evaluation Mr. Cole spoke of little else but scripture, and told Dr. Price that
he could not be interviewed about his past history since any discussion about it would be "like putting
Jesus on the cross again and again, which is like doubting my own forgiveness." Throughout the
evaluation he was likewise rambling in speech, grandiose and delusional. Noting the significant
impairments in reality testing, as well as with communication and delusional thinking, Dr. Price opined
APPENDIX A
Exhibit 6
(25a)
that while Mr. Cole did understand the factual basis of his case, he was unable to competently assist his
attorney due to his perseverative focus on religiously themed delusions.
Dr. Raphael Morris provided a comprehensive psychiatric evaluation (dated 4/4/09) and found Mr. Cole
to be incompetent to assist counsel. Mr. Cole was diagnosed as suffering from schizophrenia, paranoid
type, with grandiose delusions manifested as hyper-religiosity (Vol. I., #2, p. 261). In this report Dr.
Morris had to rely heavily upon collateral sources since Mr. Cole was too delusional to make rational
sense.
Six years later, on 1/21/15, Dr. Morris evaluated Mr. Cole again and updated his previous evaluation of
4/4/009. In the update he noted that he first met Mr. Cole in 2008, and that in 2009 he opined the
diagnosis of schizophrenia, paranoid type. He elaborated that Mr. Cole had demonstrated mental illness
even before 2003, which had persisted to the present. He opined that Mr. Cole lacked the capacity to
participate in habeas proceedings and recommended further mental health evaluations. In this affidavit
Dr. Morris further noted that because Mr. Cole had not received any treatment for the schizophrenia over
the six years since he had evaluated him,that he has deteriorated even further, as demonstrated by his
prolonged periods of refusing to come out of his cell, refusal to meet with evaluators or his legal team,
and that he has stopped bathing resulting in extremely poor hygiene. Dr. Morris also attempted to conduct
an evaluation to determine Mr. Cole's competence to be executed and noted that he was not allowed to
meet with the defendant in his cell to observe him there. Dr. Morris concluded that there was even more
objective evidence of paranoid schizophrenia than he had observed in the 2009 evaluation. Dr. Morris
also concluded, as well, that there was more evidence that Mr. Cole suffers from a neurochemical illness,
a conclusion that has been supported by prior neuro-imaging studies. Dr. Morris also recommended that
follow-up PET Scan and MRI studies be obtained. Finally, as Mr. Cole's execution date loomed near, Dr.
Morris indicated that given all ofthese clinical considerations, that Mr. Cole's competency to be executed
must be questioned.
Prior Neuroima~in~ Studies
Indicated below are the results from a series of neuroimaging studies that were conducted following on
prior recommendations for advanced neuroimaging studies to clarify the pathognomonic findings
obtained from the neuropsychological testing.
Dr. John Hastings, M.D. of Neurologic Medicine reviewed the results from Mr. Cole's MRI taken on
9/22/04. Dr. Hastings reported Ending an 11 mm lesion of the left hemisphere, located deep in the white
matter near the internal capsule(Vol. I., #2, p. 249). The lesion was non-specific but had a configuration
that might be seen in a multiple sclerosis tumor or small abscess. No atrophy or shrinkage was observed
as might be seen with chronic alcohol or a degenerative disease process. Further studies were
recommended to determine if the lesion is static or progressive (2/13/07).
This same MRI of 9/22/04 was reviewed by Dr. Matthew Powers, M.D, of Powers Radiology, P.C. on
2/3/07. Dr. Powers provided an essential recapitulation ofthe report provided by Dr. Hastings(Vol. I., #2,
p.251). Dr. Powers confirmed the radiological finding of an 11 mm lesion within the deep white matter of
the brain. This was considered a large lesion. Findings further noted that disruption of these white matter
fiber tracts in the brain tissue can result in significant behavioral dysfunction due to the interruption of
electrochemical signal transmission across brain regions, resulting in impairments in information
processing and a break down in the regulation ofcomplex behavioral functioning. The cause ofthese
defects in the frontal-temporal region were considered unknown. In this report follow up
recommendations were offered:(1)a second MRI was recommended because the 11 mm lesion could be
a tumor and a new MRI would help determine if the lesion is static or is continuing to grow;(2)An EEG
was also recommended since the obtained results were also considered consistent with a potential seizure
4
APPENDIX A
Exhibit 6
(26a)
disorder;(3)a PET (Positron Emission Tomography)Scan, which is the most accurate and useful form of
brain scanning;(4)and finally, a fludeoxyglucose study(FDG)of local glucose metabolism.
In her affidavit of 1/16/15, Dr. Anne Hayman,a Board Certified Radiology Specialist, observed of the
findings obtained with Mr. Cole's MRI images:"His brain renders him unable to respond in a normal
way to his environment. The lesion and symptoms are worsening." She elaborated that the lesion could
be "progressive structural and biochemical abnormalities that severely impair his ability to interact
appropriately with his surroundings"(Vol. I., #2, p.300). She also noted that the lesions was detected over
10 years ago and has progressed, and that Mr. Cole's symptoms have worsened. Dr. Hayman
recommended an MRI and PET scan.(1/16/15)
In the Declaration of Dr. Ruben Gur, Professor at the University of Pennsylvania School of Medicine and
Senior National Institute of Health Researcher(NIH), he reviewed the raw data from the
neuropsychological evaluation conducted by Dr. Basso. Dr. Gur applied these data to the Behavioral
Imaging Algorithm, a computer program which helps to localize brain damage based upon various
neuropsychological data(Vol. I., p. 292). Dr. Gur concluded that these findings indicated that Mr. Cole's
neuropsychological test performance was well below average, with pronounced deficits identified in the
frontal region ofthe brain, and with greater impairment in the left hemisphere. Significant damage to the
left frontal-parietal lobe was identified. This pattern of neuropsychological findings was also noted to be
consistent with findings of schizophrenia. Dr. Gur's final diagnosis: organic brain damage of moderate to
severe levels resulting in neuropsychiatric illness.(5/11/09) It is also noted, parenthetically, that Mr.
Cole's attorneys now inform that Mr. Cole is beginning to drop things frequently, a behavior often
indicative of possible deterioration in gross motor control.
At Clemency Hearing on May 14, 2015 testimony was provided by evaluating psychiatrist Dr. Morris and
neuroradiologist Dr. Anne Hayman. Dr. Morris noted progressive structural and biochemical
abnormalities with Mr. Cole's brain that impair his ability to interact appropriately with his environment.
There are structural lesions of the left globus pallidus, along with his chronic paranoid schizophrenia and
left basal ganglia, and a prominence of"negative symptoms" of schizophrenia- are all related to
abnormalities in the left global pallidus. Dr. Morris further opined at the Clemency Hearing that Mr. Cole
would have been incompetent at his trial and that at that time he was suffering from schizophrenia,
paranoid type, and that his delusions and paranoia would have prevented him from having coherent and
rational discussions with his defense attorneys.
Previous Attorneys &Legal Sta
Mr. Cole's past and current attorneys have repeatedly noted that before, and especially after his capital
sentence, that Mr. Cole has not been able to confer with them in a rational and coherent manner that has
been of assistance with the case. Essentially, legal defense teams have had to work on his defense without
his input. Each defense team after the death sentence have encountered the same set of issues: namely,
his persistent religious delusions and preoccupation with the end ofthe world, all of which has made it
impossible to hold rational conversations with him about his case. His litany of irrational decisions and
months of non-communication with his attorneys, as well as his complete detachment from the legal
process about his case, have been noted repeatedly across the years by his various legal teams as well as
their investigators. Marked deterioration in Mr. Cole's functioning is observed particularly after
2008/2009.
Ranada Gentry had been employed as an investigator for the Office of the Public Defender and met with
Mr. Cole(Vol. I., Affidavit, p. 380.(10/14/08). She described that on a visit to Mr. Cole in prison that he
asked her about a book entitled,"Strong's Concordance." She described that he was so excited about this
book that he was behaving "similar to a 4 year old in a candy store" amidst his rapid breathing and
APPENDIX A
Exhibit 6
(27a)
shaking. She elaborated that while she had had clients with similar religious preoccupations, she had
never seen one as extreme as Mr. Cole.
Former defense attorney Gordon Lynn Burch III(Vol. I., Affidavit, p. 159)(1/13/15) described how when
he had worked on Mr. Cole's case he had been concerned about Mr. Cole's ability to understand legal
issues when the legal team tried to explain them to him. At that time he thought it was in Mr. Cole's best
interest to plead guilty to avoid the death penalty and he had repeatedly tried to explain these sentencing
options to him. However, Mr. Cole would not talk of anything but religion. He described that throughout
his trial he never considered Mr. Cole competent to go to trial. He recalled that throughout his trial Mr.
Cole's expression never changed and he remained completely detached from the court proceedings as
they unfolded.
Attorney James Bowen (Vol. I., Affidavit, p. 162, p. 352)(1/13/15), who was Deputy Division Chief for
the Tulsa Capital Division of the Oklahoma Indigent Defense System, described that competency issues
at trial were apparent for some time because Mr. Cole could not assist in his defense due to his religious
preoccupations. He described that during Mr. Cole's trial his only body movement was to blink his eyes.
When the jury's verdict was read aloud he did not move.
Vicki Werneke, who had been the Chief ofthe Capital Post Conviction Division(CPC)of the Oklahoma
Indigent Defense System (Vol. I., Affidavit, p. 165)(1/15/15) described similar experiences as described
by the other referenced professionals as lead counsel. She noted that the only conversations she had with
Mr. Cole were on religion. In these conversations she could not follow his thinking. She noted that she
has had clients with severe mental illness issues before; yet, in her experience, Mr. Cole withdrew deeper
into himselfthan the others with severe mental illness. Other inmates had told her about how Mr. Cole
never came out of his cell and kept his cell dark inside all the time.
Anastasia Cesario had served as a Research Assistant for the Capital Post Conviction Division ofthe
Oklahoma Indigent Defense System and had been on the defense team with attorney Vicki Werneke
(1/25/07). She had interviewed Judge Steidley regarding Mr. Cole's behavior in court(Vol. I., Affidavit,
p. 167)(2/26/07). On a scale of 1-10(with 10 as worst)she reported that the judge placed his
observations of Mr. Cole's dissociated behaviors at an 8-10 compared to others he had observed before
the court. Judge Steidley told her he ranked Mr. Cole as demonstrating the highest level of disturbance he
had seen in his court.
Timothy Wantland, JD had sat in on two days of the trial proceedings, and described that Mr. Cole had
seemed distant and disinterested in them. It appeared to Mr. Wantland that Mr. Cole had impaired mental
capacity(Vol. I., Affidavit, p. 170)2(/21/07).
Assistant Federal Public Defender T. Kenneth Lee represented Mr. Cole from 11/7/08 until he left the
Federal Public Defender's Office on 8/8/14.(Vol. I., Affidavit, p. 180). As with other legal counsel, Mr.
Lee's efforts to communicate with Mr. Cole were met with religious outpourings that were not
productive, and which provided his legal team with no assistance. By the end of 12/08 and through 2009,
Mr. Cole started refusing to meet with his legal team altogether. In 2009 Mr. Cole showed a distinct
pattern, wherein if he came out of his cell to meet with counsel he only stayed a few minutes or would
refuse to meet altogether. Most meetings were brief, lasting less than five minutes. Mr. Lee wrote an
email to Mr. Cole's case worker at the prison who in responding acknowledged to Mr. Lee that Mr. Cole
had not left his cell for over 2 '/2 years. During his five years of representing Mr. Cole, Mr. Lee reported
that he never had a substantive conversation with him that had not been eclipsed by his religiosity. Mr.
Cole was never engaged in the case, and was never able to assist counsel in legal proceedings. He
described how Mr. Cole's condition had regressed over time such that Mr. Cole's letters deteriorated from
writing in complete sentences to producing mere fragments ofthoughts written on scraps of paper. Mr.
APPENDIX A
Exhibit 6
(28a)
Lee noted that Mr. Cole did not think he would be executed, as he made statements of the like that,"God
would open the doors of the courthouse after his trial and he would be set free". Mr. Lee is not confident
Mr. Cole understands the significance of being executed.
Anna Wright(Vol. I., Affidavit, p. 189)(1/13/15) has been employed with the Federal Public Defender's
Office Habeas Corpus Unit since 11/08, and has reviewed the records collected on the Cole case. She
described that Mr. Cole has been increasingly withdrawn since when she initially met him in 2008. He
never made calls to their office unlike many clients. Over the past three years she has observed that he has
sent small fragments of paper with only partial and incomplete sentences that never contained any
reference to his case or court proceedings. She noted that "none of Mr. Cole's most recent notes indicate
he is aware he is scheduled for execution." His most recent notes are nearly identical in content: "he asks
for spare change for "important projects."
As Mr. Cole's execution date moved closer Ms. Wright described how on 1/18/15, for example, that his
attorneys explained to him that he will have two more chances to get his religious message out; yet,
nothing his attorneys said to him about his pending execution provoked any response or bodily
movement. As she put it: "[e]ven in the face of our direct statements and queries to Mr. Cole, he never
gave the slightest indication that he had any understanding, rational or irrational, of his pending execution
or the reason for it." She elaborated that Mr. Cole's religious preoccupations interfered with all efforts at
providing him with the basic information about his execution at the 35 days mark prior to the execution
date. When discussing with Mr. Cole the basic provisions for his execution, such as what would be the
content of his last meal, who he wanted to be on his visitor's list at his execution, who he wanted to
assume the custody of his belongings after his death, and with other such final details as well, he would
respond:"that's not really been decided [by God] yeY', or "that's not really decided either." Ms. Wright
further elaborated upon the frustration of getting Mr. Cole to realize that these lengthy discussions with
him about his execution were not made in the abstract but pertained specifically to him personally: "I left
the visits feeling like Mr. Cole did not appreciate the situation he was in regarding his upcoming
execution and the process/arrangements surrounding this. Anything from Mr. Cole that may have initially
appeared to reflect understanding was quickly diminished because of his underlying beliefs, which he
could not explain."(1/29/15 Affidavit)
Prison Staff
Available records from the Oklahoma State Penitentiary at McAlester(OSP)were also reviewed. Mr.
Cole's years of very poor hygiene and unwillingness to leave his cell are behaviors thoroughly
documented by prison staff. Most of these clinical notes, however, reflect little more than casual
observations of Mr. Cole's daily behavior in passing during the routine course of administering the
prison's daily tasks. As Mr. Cole typically spent his entire day in his cell, and interacted with virtually no
one, and since he did not create a behavioral disturbance that required staff attention or special
intervention, his days went largely unnoticed and sparsely documented.
By 2014 Mr. Cole's prolonged isolation, abhorrent hygiene and deeply regressed and vegetative behavior
could no longer be ignored by the prison clinical staff. Patti Stem, Clinical Coordinator with the
Oklahoma Department of Corrections(Vol. I., # 10, p. 129), reported in the Mental Health Status Review
(8/29/14)that Mr. Cole was presenting a low level of active psychotic symptoms, and that while he had
previously refused meals (for self-reported religious reasons) he was now eating. Ms. Stem also noted that
beginning in January 2014, Mr. Cole was showing behavior that evidenced clinical decompensation.
Among other observations, she noted that at the current time of writing her clinical note that Mr. Cole had
refused to engage with her. Other officers noted that Mr. Cole rarely spoke and would communicate with
a simple "Yes' or "No" throughout daily routines.
APPENDIX A
Exhibit 6
(29a)
The Department of Corrections Log(Vol. I., #11, dated 7/30/]4; p. 401)documented numerous instances
from March 2014, and thereafter, wherein Mr. Cole either refused to be seen by a staff member, remained
mute when spoken to, refused to be weighed or accept medical care, and demonstrated increasingly poor
eye contact and social withdrawal. In light ofthese staff observations reflected in the DOC Log, which
had been entered by multiple observers on the H Unit, Dr. Kirby noted on 3/11/14(Vol. I., p. 143)that
"schizophrenia is a possible diagnosis" for Mr. Cole. Dr. Kirby went on to document his rationale for that
inference by citing specific symptoms that are consistent with the diagnosis of schizophrenia. In his
charted clinical notes, Dr. Kirby further exposed a clinical contradiction in the prison records. He
indicated that the current mental health classification level as "zero" for Mr. Cole appeared incorrect;
noting that if Mr. Cole had been designated as having a mental health level of"B"(implicating a higher
level of severity) at age 39,then at age 49, his current mental health classification level could not now
logically be at zero (Vol. I., p. 144-145). In other words, Mr. Cole's mental condition had not
significantly improved over the last decade as would be implied by the classification rating in the records.
Rather, it had declined.
As with other observers on 7/28/14 Dr. Patst also noted: "increasing mental health concerns"(Vol. I., p.
438).
As Mr. Cole's planned execution drew near, on 1/26/15 (Vol. I., p. 640)Patti Stem, Clinical Coordinator,
accompanied the Prison Warden to meet with Mr. Cole. Ms. Stem documented the transaction following
Mr. Cole's refusal to participate in the 35 Day Notification Hearing. Mr. Cole is described as explaining
to both Ms. Stem and the warden that he did not come to the previous hearing because he was not
prepared to make decisions pertaining to visitation, his last meal, and other details associated with his
execution. He also told the warden he had to have a full body burial.
On 2/11/15 Patti Stem, Clinical Coordinator, again accompanied the Warden to CHSA to meet with Mr.
Cole again and documented the transaction (Vol. I., p. 635). This note carefully documents how the
warden had asked whether Mr. Cole knew that when an execution date was set that he would be executed
by lethal injection; and he said "yeah." When asked if he knew why he was being executed he answered,
"Yes."
A shift in the availability of Mr. Cole's records occurred in April 2015, effectively closing off any
opportunity for his legal team to review them. On 4/6/15 (Vol. I., p. 5220)the Oklahoma Department of
Corrections provided a Release of Protected Information document that authorized the release of medical
records which reads as follows: "Entire medical record except mental health." A Mental Health Progress
Note of4/16/15 (Vol. I., p. 629),for example, further indicates that Mr. Cole agrees "to have his physical
medical records [released], but apparently not his mental health." And that "he said that he had no needs
from mental health or medical at this time, that he had seen enough doctors for a lifetime."
Despite Mr. Cole's reported unwillingness to have his mental health records released some were,
nevertheless, released:
Beginning on 7/23/15 the Clinical Coordinator, Patti Stem documented the Warden's visit to Mr. Cole's
cell and noted that he OK'd the execution date that had been set. In this detailed note, Mr. Cole is
described as having many questions, and recalling numerous details from previous discussions when an
execution date had been set. He is reported to have asked detailed questions, such as whether he would
have to be cremated. He is reported to then correct himself by adding that,"I understand that isn't
possible." He also asked whether he could have a Messianic Rabbi conduct his funeral. When asked if he
knew why he was going to be executed, he responded,"my crime;" when asked what his crime was he
responded "murder." He acknowledged he would cooperate with the 35 Day Notification Hearing(Vol. I.,
p. 723).
APPENDIX A
Exhibit 6
(30a)
On 9/1/15 Clinical Coordinator, Patti Stem, again wrote very detailed observations of Mr. Cole's behavior
during his 35 Day Notification Hearing and thereafter(Vol. I., p. 616). Ms. Stem reported that during this
hearing Mr. Cole discussed details about the execution as well as wanting Kosher food for his last meal.
At the 35 Day Notification Hearing she described Mr. Cole as clear and rational and able to talk about his
spiritual advisor, his desired witnesses to the execution, as well as the details of the disposal of his body.
He signed his name on the document as opposed to an "X" as on previous occasions. She elaborated that
he gave no evidence of a thought disorder, was not attending to internal stimuli nor was he experiencing
auditory or visual hallucinations. He acknowledged anxiety about the execution process and was provided
with information about the availability of a mild anti-anxiety medication if he wanted it. Mr. Cole stated
he used prayer and scripture to combat anxiety. The 35 Day Hearing and following assessment were
noted as taking two hours to complete, during which Mr. Cole was described as actively engaged in the
discussion.
The Oklahoma State Penitentiary(OSP)Execution Log provides a running observational assessment of
an inmate's behavioral status every 15 minutes during the 35-day period immediately prior to the
scheduled execution date. Mr. Cole's Execution Log began on 9/2/15 and stopped at 11:38 on 10/2/15
when an Indefinite Stay of Execution was implemented. Throughout this observational period during the
countdown to his execution Mr. Cole primarily slept, sometimes did not eat, and he refused attorney
visits.
On 9/15/15, while Mr. Cole would have been under the 35 day countdown to execution, it was noted on a
Mental Health Assessment Form that he crawled [italics not original] to the cell door as he was provided
with photos of the Holy Land and was appreciative ofthem.(Vol. I., p. 603). Such crawling behavior was
reported again on a Mental Health or Mental Status Review, dated 9/24/15(Vol. I., p. 594) which noted
"Offender Cole got out of bed and crawled to the door to give this QMHP a piece of paper with updated
phone information on it for his son." The writer of this clinical note, nevertheless, indicated that Mr. Cole
is "feeling really good" this morning.
Prison Cellmates
There are several affidavits from Mr. Cole's former cellmates on H Unit at OSP. Each of these former
cellmates found Mr. Cole`s behavior to be bizarre and his hygiene highly offensive.
Former cellmate, Carlos Cuesta Rodriguez, noted in his affidavit(Vol. I., p. 148, 1/21/15) that not once
in his entire year with Mr. Cole did he observe him attend to his hygiene by taking a shower or brushing
his teeth. Throughout this year Mr. Cole talked to no one, kept to himself, and always had the TV on to a
religious channel. He received stacks of mail from religious people throughout the world that Mr. Cole
piled up in stacks within the cell. He would sometimes read his bible or write on the pages. As inmate
Rodriguez succinctly put it: "Cole was not in his head."
Inmate Michael Edward Hooper had been Mr. Cole's cellmate for seven months,from 3/05 to 10/O5.
(Vol. I., Affidavit, #3, p. 354). Inmate Hooper variously described Mr. Cole as "repulsive","anti-social,
stayed to himself',"kinda [sic] nutty","very moody" or "off in another world." Inmate Hooper described
that he related to Mr. Cole in the same manner as he would to someone with Alzheimer's disease in a
nursing home. Mr. Cole's hygiene was poor and inmate Hooper tried to show Mr. Cole how to wash
himself. He described that Mr. Cole would go into what appeared to be "trance-like states" quite often.
Mr. Cole preferred to keep the lights off and live in the dark. When watching television he felt that Mr.
Cole couldn't follow the story being shown on the screen, that he was simply watching the visual
movements without understanding anything else about the plot or characters. Mr. Cole would go on fasts,
which ranged from one to 20 days in duration. Inmate Hooper said that Mr. Cole swore:"God put him in
APPENDIX A
Exhibit 6
(31a)
prison and didn't seem to acknowledge the real reason he's here. He thinks God is going to release him
from prison and says God took his family away." In October of 2005 he described how Mr. Cole attacked
him, which led to Inmate Hooper being transferred to a different cell away from Mr. Cole. He described
Mr. Cole's assault: "it wasn't him coming at me swinging, it was him coming at me with claws and he
didn't know what to do." He noted that "I really don't think Mr. Cole understands the seriousness ofthe
situation. He lives in his own little world and thinks everyone needs to take care of him."
Review o Transcript ofProceedin~s on 8/28/15 before Jude James Bland. (Begins on p. 849).
This is a very long and complex transcript. Provided here are but a few of the poignant exchanges with
Mr. Cole in the courtroom that serve to illustrate aspects of his thinking as it pertains to the complex
litigation about his future execution.
During questioning by attorney Michael Lieberman, one of Mr. Cole's defense attorneys, Mr. Lieberman
pulled up his chair next to him in order to ask questions and to hear Mr. Cole's barely audible and
frequently mute responses. Astonishingly, Mr. Cole said to the court that Jesus was coming back today
[italics not original](Vol. II., p. 868). Judge Bland asked Mr. Cole if he was aware that an execution date
had been set, to which Mr. Cole replied: "October 7." "Go home. To be with Jesus.(Vol. II., p. 872)."
Judge Bland asked him if he understood why he was sentenced to death; and Mr. Cole replied "death of
daughter"(Vol. II., p. 873). On the one hand, it would be simple to assert that based upon Mr. Cole's
succinct answers to Judge Bland's questions about execution that he does, in fact, know he is to be
executed and why. Yet, if Mr. Cole believed that Jesus was returning "today," upon that very day in
which he sat in the courtroom, then it cannot logically follow that he accepts that he would, in fact,
actually be executed on the future date of October 7t''. By Mr. Cole's logic he cannot be executed- he
would have been taken by Jesus well before the execution.
Federal Public Defender Investigator Julie Gardner testified that throughout the case investigation Mr.
Cole has not been able to assist his attorneys, and that he will talk exclusively about his ministry and
religion (Vol. II., p. 878). She further elaborated upon the thousands of pages of Mr. Cole's religious
materials, which includes 35 Bibles and two Concordances, he has collected since incarceration (Vol. II.,
p. 879). She has had to coordinate with prison officials to periodically collect these materials from Mr.
Cole's cell since they tend to accumulate in large stacks in the cell. She admitted Mr. Cole has remained
focused upon getting his spiritual message out, but she has not been able to understand from him what
that message is. He has named his ministry "Seed Faith Ministries Highways and Byways Ezekiel
Shepherture (sic)." The content of his messages focus on the "end times" for the world, and he has
discussed other issues such as the "Bakersfield Prophesy"(Vol. II., p. 889). Specifically, the Bakersfield
Prophesy refers to when Mr. Cole had become "born again" in Bakersfield, California in 1988/89. He had
been at a revival meeting and someone a few pews ahead of him had told him:"the world will know
you." When this statement was made to him a second time he became excited because he thought he was
going to bring glory to God's name (Vol. II., p.893).Ms. Gardner further testified that Mr. Cole thought
that his crime and execution, along with all the media coverage of both, was partial fulfillment of this
prophesy, and he felt that God had made him do it [the homicide against his child] because he had
backslidden twice from God.
Ms. Gardner further elaborated that Mr. Cole had thought he was "going home [to God]" today, in
reference to Mr. Cole's above referenced assertion that Jesus was returning on this very day in time (Vol.
II., p. 899). She described that the defense team had tried to see if Mr. Cole really understood that October
7t~' was his scheduled execution date. She described how when confronted with this specific information,
"He was quiet for a while, did some sort of weird giggle, and then said `you just have to wait, the Lord
likes to show up sometimes at the very last second,' is what he said. Then he cited Luke 21:36(Vol. II., p.
10
APPENDIX A
Exhibit 6
(32a)
905)." The legal team then went through the biblical verse with him but still had no clear idea if Mr. Cole
truly understood that he was going to be executed on October 7th.
The court denied the petitioner's request for the court to order the Department of Corrections to have the
defendant sedated and transported for medical tests. The court also found no evidence the Warden had
abused her discretion in the case with her determination that Mr. Cole was competent to be executed. Yet
the court also acknowledged that it found some evidence that supports the position that the defendant is
not competent or sane (Vol. II, 1097).
II: Evidence Review of Ben Cole's Personal Documents(consisting of 16 standard storaEe boxes of
religious-themed materials(various bibles, books, pamphlets, tracts, post cards, essays, and hand
written notes signed either by Mr. Cole or written by others to him)
The following clinical inferences are drawn from a review of these voluminous materials:
Mr. Cole is deeply obsessed with religious materials and he maintains his belief that he has a
religious ministry. The nature of his religious preoccupations is consistent with the hyper
religious delusions of grandeur that have been integral to his paranoid schizophrenic condition,
and which has been in evidence for many years. These religious ideas are fantastical,
apocalyptic, and on the extreme fringe far outside the mainstream of religious beliefs. These ideas
are amplified and reinforced by his belief that God speaks directly to him. He also made
numerous and detailed notes about prison canteen prices which became more intricate over time,
often crowding many figures, symbols and lists of items onto a small slip of paper.
2. There has been superficial correspondence between Mr. Cole and various evangelical ministries
throughout the United States, and with other writers internationally, who have reached out to him
through various religious missions to provide him with their emotional support and pen-pal type
correspondence. It is noted that in the early years of this correspondence, Mr. Cole's letters were
written in a manner that was relatively clear, cogent and logical. In that correspondence he would
often request money for stamps or stationary to support his continued efforts to correspond with
various ministries. In late years, of course, his correspondence lacked the clarity and rationality of
earlier years.
3. Mr. Cole demonstrates a very idiosyncratic method of making notations and cataloging all of his
incoming correspondence regardless of the source. Over time this notation system showed less
stylized cursive, and became increasingly complex and decipherable only to him. It is noted that a
reversion to the use of increasingly cryptic and secret codes, or symbols, is a common symptom
manifestation among chronic paranoid schizophrenics who can go on to develop a language
system that consists of autistic logic and symbolism understood only by themselves and without
shared social consensus.
4. Mr. Cole received from a wide variety of sources a large volume of religious books, pamphlets
and tracts over the years. However, he seemed to have actually read very few ofthese materials.
There was an absence of any kind of markings in most of the materials, or indications ofturned or
creased pages, or any other indications the materials had been handled and read. Mostly these
materials were collected, cataloged, and stored in his cell but did not appear to have been read.
5. Those materials that were apparently read were very short religious tracts with less than 10 pages
of content, or were animated cartoon type strips that convey a biblical theme. Given his
documented educational history of reading problems, and low average verbal intelligence, it is
11
APPENDIX A
Exhibit 6
(33a)
not surprising that this elementary level of reading material would be what he actually tried to
read.
6. It appears that Mr. Cole kept all ofthe materials he received and threw nothing away. This
hoarding behavior resulted in the prison facility needing to periodically request that Mr. Cole's
attorneys come and take all of the materials out of his cell as the materials exceeded the amount
inmates are allowed to keep pursuant to Department of Corrections regulations. Materials taken
out of Mr. Cole's cell included empty plastic food wrappings pressed among his belongings,
along with some of the books wrapped in cut-out paper bags.
7. Mr. Cole's penchant to collect everything and discard nothing from his cell is also consistent with
classic hoarding behaviors observed among the obsessive compulsive conditions. The hoarder
typically assumes they cannot part with anything since it may be needed later.
8. In his early years of incarceration Mr. Cole's penmanship can be described as generally neat,
crisp and precise. In later years his writing shows crowding tendencies, indicative of increasingly
impaired abilities with planning, organizing and sequencing written materials. Increasingly more
information will become crowded onto a single page, or small corner of a page, comparable to
micrographic(sometimes observed in neuropsychiatric conditions).
9. When Mr. Cole reviewed written materials/publications from earlier years(2005, 2006, 2007) his
basic cognitive information processing abilities appeared relatively intact, as evidenced by his
ability to underline biblical references on the pages, circle meaningful words, or make coherent
notes in the margins. His cognitive processing skills became more impaired over time after those
early years.
10. The themes and orientation of the religious literature Mr. Cole had requested from various
ministries to send him were principally devoted to prophesy and apocalyptic themes, and other
variations on the "end times." Over time, the content of the materials he requested were
increasing divergent from mainstream religious themes, and moved more to the quasi-psychotic
fringe of religious ideas. Among the fringe documents included numerous tracts of pseudoscience speculation, combined with apocalyptic themes of world destruction, which involve
futuristic technologies that read like cartoons or elementary school-level pulp-fiction. These
materials would appeal to an unsophisticated mind.
1 1. Mr. Cole requested numerous documents that pertain to popularized urban myths, and conspiracy
theories. In an article in the New York Times(8/9/06)regarding universal health coverage, for
example, Mr. Cole wrote comments in the margins about how this could be the forerunner ofthe
biblical "Mark of the Beast" and made other apocalyptic notations about this topic.
12. There were few documents that contained biographical notations in the margins. Those that exist
demonstrate copious notes indicating that the material he was reading had strong emotional
resonation for him. In one document, for example, titled "Dealing with Hindering Spirits ", Mr.
Cole underscored passages that pertain to demonic attacks. Such notations were not found in
other texts. Though highly suggestive, firm conclusions cannot be drawn from this single text
regarding whether Mr. Cole has ever felt personally attacked by demonic forces; though such
biographical notations such as this one would certainly raise such questions.
13. There is a strong suggestion that at times Mr. Cole has tried to find existential meaning in his
suffering while in prison. He would underline passages that describe how God guides us and
12
APPENDIX A
Exhibit 6
(34a)
exposes us to suffering to wake us up spiritually, or how sinners can be forgiven and those who
suffer from their guilt "will be given gladness of heart."
III: Mental Status Interview and Clinical Observations:
2/16/16. 15~ Visit. 1.0 hour total time• Attempted Clinical Interview with Mr. Benjamin Coleaccompanied by Attorney Michael Lieberman and Investigator Julie Gardner:
At the H Unit at OSP, Supervising Officer J. Whala reported that Mr. Cole would not meet with us. Mr.
Lieberman discussed with Officer Whala the manner in which Mr. Cole had been asked about whether he
would agree to the visit. Officer Whala reported that he told Mr. Cole that his attorney and a doctor were
here to meet with him. Officer Whala agreed to Mr. Lieberman's request to ask Mr. Cole for a second
time if he would meet. Officer Whala returned with the same answer that Mr. Cole would not meet with
us as requested. Officer Whala was informed that we would return tomorrow for another attempt to
interview Mr. Cole and Officer Whala agreed to convey this information to Mr. Cole.
2/17/16 2°d Visit —2.0 hours total time. Clinical Interview with Mr. Benjamin Cole- accompanied by
Attorney Michael Lieberman and Investigator Julie Gardner:
Mr. Cole was interviewed in H Unit's interview room, which was equipped with a table, four chairs and
several stools situated behind the chairs. The walls were of an asbestos type material that completely
insulates the walls. There was a large viewing window that looks outwards to an interior hallway within
H Unit.
Clinical Observations of 2/17/16 Interview:
Mr. Cole was wheeled into the interview room in a wheel chair by one of the H Unit guards. He was in
shackles on his feet and his hands. He was dressed in roughhewn clothing that appeared to be comparable
to sweat clothing. He appeared very unkempt and had a long scraggly beard. His hair was very long and
unwashed in a thick mat with what appeared to be a partial pony tail. He appeared very psychologically
regressed and vegetative. He did not appear oriented in any sphere (time, place, person or situation). It
was difficult to tell if Mr. Cole was actually asleep or not as he kept his eyes closed throughout the
contact. It was not possible to tell if he was responding to internal stimuli, though there was no evidence
of grimacing, mumbling to himself, or any other mannerisms typically correlated with this phenomenon.
In the wheelchair he sat slumped over, leaning to the left, though still maintaining a very rigid posture.
Such behaviors are commonly observed in the catatonic states, or other forms of neuropsychological
compromise. His fingers were curled partially inward toward the palms, not unlike individuals with
cerebral palsy. His head hung low and rested against his chest. Mr. Cole rarely made a verbal statement
and when he did his speech was barely audible. He made vocal grunts when he was answering in the
affirmative to a question. He never made eye contact with anyone. Most often he remained silent and nonresponsive to any question posed to him. His lips did not move after he answered the first two questions
(described below). After that he made no speech sounds whatsoever. These are the two questions posed to
Mr. Cole that he did answer:
Question #1. Ms. Gardner opened the interview by asking Mr. Cole if he was in pain or upset? Mr. Cole
replied: "just sleeping."
Question #2. Mr. Lieberman asked Mr. Cole if he recalled that he had been told that we were here
yesterday? Mr. Cole replied: "not really."
Interactional Sequence following the above two questions that Mr. Cole answered:
13
APPENDIX A
Exhibit 6
(35a)
Mr. Lieberman then proceeded to introduce this examiner and offered a general overview of why he was
here. Mr. Lieberman further elaborated to Mr. Cole that they have been worried about him, and they
brought Dr. Hough along to help them figure out some issues about him- specifically, whether there is a
mental health issue with Mr. Cole, or whether he is so devoted to God it is hard to communicate with him.
Mr. Lieberman further elaborated that they have also asked Dr. Hough to help them investigate the
question of whether he is competent to be executed. Mr. Lieberman then asked Mr. Cole if he understood
what had just been said to him. Mr. Cole did not respond verbally or physically to any of these questions
or comments directed to him. It is, therefore, unknown if Mr. Cole understood what, if any, portion of Mr.
Lieberman's comments directed to him.
After Mr. Lieberman had finished speaking to Mr. Cole, this examiner introduced himselfto Mr. Cole,
and offered a brief summary of his background and the purpose for today's interview. He went on to
explain more fully that he has been asked to address the issue of whether tie is currently psychologically
competent to be executed. Mr. Cole was informed that the evaluation would consist of interviews,
psychological testing if applicable, and a review of all available case evidence. This examiner then
informed Mr. Cole that he had also brought an Informed Consent Document which he would like Mr.
Cole to review with him, and after having all of his concerns and issues addressed, to please sign the
document. He was further informed that the informed consent process is an ongoing process which he can
revoke at any time, and that he should always feel that it is appropriate to raise any questions or concerns
he may have about the evaluation and informed consent going forward. Thereafter, there ensued a long
silence and Mr. Cole did not respond to this.
Mr. Lieberman then attempted to recruit Mr. Cole's attention by reading some scriptures from a bible he
had brought with him. Mr. Lieberman read aloud from one of Mr. Cole's favorite biblical passages: Isaiah
53:5. Mr. Cole did not respond. Mr. Lieberman then read from Romans 8:28. Again, Mr. Cole did not
respond. Mr. Lieberman asked him if he could help him understand the passages? Again, Mr. Cole did not
move or respond.
Ms. Gardner asked if he has been eating better since he looked like he had been putting on some weight?
Mr. Cole did not respond.
Mr. Lieberman asked where he wants his Bible's to be sent? To his mother? Ben Jr.? Mr. Cole did not
respond.
Mr. Lieberman asked if he has met the new warden yet? Mr. Cole did not respond.
After a very long silence this examiner tried to return to the competency issue again. In an attempt to
elicit his factual understanding regarding the specific issue ofcompetency to be executed, the following
questions were asked:
(1)"Ben, why does the state intend to execute you?" Mr. Cole did not respond.
(2)"What did you do that the state intends to execute you for?" Mr. Cole did not respond.
At thatjuncture this examiner decided to back up and try to elicit a more basic understanding of Mr.
Cole's mental status orientation. He was asked the following questions: "Where are you located right
now?""What is the current date and time?""What is the year?""What is the name ofthis building you
are in?""Why are you in this building?""What is your understanding ofthe situation and purpose ofthis
meeting with us?" Mr. Cole was non-responsive to all questions.
14
APPENDIX A
Exhibit 6
(36a)
Ms. Gardner commented about how Mr. Cole is a man of faith and the difficulty he has had in getting
kosher meals. Mr. Cole did not respond to this comment.
Ms. Gardner asked Mr. Cole if he recalls when he was fasting in order to get his kosher meals? Mr. Cole
did not respond to this question.
Ms. Gardner again asked if she can help him as he looked like he is in pain; and then asked whether it
hurts to move? Mr. Cole did not respond to either ofthese questions.
This examiner then returned to the competency to be executed questions:"When you were talking to the
warden and she asked you if you knew why the State was going to give you a lethal injection- do you
recall what you said?" To this question Mr. Cole appeared to raise his head ever so slightly but did not
answer.
It is noted that Ms. Gardner observed aloud that Mr. Cole has a hernia but he will not allow medical
intervention for this condition. She further noted that the hernia is probably painful. Again, Mr. Cole was
non-responsive to this comment as well.
After yet another period of prolonged silence, while Mr. Cole remained inert and non-responsive in his
wheelchair, this examiner finally concluded that the current interview was not likely going to be any more
verbally productive than it had been thus far and that it was time to conclude the interview. This examiner
thanked Mr. Cole for his time, and told him that he planned to come back to see him again and that today
had been a good start.
Clinical Impressions from 2"d visit:
Mr. Cole presents as a classic example of a severely regressed chronic schizophrenic patient(with
catatonic features), whose condition is likely further compromised by the previously detected brain
disorder captured by neuroimaging studies. His presentation is consistent with chronic and persistent
mental illness(SPMI). His deeply regressed state is further compounded by years of chronic
institutionalization (with very low levels of sensory stimulation and minimal social contact), and now
with his chronological advance into his middle years. Current clinical observations are consistent with
prior records and clinical observations reported by multiple observers over time. He is very nonresponsive to external stimuli or to the vicissitudes of social interaction. There is no affirmative evidence
from this interview that he is currently oriented to time, place, person or situation. There also is no
affirmative evidence from this interview that he understands that he has been sentenced to be executed or
that he understands the reason for the execution. There is no evidence to suspect that any of Mr. Cole's
presentation today is a product of malingering.
3rd visit 5/10/16 1 0 hour total Attempted Clinical Interview with Mr. Benjamin Cole- accompanied by
Attorney Michael Lieberman and Investigator Julie Gardner:
At H Unit Mr. Lieberman, along with Ms. Gardner and this examiner, were greeted by Officer J. Whala,
who waved his hand at us as we entered to signify that Mr. Cole would not meet with us today as
scheduled. Officer Whala explained that he waved his hand at us in the same manner that Mr. Cole had
waved to him when he told him his visitors had arrived. At Mr. Lieberman's request Officer Whala
agreed to try one more time to ask Mr. Cole if he would come out of his cell to meet with us. Officer
Whala returned with Mr. Cole's answer:"He said, nope, not seeing." Officer Whala also provided a
15
APPENDIX A
Exhibit 6
(37a)
small hand written note that he reported was printed by Mr. Cole, which read: "not ready." The note was
signed Benjamin Cole.
IV: Discussion and Integration:
This report is based upon three primary sources of data: first, a review of prior records and clinical
evaluations that have accumulated over the years; second, a comprehensive review of written materials
sent to Mr. Cole or generated by him. This review consisted of examiningl6 standard boxes full of
materials; third, direct clinical interview and attempted interviews and observations of Mr. Cole on H
Unit of OSP where Mr. Cole has resided now for well over 13 years. The combination ofthese three
divergent sources of information complement and inform one another; yet each source of data is also
unique and provides information somewhat different than the other sources. Analyses ofthese three
divergent sources of data combine to provide convergent validity to this analysis, and the conclusions and
opinions that follow are strengthened as no one single strand of data or source of data is considered fully
controlling but is reliant upon cross-validation from all three sources.
Beginning with the brief synopsis of Mr. Cole's background reflected in the records review, it is evident
that from its inception this has been a deeply troubled life course that had a most inauspicious start and
which has assumed a progressively downward arc from the early years. Mr. Cole showed signs of mental
disturbance from a young age, which was compounded and reinforced by an abusive and boundaryviolating (incest) environment, and through his own use of toxic poly-substances from an early age
(alcohol, gasoline fumes). Mr. Cole's academic difficulties, with several repeated grades and documented
deficits in reading and auditory comprehension, are well noted. Compared to others his age, Mr. Cole's
achievement scores were low. His later closed head injury from a hammer blow to the head may well
have become an acquired organic brain deficit superimposed upon his limited native cognitive abilities.
His emotional withdrawal and isolation was prominent by his late adolescence. Around this time, as well,
he was showing overt signs of paranoia and believing rock bands were sending him messages through
their music. Both his mother and brother described how he "snapped" by the time he was in the Air Force.
Following his early incarceration for the physical abuse of his son, Mr. Cole became increasingly socially
adrift, living as a homeless person in tents and under bridges. Unable to handle steady employment his
progressive downward drift carried all the hallmarks of a slow prodromal decline into chronic
schizophrenia. His alcohol use continued, which by this point in his 30's may have been a form of selfmedication against the emerging psychosis. Mr. Cole sought refuge and understanding in fundamentalist
religion and it was at a prayer meeting that he obtained his "Bakersfield Prophesy." His relationship with
Susan Young produced a baby girl, Brianna Victoria Cole, whose life Mr. Cole tragically extinguished.
While Mr. Cole was evidently showing indications ofemergent schizophrenia prior to arrest and
incarceration, his psychological symptoms of growing paranoia and religiously themed delusions did not
receive clinical attention until after his arrest and as he was moving forward to trial. In this context his
legal counsel repeatedly questioned his ability to competently assist them in preparation of his defense.
From the very beginning of his legal journey there are accounts of his emergent religiously themed
delusions that continually interfered with rational communication with his attorneys. Early competency
evaluations noted his religious preoccupations but would ultimately find that, nevertheless, he retained
sufficient capacity to assist counsel in his defense.
Neuropsychological evaluations ultimately extended clinical understanding of Mr. Cole's behavior
beyond the strictly psychological realm, and into the realm of brain based disorders. Beginning with Dr.
Sharp's neuropsychological screening(10/25/03) and then on to Dr. Basso's full neuropsychological
assessment(4/22/04), the obtained test data from these specialized evaluations strongly suggested
underlying neuropsychological deficits. Follow up MRI studies(9/04) subsequently identified an 11 mm
lesion located deep within the while matter of the frontal area of the left hemisphere. Subsequent analysis
16
APPENDIX A
Exhibit 6
(38a)
of these findings by a range of experts confirmed the MRI finding, and all ofthese experts recommended
that further follow up studies were necessary to determine if this lesion was continuing to grow. If the
lesion continued to grow, such as might be the case if it were a tumor, then the lesion's encroachment
upon other areas of the brain would subsequently impact brain functioning and have direct impact upon
Mr. Cole's mental capabilities. That none of these recommended follow up studies have been conducted
over the past 12 years is surprising. A review of whether medical standard of care is being met would be
useful. Mr. Cole's attorneys have been prohibited from conducting the recommended evaluations on Mr.
Cole's brain condition.
In the absence ofthis kind of medically indicated follow up evaluations, and without further information
about the current status ofthis brain lesion, it is not possible to discern how much of Mr. Cole's current
very regressed and deteriorated condition is due to the lesion and how much of his condition can be
attributed to his schizophrenia. Without this follow up information it is also not possible to know what
Mr. Cole's clinical response will be to any of the treatments that are provided for each of these conditions
(paranoid schizophrenia and brain lesion) separately or if treated in tandem.
Since incarceration multiple legal teams have dealt with the frustration of not being able to adequately
communicate with Mr. Cole. Their observations and complaints have invariably revolved around the
same core issue: that his perseveration upon religiously-themed stifles all efforts to engage with him in
rational discourse, to further the course of investigations on his behalf, to help him make rational and
informed decisions about his legal case, and more. Attorney T. Kenneth Lee,to cite but one example,
noted that in his over five years working with Mr. Cole, that at no time was he ever able to have a
coherent discussion with Mr. Cole. Mr. Cole's legal teams over the years have learned to essentially live
without his help or input since it has never been forthcoming due to his ongoing and persistent mental
problems. These problems also appear to have assumed larger proportions after approximately 2008.
Thereafter, Mr. Cole's refusal to come out of his cell to meet with his attorneys and to remain
incommunicado with them became routine. Meetings with attorneys, when they did occur, were often less
than five minutes then Mr. Cole would want to return to his cell. This pulling away from his attorneys is
mirrored by his lifestyle in the prison, wherein he has become increasingly isolative, non-communicative,
increasingly preoccupied with delusional religious ideas and oblivious to his personal hygiene.
Prison officials and several ex-cellmates have also offered narratives of Mr. Cole's behavior over time.
These observations from within the prison itself essentially mirror and reinforce those observations
provided by his past and current attorneys. In the prison system, Mr. Cole has become increasingly
reclusive, and isolated, and his hygiene has deteriorated to the point of being intolerable to others. He has
gone for long stretches oftime of never leaving his cell, up to a reported period of2 '/2 years, all the while
living secluded in his cell with the lights low or completely off. He has become completely immersed into
his inner world of religiously themed delusions and surrounded by his mounds of books and papers, most
of which have been cataloged and stored but never read.
Mr. Cole's voluminous collections of books, articles, pamphlets and various micrographic scribblings
were reviewed and a conservative list of inferences were derived from this voluminous mass of materials.
The magnitude of Mr. Cole's religious preoccupations is clearly evident as there is simply an absence of
any material within these 16 boxes that pertained to any topic outside ofthe religious. Over time the
content ofthese materials has moved increasingly to the fringe of religious ideas and into the realms of
the fantastical and the delusional. That Mr. Cole perhaps derived some modicum of social support from
his array of corresponders and well —wishers is quite likely. Still, Mr. Cole considered all ofthese
materials part of his ministry. It is not clear from these materials what his ministry purported to
accomplish aside from his requests for money to buy stamps and stationary. Mr. Cole has told his
attorneys that all of his books and materials are part of his religious ministry and that the mother of his
deceased child can do her ministry as well. Yet he does not attempt to provide ministry to others in his
17
APPENDIX A
Exhibit 6
(39a)
local environment or otherwise reach out to spread his ministry. Mr. Cole wrote a letter, in July of2015,
to his mother and only recently did she open the letter. On the back of the letter he attached a strand of his
hair and four of his teeth (personal communication from Julie Gardner, Investigator on Cole case).The
content of these multiple stacks of materials, which ranged from the conventional to the outer edge ofthe
religious fringe, also dilated particularly upon the apocalypse and end ofthe world. Curiously, Mr. Cole
appears to have actually read very little of these materials and those he looked at are written like
children's comic books. A steep decline in Mr. Cole's mental functioning was also inferred over time
from these materials, as his writing became increasingly symbolic and cryptic, depicting a thought
process decipherable only by him.
Despite the breadth ofthese materials reviewed, it is acknowledged that this report also contains limited
direct interview data from Mr. Cole himself. This is despite the multiple attempts by this evaluator to
interview him. The one interview available (2/17/16), albeit of limited duration and scope (as Mr. Cole
remained inert and non-responsive to all attempts to engage with him), nevertheless provided a window
into Mr. Cole's current mental status. My findings from these interview attempts and behavioral
observations are consistent with multiple observations of prison staff(with the exception of Ms. Stem
when accompanied by the warden; see below), with Mr. Cole's attorneys repeated efforts to engage with
him over time, and with the more recent evaluation attempts by Dr. Morris in 2015. It is also noted that
this examiner was denied the opportunity to attempt to interview Mr. Cole in his cell. On two of the three
attempts to interview Mr. Cole he would not leave his cell. It is unknown as to whether an interview with
him in the cell would have been more productive since it is his natural habitat. It is conceivable that he
might have been more responsive since he would not have had to endure a painful move to the interview
room.
The actual attempts to interview Mr. Cole,though invariably yielding a poverty of verbal statements(he
answered a total two questions), were nevertheless quite informative in terms of the opportunity to
observe Mr. Cole's behavior within a social context. Mr. Cole classically presents as afflicted with
chronic and persistent mental illness that is severe and which is consistent with the previously offered
diagnoses of chronic paranoid schizophrenia with delusions of grandeur and negative symptoms. The
contribution of the above noted brain lesion is not currently known but must be understood to be factored
in to the analysis. Such presentations, as observed with Mr. Cole, are typically observed among the back
ward units of long term state hospitals where patients are no longer considered treatable and are merely
provided custodial care. Mr. Cole appears to be receiving only custodial care in his current prison
environment as well. Mr. Cole's presentation in his wheel chair, wherein he remained slumped over and
non-responsive with eyes closed, is entirely consistent with prior evaluations (see Dr. Morris's several
excellent evaluations in 2009 and again in 2015 for further amplification).
As noted previously, the original Clemency Application for Mr. Cole was submitted on 1/23/15 (Vol. I.,
p. 194). Since then concerns about Mr. Cole's declining mental and physical condition have increased
significantly as well as the ability to independently assess his decline.
Finally, there are several miscellaneous topics that should be addressed. The first is that the issue of
malingering has been raised by medical practitioners at OSP. Malingering is an affirmative psychiatric
diagnosis and it must be established by a comprehensive psychological evaluation to assess this concern.
There is no evidence from the records that this sort of psychological evaluation has been conducted;
malingering is not a psychological diagnosis that is gratuitously established based merely upon casual
observation during a routine physical examination.
The second observation concerns clinical documentation of Mr. Cole's condition within the prison
system. Patti Stem, Clinical Coordinator (professional credentials not indicated in the records) wrote very
detailed notes about the 35 Day Notification Hearing and thereafter. These notes are dense with
18
APPENDIX A
Exhibit 6
(40a)
information and nuanced detail about Mr. Cole's mental functioning and the detailed questions about his
execution he asked during these encounters. What is striking in these notes are their remarkable depiction
of Mr. Cole as fully oriented and engaged with the interview process; these notes are in marked contrast
to the sparsity of other clinical notes written by other prison staff over the years. They are also in contrast
to the typical notes from other observers at the OSP and his attorneys over the years who portray Mr. Cole
as rarely saying anything and as generally non-responsive to efforts to engage with him. Despite the years
of such conversations his attorneys and professional evaluators have had with Mr. Cole, in none of those
encounters was Mr. Cole able to so clearly and distinctly articulate his understanding of his pending
execution as in these notes written by Ms. Stem. In these notes documenting conversations with the
warden, Mr. Cole is remarkably depicted as fully competent to be executed as he understands in great
detail why he is to be executed, when he will be executed, and the reason for his execution. Ms. Stem's
notes do not explain or attempt to reconcile the large discrepancy between Mr. Cole's very high level of
cognitive tracking and logical engagement as depicted during these several interviews with the warden,
and the many years and multiple attempts during which others have tried and failed to achieve these same
results.
If OSP staff has Mr. Cole's previous mental health records, which would include all ofthe evaluations
and neuropsychological evaluations, as well as the expert opinions from the neuroimaging experts, there
is no indication that these records have been clinically integrated into their formulations regarding his
clinical presentation and clinical course. With the exception of Ms. Stem's notes(see above), the
remainder of the clinical observations from the prison staff of Mr. Cole's daily behavior are sparse and
consistent with custodial care. The exception to this practice was Dr. Kirby (3/11/14) alert to the
contradiction in the prison records which documented that age 49 Mr. Cole's current level of mental
functioning and concern was rated as "zero", while noting that at age 39 he had been classified at level
"B." Mr. Cole's psychological condition has continued to deteriorate not improve.
A third observation is that schizophrenia is a severely debilitating mental disease. It is chronic in nature,
though its course can be effectively managed with treatment when introduced in the early stages ofthe
illness. There is no known cure for schizophrenia and the course is often progressive, especially if
untreated. Mr. Cole's schizophrenia has not been treated in years. In his untreated state his condition will
continue to become progressively worse. It will not spontaneously remit, or reverse course and improve.
He demonstrates chronic and persistent mental illness(SPMI).
The currently observed negative symptoms of Mr. Cole's schizophrenia are different than the active
symptoms of the illness. Active symptoms are demonstrated by the presence of auditory and visual
hallucinations, active delusions, and often bizarre verbalizations and behavior. Active symptoms draw
social attention and in prisons often require active staff management. Mr. Cole's stage ofthe
schizophrenic illness has gone beyond this active and observable phase. The course of his illness has
moved to the stage referred to in the common parlance as being a "burnt out schizophrenic." Such
individuals remain socially avoidant, typically have intolerable hygiene, and appear mentally vacuous and
empty, as though literally devoid ofthought. Such individuals present as mere shells of their former
selves, with an absence of identifiable personality features; in a word, they are no longer who they once
were. Mr. Cole demonstrates the negative symptoms of schizophrenia, which is a manifestation of:
having reached a chronic stage of the illness wherein he has lived with the illness now for many years;
that the illness has not being treated for many years, if ever; that he has lived in a very low stimulation
environment that is devoid of novelty and change and opportunities for meaningful human interactions.
The end result of these various factors leads to an individual who lives almost exclusively in their own
mental universe apart from the rest of humanity. That Mr. Cole's current condition has not required
aggressive staff management and intervention by no means indicates that he is now no longer psychotic.
To assume otherwise is to misread his psychopathology by examining only one side of the coin. Negative
symptoms are a manifestation ofthe schizophrenic psychopathology and are considered part of the
19
APPENDIX A
Exhibit 6
(41a)
psychosis, albeit at a different stage. An absence of overt behavioral problems that require staff
management and intervention (such as use of isolation or special management)also does not equate to
competence to be executed.
Summar~ofClinical Condition:
1. Mr. Cole is diagnosed with chronic and persistent schizophrenia that is extreme in severity.
Schizophrenia is a severe mental illness that typically takes a progressively deteriorating course.
There is no known cure for schizophrenia though symptoms can be managed with currently
available treatments.
2. In the absence of clinical treatment being provided to address Mr. Cole's schizophrenia, then
further decline in his clinical course will continue.
3. Mr. Cole has a documented brain lesion located in the deep white matter ofthe frontal-parietal
region of the left hemisphere of his brain that was discovered by neuroimaging studies in
September 2004. Follow up studies ofthis lesion have not been completed as recommended by
neuroimaging experts. The influence ofthis brain-based defect on Mr. Cole's current mental
state, in combination with his schizophrenic illness is thus unknown. If the lesion is progressive
then there will be greater impact than if it is static.
V: Current Diagnosis: DSM V (i)
295.90 Schizophrenia, Paranoid Type, Continuous, with chronic religiously themed delusions,(along
with severe level negative symptoms)
293.89 Catatonic Features Associated with Schizophrenia: stupor, mutism and negativism
799.59 Unspecified Neurocognitive Disorder (with etiology not yet determined-11 mm brain lesion in the
deep white matter ofthe frontal-parietal region of left hemisphere)
VI: Opinions:
1. Based strictly upon a review of the records and Mr. Cole's voluminous personal books and
records, and from his behavior during evaluation, it is my professional opinion that at present Mr.
Cole is not competent to be executed. There was no affirmative evidence from this evaluation that
Mr. Cole does understand and appreciate that he may again be scheduled for execution or the
reasons why that execution would take place.
2. If any future information should become available about Mr. Cole's response to a treatments)
introduced for his schizophrenia, or about the follow up evaluation and any subsequent response
to treatment that may be recommended for Mr. Cole's brain lesion- then all of these new sources
of clinical information will be duly considered and my opinion at that time will be formulated
based upon the availability and results ofthis new clinical information.
3. This opinion is offered within a reasonable degree of psychological certainty.
VII: Restoration of Competency:
20
APPENDIX A
Exhibit 6
(42a)
The remedies to potentially restore Mr. Cole's capacity for competency will require that the following
treatments be initiated:
1. Mr. Cole's chronic and untreated schizophrenia must be treated.
2. Mr. Cole's brain lesion must be re-evaluated and treated.
3. Mr. Cole's possible clinical responses to such treatments for these conditions are at present
unknown.
4. Without attempting these treatments Mr. Cole's competency for execution will not be restored.
References:
(1) American Psychiatric Association: Diagnostic and Statistical Manual of Mental Disorders, Fifth Edition.
Arlington, VA. American Psychiatric Association, 2013.
VII: Documents Reviewed (Appendix A):
Clemency Information:
1. Pictures of Benjamin Cole
2. Federal Public Defender Clemency Packet
3. Federal Public Defender Supplemental Clemency Packet
Expert Reports:
4. Dr. LaFortune Evaluation 2/28/2003
5. Dr. Christopher Evaluation 7/24/03
6. Dr. Sharp Evaluation 2/17/04
7. Russell Risk Assessment 5/24/04
8. Dr. Basso Evaluation 6/15/04
9. Dr. Monroe Evaluation 8/30/04
10. Dr. Christopher Competency Evaluation 8/18/04
1 1. Dr. Hastings/Powers Radiology Report 2/3/07
12. Dr. Price Competency Evaluation 12/13/07
13. Dr. Morris Report 4/4/09
14. Declaration of Dr. Gur
15. Affidavit of Dr. Hayman 1/16/15
16. Dr. Morris Report 1/21/15
Affidavits:
17. Transcribed Interview of Leonard O'Neal 5/5/04
18. Affidavit of James C. Bowen 1/31/07
19. Affidavit of Timothy Wantland 2/21/07
20. Affidavit of Michael Hooper 2/23/07
21. Affidavit of Anastasia Cesario 2/26/07
22. Affidavit of Barbara Johnson 10/14/08
23. Affidavit of Cherry Peirce 10/17/08
24. Affidavit of Dawn Bettencourt 10/17/08
21
APPENDIX A
Exhibit 6
(43a)
25. Affidavit of Ranada Gentry 11/3/08
26. Affidavit of Suzanne Nelson 5/1/09
27. Affidavit of G. Lynn Burch III 1/13/15
28. Affidavit of Anna Wright 1/13/15
29. Affidavit of Vicki Werneke 1/15/15
30. Affidavit of T. Kenneth Lee 1/16/15
31. Affidavit of Anna Wright 1/29/15
Prison Records:
32. 2004 to 2014 Mental Health excerpts
33. DOC Field Jacket Highlights
34. DOC Medical Records from 5/14 to 9/15
35. DOC Mental Health Records from 6/14 to 9/15
36. OSP Execution Log
Samples of Benjamin Cole's Writings:
37. Letter to Vicki Werneke 2007
38. Letter to Sandra Collette 2007
39. Letter to Candy 2008
40. Letter from Benjamin Cole 6/7/11
41. Letter to Letter to Anna Wright &Sarah Jernigan 9/20/11
42. Letter to Patti Ghezzi 6/12/13
43. Letter to Ken Lee 6/5/13
44. Letter to Tom Hird 4/4/14
45. Letter to Tom Hird 4/14/14
46. Letter to Michael Lieberman 2015
Miscellaneous Items:
47. Mandamus Transcript 8/28/15
48. Box Content 2011
49. ESH records on competency
50. Ford Petition
51. Hobbs Memo on Psych 2006
52. Religious Index
53. 16 standard storage boxes of religious-themed materials(various bibles, books, pamphlets,
tracts, post cards, essays, written notes either by Mr. Cole or written by others to him
VIII: Professional Resources Consulted:
Zaph, P.,(Boccaccini, M.T., Brodsky, S.L.(2003). Assessment of Competency for Execution:
Professional Guidelines and an Evaluation Checklist. Behavioral Sciences and the Law. 21; 103120. Published online 2 July 2002 in Wiley Interscience (www.inyerscience.wilev.co►n). DOI:
10.1002/bsi.491
2. Gilfoyle, N.F.P., Hornberg, R.S., Ogden, D.W., Taranto, R.G. (2007). In the Supreme Court of
the United States. Panetti v. Quarterman Writ of Certiorari to the U.S. Court of Appeals for 5`"
CiNcuit. Brief for Amici Curiae American Psychological Association; American Psychiatric
Association and National Alliance in Support of Petitioner. No. 06-6407
22
APPENDIX A
Exhibit 6
(44a)
3. Melton, G.B., Petrila, J., and Poythress, N.G.(1997). Psychological Evaluationsfor the Courts. A
Handbookfor Mental Health Professionals and Lawyers. 2"d Edition. The Guilford Press. New
York.
4. Seeds, Christopher W."The Afterlife of Ford and Panetti: Execution Competence and the
Capacity to Assist Council".(2009). Cornell Law Faculty Publications. Paper 74.
http://scholarship.law.cornell.eu/facpub/74
5. Small, Mark A. "Performing "Competency to be Executed Evaluations: A Psychological
Analysisfor Preventing the Execution ofthe Insane ". Mark Small. Nebraska Law Review.
(1988). Available at: http://digitalcommons.unl.edu/nlr/vo167/iss3/8
6.
Mello, M.(2007). Execution ofthe Mentally Ill: When is Someone Sane Enough to Die?
Criminal Justice, Volume 22(3). Fall. Published by American Bar Association.
7. Blanks, R. and Pinals, D.(2007).Competence to be Executed. Legal Digest. Volume 35 (3), 381384.
8. American Psychological Association. (2016). Panetti v. Quarterman.
http://www.apa.org/about/offices/ogc/am icus/panetti.aspx
9. Zonana, H.(2003). Analysis and Commentary. Competency to be Executed and Forced
Medication: Singleton v. Norris. The American Academy ofPsychiatry and the Law.31:372-376.
/
~
,ill
23
APPENDIX A
Exhibit 6
(45a)
APPENDIX A
Exhibit 7
(46a)
APPENDIX A
Exhibit 7
(47a)
APPENDIX A
Exhibit 7
(48a)
APPENDIX A
Exhibit 7
(49a)
APPENDIX A
Exhibit 7
(50a)
APPENDIX A
Exhibit 8
(51a)
APPENDIX A
Exhibit 8
(52a)
APPENDIX A
Exhibit 8
(53a)
APPENDIX A
Exhibit 8
(54a)
APPENDIX A
Exhibit 9
(55a)
APPENDIX A
Exhibit 9
(56a)
APPENDIX A
Exhibit 9
(57a)
APPENDIX A
Exhibit 9
(58a)
DECLARATION OF DAVID G. HOUGH ., PH. D., ABPP
Diplomate of the American Board of Professional Psychology
I, Dr. David G. Hough, having the legal capacity to make this declaration, hereby state under
oath as follows:
1. I am currently employed as a clinical psychologist with the Fairview Oregon Veterans
Administration Community Out-Patient Clinic in Fairview, Oregon. In this position I
diagnose and treat military veterans with evidence-based psychotherapies, addressing posttraumatic stress disorder (PTSD) in particular. I have a Ph.D. in Clinical Psychology and am Board
Certified in Clinical Psychology by the American Board of Professional Psychology (ABPP).
2. Prior to this position, I was employed as a clinical psychologist with the Base
Operational Support Team at Keesler US Air Force Base in Biloxi, Mississippi, from July 2021 to
June 2022. Prior to this position at Keesler US Air Force Base, I was employed as a Clinical
Psychologist with the US Air Force Europe (USAFE) at Royal Air Force (RAF) Lakenheath, in the
United Kingdom from June 2016 to July 2021. I was assigned to the Aerospace Medical and
Flight Operations Clinic, where I diagnosed and treated active-duty members.
3. Prior to my position at RAF Lakenheath, I worked as a clinical psychologist in the Embedded
Mental Health Clinic at Ft. Riley, Kansas, and was employed by the Center for Deployment
Psychology (CDP); before transferring to Ft. Riley, I worked as a clinical psychologist in the
Family Health Clinic at Langley Air Force Base, Langley, Virginia.
4. Prior to my employment wit.h the military and V.A. from 2013 to the present, I was selfemployed in the private practice of clinical and forensic psychology since 1990. In this capacity,
I diagnosed and treated patients of all ages and diagnoses, provided individual therapy, couples
and family therapy, as well as psychoanalysis. In my forensic work, I have consulted with both
defense and prosecution teams throughout the United States on primarily criminal cases. I have
conducted extensive psychological evaluations and psychological testing on criminal defendants
in all manner of facilities, from city jails to federal facilities and international venues. I have
provided expert witness testimony in county, state, and federal courts and at the International
Criminal Tribunal - Yugoslavia at The Hague, Netherlands, on a war crimes case. I have
consulted with the U.S. Department of Justice on domestic terrorism cases within the United
States and on a GITMO case. I have consulted with the U.S. Drug Enforcement Administration
(DEA) and served as their Psychological Consultant for the Central United States.
5. I have conducted psychological evaluations and provided expert witness testimony on death
penalty cases since 1995 in Kansas, Missouri, and Oklahoma. I have worked with attorneys on
death penalty cases throughout their representation of their clients. I am familiar with the
procedures on death row at the Oklahoma State Penitentiary (OSP), the housing issues specific
to death row at OSP, and with the unique stressors experienced by prisoners who are
sentenced to death.
1
APPENDIX A
Exhibit 10
Page 1 of 27
(59a)
6. I am currently working with the defense team on Benjamin Cole's case and have done so
since 2016. I have reviewed all available records on the case provided by his current and
previous counsel during the post-conviction process and direct appeal. I have also reviewed
boxes of written material sent to Mr. Cole and have provided a qualitative content analysis of
the main themes contained within these materials, as well as the written materials generated
by Mr. Cole.
I have also attempted to interview Mr. Cole on multiple occasions, wherein he has refused to
leave his cell to speak to me. Typically, the prison has not assisted with Mr. Cole leaving his cell
to speak to me.
7. I am in receipt of a clinical report generated by Dr. Scott Orth, Psy.D., current Director of
Forensic Psychology at the Oklahoma Forensic Center, Vinita, Oklahoma. The report is dated 14
July 2022 and is addressed to The Honorable Judge Gregory Frizzell, Judge of the United States
District Court, Northern District of Oklahoma. I have reviewed this report generated by Dr. Orth
and will hereafter respond with my observations of this report.
8. Dr. Orth's report made no reference to physically documenting his interactions with Mr.
Cole, utilizing audio, or visual aids that would provide an independent record of the encounter
for third-party independent analysis. If such exists, it has not been made available at this point.
The reader is left to rely solely on Dr. Orth's description. The apparent absence of an
independent record forecloses on the opportunity to verify Dr. Orth's report. Moreover, an
evaluation with such high stakes, as in this case, ethically warrants a thorough, independent
and fully transparent evaluation and record of the clinical encounter. As I have reviewed the
professional literature, I am aware that an independent and fully transparent clinical evaluation
is indicated for death penalty competency evaluations and concur with research which supports
this assertion(See, e.g., Radelet ML, and Barnard GW: Ethics and the psychiatric determination
of competency to be executed. Bull Am Acad Psychiatry Law 14:46-47, 1986).
10. Dr. Orth's describes Mr. Cole as being able to interact spontaneously, answer
questions in complete sentences, track and comprehend the flow of the conversation logically
and coherently. This clinical description of Mr. Cole is in radically sharp contrast to Mr. Cole's
relational style, not only with this writer, but also with his current legal team, with Dr. Morris
(evaluating psychiatrist), with current OSP observers (i.e., current Case Manager), and with the
litany of legal teams before his current team. In contrast to this des'cription by Dr. Orth, the
typical experience of other observers and clinical evaluators over the course of years is one
wherein Mr. Cole refuses to come out of his cell to talk and sits in his wheelchair, poorly
groomed, head hung to the side, staring off and being non-responsive to verbal stimuli directed
toward him. Any verbalizations he might offer are rare and heavily laden with religiosity and
convey no meaning to the listener relevant to the matters being discussed. His focus upon
religiously themed material cannot productively be redirected. The writer has discussed this
with past and present legal team members, and it has consistently held true.
2
APPENDIX A
Exhibit 10
Page 2 of 27
(60a)
11. Dr. Orth describes Mr. Cole as essentially well groomed. Moreover, Dr. Orth describes that
he was able to foster a high degree of positive rapport rather quickly with Mr. Cole. These
descriptions present a discontinuity with the historical records among where there are many
descriptions of Mr. Cole as presenting with poor hygiene and with a well-known and chronic
history of non-relatedness.
During the interview Mr. Cole seems to interrupt Dr. Orth's explanation of limitations on
confidentiality in a forensic context by spontaneously answering the two central competency
questions required by the referring judge and the law (See p. 3, 2nd paragraph, under section
Notification of Limits of Confidentiality). Specifically, Dr. Orth reports that when he asked Mr.
Cole about his understanding of the reason for the current evaluation, that Mr. Cole responded
as such: "he spontaneously state[d] ' ... to see if I'm competent and mentally fit to be executed ...
for court and competent here to see if I can go ahead and I guess be executed." Mr. Cole is then
described as spontaneously going on about the pending order of executions coming up, why he
is being executed for his daughter's death, and that he accepts responsibility for his actions.
This type of spontaneous, verbally loquacious, and erudite verbalizations by Mr. Cole have
rarely been observed, and have not been observed in recent times . No effort is made to
reconcile how Dr. Orth was able to accomplish in quick order what other clinicians, despite
repeated attempts, have not, and in particular how he was been able to affect such verbal
spontaneity and (superficially) direct answers so quickly to the two questions that constitute
the heart of the competency to be executed evaluation. Dr. Orth's assertions in this regard are
likewise noted, especially since Mr. Cole was transported to meet with a complete stranger, in a
strange and unfamiliar environment to him. It is obvious to this writer that Mr. Cole was
prepped physically and verbally for this evaluation, yet Dr. Orth makes no reference to this. As
noted under paragraph 8 above, there is no corroborating record available to provide objective
evidence of this reported discussion between Mr. Cole and Dr. Orth.
12. In reviewing the records from OSP (4/15/2010 through 6/17/2022), Dr. Orth selectively cites
records that would ostensibly support his overall assertion that Mr. Cole does not show signs of
mental illness. In fact, there are numerous OSP records indicating serious mental health issues.
Some examples are attached to this declaration. For example, but to cite a few:
03/11/14 Dave Kerby, Ph.D. noted that "Schizophrenia is a possible diagnosis. Disorganized
behavior is suggested by his refusal to eat. Disorganized speech was not apparent today, but a
mild looseness of association was noted in January when he was willing to speak ";
on the same day, 03/11/14, Dr. Kerby also reported that" The mental health level of zero
appears to be incorrect. He had a mental health level of Bat age 39, so his mental health level
at age 48 should not be zero. His mild symptoms of January 2014 suggest a diagnosis of
psychotic disorder. He was not floridly psychotic today; however, his refusal to speak and his
oppositional behavior are consistent with the possibility of paranoid thinking; his conduct could
also indicate the social isolation that is typical of schizophrenia.";
on 03/20/14 Dr. Kerby reports that" while offender could have been slow with sleepiness, the
lack of eye contact and refusal to speak could suggest mental health problems .... Offender
3
APPENDIX A
Exhibit 10
Page 3 of 27
(61a)
currently has no mental health diagnosis, and records are lacking a history of mental illness.
However, his recent change in behavior raises the possibility of a disorder .... A psychiatry
referral at this time seems appropriate."
On 08/29/14 Clinical Coordinator, Patti Stem, notes that "Beginning in January Mr. Cole has
evidenced behavior indicating decompensation. Notes indicate he started out with
conversation laced with religious themes and decreasing communication and eye contact with
clinicians. In March when the meal refusals were reported he initially refused to allow vital
signs to be taken, or to see the QMHP."
I am not aware of Mr. Cole ever having been referred for a formal psychiatry evaluation as was
suggested by the writers of these records.
13. Absent from these records·Dr. Orth selected is any mention of the negative symptoms of
psychosis.
Negative clinical symptoms refer to the peculiar affect, social disconnectedness and other
symptoms that are not as dramatic as flagrant hallucinations known as positive clinical
symptoms of schizophrenia. Mr. Cole's negative symptoms, described in both the historical and
current records, include lengthy periods of voluntary social isolation and withdrawal, choosing
to live completely in the dark for years, extremely poor hygiene, very flattened affect, and noncommunication with staff members for months at a time. Such behaviors, as here mentioned,
exist in the historical records but are afforded no weight by Dr. Orth. Such negative symptoms
are behaviors that are observable, measurable, and in the aggregate, indicative of serious
mental illness (i.e., most typically observed among the regressed and chronic schizophrenic
population or among those with chronic and severe major depression). Affidavits from former
cellmates, for example, have described how Mr. Cole stayed in the dark for an entire year,
incommunicado, and stared blankly at the TV screen without appearing to track the storyline.
Dr. Orth does not address the fact that there is no record of Mr. Cole ever being provided with
a comprehensive psychiatric evaluation by the Department of Corrections to diagnose his
condition. The notes cited by Dr. Orth, especially those describing "non-cooperation" as
indications of an attitude problem ( and thereby inferring not mental illness), and he does not
reconcile his assessment of no mental illness with the longitudinal record from other mental
health professionals both within and without the prison system that Mr. Cole has a severe
mental illness.
14. Dr. Orth reports that while in prison, Mr. Cole's official psychiatric diagnosis according to
the Fourth Edition Diagnostic and Statistical Manual of the American
Psychiatry Association (DSM-IV) has always been "799.9 No Diagnosis." This statement
regarding no diagnosis is factually incorrect. The DSM-IV diagnosis of 799.9 is entitled
"Diagnosis Deferred". If Mr. Cole had been given no diagnosis, the DSM-IV code should have
been V71.09 entitled "No diagnosis or condition on Axis I". Arguably the 799.9 Diagnosis
Deferred implies Mr. Cole clinically exhibited some aspect of mental illness yet to be fully
4
APPENDIX A
Exhibit 10
Page 4 of 27
(62a)
evaluated . As noted above, there is no record of Mr. Cole ever being provided with a
comprehensive J:>sychiatric evaluation by the Department of Corrections to diagnose his
condition.
It should be noted that the DSM-IV is an obsolete and out-of-date diagnostic source that is no
longer a valid source of diagnostic nomenclature and not material to the current evaluation.
The DSM-IV ( published in 1994) has been surpassed by three further revisions. ( DSM-IV-TR
published in 2000; DSM-V, published in May 2013; and DSM-V-TR, published in May 2022).
Each revision incorporates updated psychiatric research and advances to standard clinical
practice. Up to date clinical assessment mandates using the Diagnostic and Statistical Manual VText Revision, referred to as the DSM-VS-TR, published by the American Psychiatric Association
in Washington, DC.
It is important to note that the 799.9 diagnostic code was dropped with the 2013 publication of
the DSM V. It has not been considered a valid diagnostic code since 2013, yet the prison
medical records were not updated with an appropriate diagnosis. Dr. Orth does not address
the use of an obsolete diagnostic code which has been incorrectly used in the historic records
to denote no diagnosis rather than the correct diagnosis deferred. Dr. Orth does not provide a
current diagnosis as would be reasonably expected for a competency evaluation of this nature.
15. It is standard practice for the forensic examiner to supplement their records review and
direct face-to-face interviews with objective, statistically normed, psychological testing.
Psychological testing is usually administered as a comprehensive battery of tests. The purpose
of the testing is to provide evidence-based assessment of the patient's emotional, cognitive,
and relational functioning. Psychological testing can typically elucidate personality features not
discerned by interview or records review alone. In this regard, it is understood that
psychological testing constitutes a recognized standard of practice for forensic evaluation. The
data obtained from the testing is used to augment and reinforce conclusions and opinions
derived from ancillary sources of date (e.g., records review, collateral interviews, and direct
clinical interviews and mental status observations). It is well acknowledged with forensic
evaluations that the psychometric data is more accurate than interview impressions. To
conduct an evaluation without psychological testing is sub-substandard evaluation practice.
If Mr. Cole had been as conversational as described, then follow-up with objective, clinically
normed psychological testing would have been indicated. Mr. Cole was not presented with any
psychological testing in this evaluation.
16. Dr. Orth does not opine anywhere in his report the limitations of his clinical findings . As with
any forensic psychological report, it is expected that the evaluator will acknowledge any
limitations, circumstances, or missing data that could alter or change the reported outcome and
conclusions of the report. For example, Dr. Orth does not acknowledge the limitations inherent
in evaluating Mr. Cole on only one occasion versus, say, a series of interviews which would
strengthen or potentially even refute his conclusions derived from a single evaluation. Dr. Orth
5
APPENDIX A
Exhibit 10
Page 5 of 27
(63a)
does not address any limitations of his report; every forensic evaluation, by definition, will
contain some limitations. Some of them are crucial to assisting the Court to weigh the
credibility of the report.
18. In summary, I have reviewed the work product of Dr. Orth's evaluation with Mr. Cole
and find it flawed on numerous methodological grounds, as here detailed in this declaration.
Such methodological deficits undermine the foundation upon which Dr. Orth's conclusions are
derived. Dr. Orth does not opine as to what degree of psychological certainty he maintains that
the conclusions embedded in his report can be relied upon by the reader. With Dr. Orth' s
report, confidence in these presented conclusions is considered by this writer as significantly
low and should be relied upon, if at all, with a high degree of caution.
Executed on this 29thy day of July 2022 at
9254 SW Chopin Lane
Portland, Oregon 97225
(228) 239-7744
Georgehough4@gmail.com
Kansas License #708
6
APPENDIX A
Exhibit 10
Page 6 of 27
(64a)
Print Note
Page 6 of 15
Oklahoma Department of Corrections
COLE, BENJAMIN
OK DoC Offender ID 489814
4/8/1965 {49) M Caucasian
Oklahoma State Penltentiary
Mental Health Progress Note SOAP - 10/15/14 15:57
~~~jective.. t>~ta: ________~-~------~------~------·----·-·--..--.-.. ----·
Reason for this visit: Follow-up;
Referral source: Follow-up;
Current signs or symptoms and/or responses to treatment:
Offender said that he was doing good and was waiting for his new Bible. Thanks that it was a great Bible and he will be
lessing sleep, with it ariving, he will enjoy it. He talk about passages in the Bible and what they mean. He talk about
Vitamin's and Omega 3 what what it will do for you and how the different ones effect diderant parts of the body and mind.
Comments on Subjective Findings:
Offender was in a good mood and talk freely for about 40 minutes. Offender showed no signs of loose thought process.
Offender remains alert and fully oriented with no evidence of thought disorde or neurological impairment. No auditory,
visual, tactile, or olfactory hallucinations, with no suicide or homicidal ideation. He had working thoughts and able to
express them well.
Objective Data:
Appearance: Appropriate:
Offender obseNed to have poor or declining health? No;
Behavior: Cooperative;
Mood: Normal;
Affect: Within Normal Limits;
Speech: Normal;
ercepti~litfo'~,- - - - - - - - - - - - - , - - - - - - - - - - - - - - - - - - - - - - - - - - t
Thought Process: Organized;
Thought content: Within normal limits:
Suicidal thoughts or behavior: No;
Homicidal thoughts or behavior: No;
Self injury thoughts or behavior: No;
Oriented to person, place, time: Yes;
Concentration intact: Yes;
Memory intact: Yes;
Abstract thinking intact: Yes:
Insight and judgement intact: Yes;
Reliable history and information from Record: Yes;
Reliable history and information from Offender: Yes:
Assessment:
Plan:
Plan:
Offender will contenue to be monitorred and evaluated for changes in behavior.
Follow-up:
·
as needed
Return Visit: 1 month;
Signed Electronically by Bruce White, Psychological Clinician on 10/15/14 16:14
Cosigned Electronically by Patt! Stem, Clinical Coordinator on 10/15/14 16:51 (requested by Bruce White, Psychological
Clinician on 10/15/14 16:14)
The contents of this document are confidential and restricted to authorized personnel of the Oklahoma Department of
Corrections.
https://ehr.docsynergy .com/DocSynergy/CentralMR/NotePrint.asp?PatientUserCode:=11
APPENDIX A
14
Exhibit 10
Page 7 of 27
(65a)
Print Note
Page 7 of 15
Oklahoma Department of Corrections
COLE, BENJAMIN
OK DoC Offender ID 489814
4/8/1965 (49) M Caucasian
Oklahoma State Penitentiary
Mental Health Progress Note SOAP -10/03/14 12:25
.~.~.~jective IJata:.
Reason for this visit: Initial;
Referral source: Medical staff;
Current signs or symptoms and/or responses to treatment:
Offender was seen at his cell door, he had just woken and would not talk, but the Unit Officer help get him talking. He talk
of the bible and the songs from the bible. He told us of the different versis and how they came about. He requested a new
Giant Print Kings James Bible because he can't read the other one.
Comments oh Subjective Findings:
Offender and this QMHP, with the Unit Officer talk for about 30 minutes. His speech was organized, information was
correct, with no sign of a loose thought process. His hair and face hair is not keep, but his property and cell is very clean.
Staff stated that he doesn't talk to everyone, but people he chooses to, he has trouble comunicating with or voicing himself
or his needs. He was very calm and talk frendly and respectfully. A bible will be found if posible. There was no observation
that would indicate evedence of severe mental illness, he was alert and oriented to person, place, time, and situation.
Objective Data:
Appearance: Appropriate;
Offender obseNed to have poor or declining health? No;
Behavior: Calm; Cooperative;
Mood: Normal;
Affect: Within Normal Limits;
----~peeew.-NeFmaf,;-Se~;'---------------------~----------------Perception: No Abnormalities;
Thought Process: Organized;
Thought content: Within normal limits;
Suicidal thoughts or behavior: No;
Homicidal thoughts or behavior: No;
Self injury thoughts or behavior: No;
Oriented to person, place, time: Yes;
Concentration intact: Yes;
Memory intact: Yes;
Abstract thinking intact: Yes;
Insight and judgement intact:. Yes;
Reliable history and infonnation from Record: Yes;
Reliable history and infonnation from Offender: Yes;
Assessment:
Plan:
Plan:
Offender will contenue to be monitored and evaluated for changes in behavior.
Follow-up:
as needed
Retum Visit: 1 month;
Signed Electronically by Bruce White, Psychological Cliniciari on 10/03/14 12:47
Cosigned Electronically by Janna Morgan, Chief Mental Health Officer, PhD on 10/03/14 14:47 (requested by Patti Stem,
Clinical Coordinator on 10/03/14 14:40)
Cosigned Electronically by Patti Stem, Clinical Coordinator on 10/03/14 14:39 (requested by Bruce White, Psychological
Clinician on 10/03/14 12:47)
The contents of this document are confidential and restricted to authorized personnel of the Oklahoma Depa,tment of
Corrections.
https://ehr.docsynergy .com/DocSynergy/CentralMR/NotePrint.asp?PatientUserCode=11
APPENDIX A
14
Exhibit 10
Page 8 of 27
(66a)
Print Note
Page 10 of 15
Oklahoma Department of Corrections
COLE, BENJAMIN
OK DoC orrender ID 489814
4/8/1965 (49) M Caucasian
Oklahoma State Penitentiary
Mental Health or Mental Status Review (Late Entry) - 08/29/14 12:07
Assessment:
•• ,.,
... ··
..
: . - .. , •--• ·-·
·•··--·
_ ... ·· ·-••---••-···· -.-
• -- ··. ,·
·.·--.-.-,-.·
.-.. ,. .. ,,:- ,_,...,._,.., ..... _ ~ u ..... ,,.•,'\.Y•a..1~1;....,.~.•r.·-.>\1.\~1•""""'"'-·~-·••
Purpose of Review: Death row;
Offender cell, clothing, or body unkempt or unclean: NA;
Offender Incoherent, bizarre, or 1musual/y disorganized In speech or behavior: NA;
Offender disoriented to time, place or person: NA;
Offender demonstrate deficits In memo,y: NA;
Offender present any psychotic features: Low;
Offender appears sad or depressed: NA;
Offender displays symptoms of anxiety: NA;
Offender angry, hostl/e or threatening: Low;
Offender voice displays violent tendencies: NA;
Offender shows signs of euphoric or expansive mood: NA;
Offender reports or observation of suicidal Ideation or behavior: No;
Offender observed In poor or declining health: No;
Comments: Offender Cole has been on the medical concern list since March, 2014 when it was reported he was refusing
meals (according to him for religious reasons). (That is no longer the case. No recent incident reports of refused meals have
been received). Prior to the first of this year the EHR lists no MH concerns either- reported or observed. Beginning In
January Mr. Cole has evidenced behavior Indicating decompensatlon. Notes Indicate he started out with conversations
laced with religious themes, and decreasing communication and eye contact with clinicians. In March when the meal
· ed and
placed on double portions. He is on the concern list, meaning he ls observed each shift by a lieutenant daily and a report
sent to this writer each time. His vitals are checked bl-weekly and he is seen by MH monthly. Al the current time he refused
to engage with this clinician. It was difficult to determine whether he was asleep or feigning sleep. Officers note that he
rarely speaks, but wlll communicate with them with yes or no answers throughout the dally routines of feeding, showers, etc.
He has refused to see the psychiatrist on two occasions. He also refused to see the psychologist sent on 7/30/14 through
his attorney to do an independent evaluallon; In spite of encouraging from this writer and the warden to come out. He will
continue to be closely monitored.
Signed Electronically by Patti Stem, Cllnlcal Coordinator on 09/18/14 13:06
The contents of this document are confidential and restricted to authorized personnel of the Oklahoma Department of
Corrections.
https://ehr.docsynergy .com/DocSynergy/CentralMR/NotePrint.asp?PatientUserCode=l 12... 12/18/2014
APPENDIX A
Exhibit 10
Page 9 of 27
(67a)
·- ------ --------- -------- -----------------------Pl'intNote
Page 13 of 15
Oklahoma Department of Corrections
COLE, BENJAMIN
OK DoC Offender ID 489814
4/8/1965 (49) M Caucasian
Oklahoma State Penitentiary
Mental Health or Mental Status Review- 07/30/14 09:15
Assessment:
Purpose of Review: Death row;
Offender cell, clothing, or body un/cempt or unclean: NA;
Offender incoherent, bizarre, or unusually disorganized in speech or behavior: NA;
Offender disoriented to lime, place or person: NA;
Offender demonstrate deficits in memory: NA;
Offender present any psychotic features: NA;
Offender appears sad or depressed: NA;
Offender displays symptoms of anxiety: Moderate;
Offender angry, hostile or threatening: NA;
Offender voice displays violent tendencies: NA;
Offender shows signs of euphoric or expansive mood: NA;
Offender reports or observation of suicidal ideation or behavior: No;
Offender observed In poor or declining health: No;
.
Commonts: Went to cell door accompanied by Warden Trammell to inform Mr. Cole about upcoming evaluatlon by outside
psychologist. Mr. Cole Initially did not respond, but came to the door when the Warden made her presence known. He
removed head covering when asked. When he was being lnfonned about lhe evaluation he abruptly turned, waved this
clinician away, and lay down on his bunk, turned his head away and refused to acknowledge or respond to any further
questions or requests. This has been his typical response of late to any mental health contact. Of note, In spite of 3
documented tries Mr. Cole did refuse to come out to s eak to the outside s cholo isl. Will return·Mr. Cole to the offender
concern list or daily observation y security staff, and M will continue to follow up per po Icy
Signed Electronically by Patti Stem, Clinical Coordinator on 08/05/1414:21
The contents of this document are confident/al and restricted to authorized personnel of the Oklahoma Department of
Corrections.
https://elll.'.docsynergy .com/.DocSynergy/CentrnllvfR/NotePrint.asp?PalientUserCode=l l 2... 12/18/2014
APPENDIX A
Exhibit 10
Page 10 of 27
(68a)
- - - - - - - - - - - - - - - - - ----- ---~~----
OKLAHOMA DEPARTMENT OF CORRECTIONS
WAIVER OF TREATMENT/EVALUATION
o_.J_f'_________ Date s::: l• /,_>:
Faclllti_ _ _ _
Tlme_ _ _c_/;...,,....~_?
____
I certify that I am refusing to submit to treatment at my own Insistence and against the advice of the health care
provider,
1.
I have been advised that It Is necessary for me to undergo the following treatment/evaluation:,_ _ _ _ __
We. ,1
I
<i.c
2.
TreatmenVevaluaUon being refused was to be provided to me by:_ _ _ _/
__
(11_/L
__/t_t_.\.________
(Facfllty Name and/or Provider)
3.
I have been Informed by a qualified healthcare professional of the risks attendant to my refusal. These Include:
4.
I asSUl'l:\13 full responslblllty for any results caused by my decision and I hereby release the instltuUon, its
employees, officers, and the provider from all legal responslblllty and llablllty..
5.
1certify tfiaT I am or sound mind and have ~ead, or fflffi7'lml to me, am:I"latly'"tlr!tl?:fl'SOOfcNlnr.fl:iow-intarm-athJn
· concemlng my refusal to accept treatmenVevaluaflon and have had an opportunity to ask questions before I affix
my signature.
Ofrendergnature
S:-'?-1~ .
Date
'11 the offender refuses to sign such a statement, he/she cannot be forced to do so legally nor niay release be withheld untU
the offender signs. If this occurs, the form should be filled oul, witnessed by two faclllly personnel and the statement
documented on the form, "SIGNATURE REFUSED."
.
Offender's Name
I
DOC 1401170 (R 1/10)
APPENDIX A
Exhibit 10
Page 11 of 27
(69a)
Print Note
Page 3 of 30
Oklahoma Department of Corrections
COLE, BENJAMIN
OK Doc Offender ID 489814
4/8/1965 (49) M Caucasian
Oklahoma State Penitentiary
Mental Health Progress Note NARRATIVE - 05106114 12:20
Progress Note:
.
Note:
REFUSED TO SEE ME
----·-----
Signed Electronically by James Howard, MD on 05/06/1412:21
The contents of this document a,v confidential and mstricted to authorized personnel of the Oklahoma Department of
Corrections.
https://ehr.docsynergy .com/DocSynergy/CentralMR/NotePrint.asp?PatientUserCode= 1125 ... 6/25/2014
APPENDIX A
Exhibit 10
Page 12 of 27
(70a)
Print Note
Page 4 of30
Oklahoma Department of Corrections
COLE, BENJAMIN
OK DoC Offender ID 489814
4/8/1965 (49) M Caucasian
Oklahoma State Penitentiary
Mental Health Progress Note NARRATIVE - 05/01/14 20:32
Progress Note: ···------·---------------··-----·------------------Note:
REFUSED TO SEE ME
Signed Electronically by James Howard, MD on 05/01/14 20:33
The contents of this document are confidential and restricted to authorized personnel of the Oklahoma Department of
Corrections.
https://ehr.docsynergy .com/DocSynergy/CentralMR/NotePrint.asp?PatientUserCode=1125... 6/25/2014
APPENDIX A
Exhibit 10
Page 13 of 27
(71a)
Print Note
Page 8 of 30
Oklahoma Department of Corrections
COLE, BENJAMIN
OK DoC Offender ID 489814
4/8/1965 (49) M Caucasian
Oklahoma State Penitentiary
Mental Health or Mental Status Review- 04122/1413:30
Assessment:
Purpose of Review:
Re-evaluation
Offender cell, clothing, or body unkempt or unclean:
NA
Offender reports or observation of suicidal Ideation or behavior:
No
Comments:
(Late entry). Offender refused to come to door to speak on rounds today. He turned his back, peed In the toilet, and
flushed.
Signed Electronically by Dave Kerby, PhD on 04/22/1415:50
The contents of this document are confidential and restrtcted to authorized personnel of the Oklahoma Department of
Corrections.
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APPENDIX A
Exhibit 10
Page 14 of 27
(72a)
. OKLAHOMA DEPARTMENT OF CORRECTIONS
WAJVE~ OF TREATMENT/EVALUATION
Time___/--'"'?,:...'?"-"-)_ _ __
. Facility OKLAHOMA STATE PENITENTIARY
I certify that I am refusing to submit to treatment at my own lnslst'8nce and against the advice of the health care
provider.
1.
I have been advised -that nIs necessary for me to undergo the followlng treatment/evaluatlon:_ _ _ _ __
/.J e,;;L.,_
e-i,
11L aJ, ,. .._
2.
Treatment/evaluation being refused was to be provided to me by:
3.
I have bear] Informed by a quallfled healthcare professlonal of the risks attendant to !11Y refusal. These Include:
PAIN, INFECTION or DEATH.
/,,<; ,f'-J
I
~ ..... ,
7
OKlAHOMA STATE PENITENIJARYPENJAL
(Faclllfy Name and/or Provl~er)
\ ,I.
c....._ L J
u \:
4.
I assume tun responsibility for any results caused by my decision and ·1 hereby release lhe Institution, ifs
employees, officers, and the provider from aff legal responsibility and llablllty.
5.
I certify that. I am of sound mind and have read. or hac! read to me, and fully understand the above lnfonnallon
concemlng my refusal to accept treatment/evaluaUon and fiave had an opportunity to ask questions before.I affix
my signature.
.
.
Date
If the offender refuset, to slg11 such a llt~t~ment, he/she cannot be forced to do so legally nor may release b8Mllthheld.untf1 .__ •
the offender: signs. If this o~rs, the fo,m should be filled out, witnessed by two facllity personnel and the slatement
documenlsd on the fo,m,
REFUSED."
. "SIGNATURE
.
I'l:Wa..,_;z..C9leOffender's Name
•
j
DOC 140117D CR 1/10)
APPENDIX A
Exhibit 10
Page 15 of 27
(73a)
Print Note
Page 7 of 30
Oklahoma Department of Corrections
COLE, BENJAMIN
OK Doc Offender ID 489814
4/8/1965 (49) M Caucasian
Oklahoma State Penitentiary
refused visit- 04/22/1413:54
Subjective Data:
Chief Complaint:
·------------------·- - - -
refused visit, waiver signed.
Objective Data:
Assessment:
Plan:
Co-Payment Assignment (Select procedures - office clinic visit and/or medlcatlon(s) for co-payment)
J
Encounter: Medical Progress Note- SOAP
Date/Time of Service: 04/22/1413:54
Location of Service: Oklahoma State Penitentiary
[_
Provider: __~~hn Marlar, DO Authorizing Provider: John Marlar, D~
Signed Electronically by John Marlar, DO on 04/22/1413:55
The contents of this document are confidential and restricted to authorized personnel of the Oklahoma Department of
Cof18Cflons.
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APPENDIX A
Exhibit 10
Page 16 of 27
(74a)
Print Note
Page 9 of 30
Oklahoma Department of Corrections
COLE, BENJAMIN
OK Doc Offender ID 489814
4/8/1965 (49) M Caucasian
Oklahoma State Penitentiary
Mental Health or Mental Status Review: Medical Observation List- 04/18/1419:45
Assessment:
Purpose of Review:
other Medical Observation List
Offender cell, clothing, or body unkempt or unclean:
NA
Offender reports or observation of suicidal Ideation or behavior:
No
Comments:
Offender would not respond to this clinician. Officers report that he seldom talks to anyone, but he does speak to some
officers to the extent of answering yes-no questions, such as "Do you want a tray?"
·
Signed Electronically by Dave Kerby, PhD on 04/18/14 20:02
The contents of this document are confidential and restricted to authorized personnel of the Oklahoma Department of
Corrections.
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APPENDIX A
Exhibit 10
Page 17 of 27
(75a)
Print Note
Page 12 of 30
Oklahoma Department of Corrections
COLE, BENJAMIN
OK DoC Offender ID 489814
4/8/1965 (49) M Caucasian
Oklahoma State Penitentiary
Mental Health or Mental Status Review- 04/03/14 09:00
Assessment:
Purpose of Review:
Re-evaluation
Offender cell, clothing, or body unkempt or unclean:
NA
Offender appears sad or depressed:
NA
Offender voice displays violent tendencies:
NA
Offender shows signs of euphoric or expansive mood:
NA
Offender reports or obse,vatlon of suicidal Ideation or behavior:
No
Comments:
Offender was seen at his cell on the unit. Whlle this clinlclan knocked at the door and repeatedly asked him to speak, the
offender arranged neatly stacked papers, turned his back and peed, flushed the toilet, and arranged papers again. All this
time he never even glanced or gestured an acknowledgement of this clinician's presence.
Signed Electronically by Dave Kerby, PhD on 04/03114 09:50
Cosigned Electronically by Patti Stem, Clinical Coordinator on 04/03/1415:32 (requested by Dave Kerby, PhD on 04/03/14
09:51)
The contents of this document are confidential and restricted to authorized personnel of the Oklahoma Department of
Corrections.
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APPENDIX A
Exhibit 10
Page 18 of 27
(76a)
Print Note
Page 11 of 30
Oklahoma Department of Corrections
COLE, BENJAMIN
OK Doc Offender ID 489814
4/8/1965 (49) M Caucasian
Oklahoma State Penitentiary
Mental Health Progress Note NARRATIVE - 04/03/14 20:05
_!_!ogress Note:
Note:
REFUSED TO SEE ME.
---------·
Signed Electronically by James Howard, MD on 04/03114 20:05
The contents of this document are confidential and restricted to authorized personnel of the Oklahoma Department of
Corrections.
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APPENDIX A
Exhibit 10
Page 19 of 27
(77a)
OKLAHOMA DEPARTMENT OF CORRECTIONS
WAIVER OF TREATMENT/EVALUATION
·OJ I:
Oat~ _J ,·2;}/}( Time
7 /c.):/J
--------'--------..
------------
Facility
I certify that I am refusing to submit to treatment at my own Insistence and against the advice of the health care
p'rovlder.
1.
I have been advised that It Is necessary for me lo undergo the following treatmenVevaluatlon:._ _ _ _ __
cl,,!-( <-,?~,·lo),
-
2.
TreatmenVevaluatlon being refused was to be provided to me by:_ _
~/4--a~·---~--...,...-'(FacHlly1Name and/or Pt'ovld~r)
3.
1
I have been Informed by a qualified healthcare professional of the risks attendant to my refusal. These Include:
/2,;I
4.
I ass~me full responslbUlly for any· results caused by my de~lslon and I hereby release the Institution, Its
employees, officers, and the provider fr~m all legal responslblllty and llabRlty,
5.
I certify that I am of sound mind and have read, or had read to me, and fully understand the above fnfonnatlon
concerning my refusal to accept treatment/evaluatlon and have had an opportunity to ask quesUons before I affix
· my signature.
~;O\.~::. Cal.
Offender Signature
<-e.. · Y-~7-Date
Ii
Date
- ..
If the offender refuses "to sign such a statement, he/she cannot be forced to do so legaRy nor may release be withheld until
the offender signs. If this occurs, the form should be filled out, witnessed by two facility personnel and the statement
documented on the forrp, "SIGNATURE REFUSED."
DOC 140117D (R 1/10)
APPENDIX A
Exhibit 10
Page 20 of 27
(78a)
Print Note
Page 15 of 30
Oklahoma Department of Corrections
COLE, BENJAMIN
OK DoC Offender ID 489814
4/8/1965 (49) M Caucasian
Oklahoma State Penitentiary
Mental Health NARRATIVE: Referral to Psychiatrist· 03/20/14 16:26
_J>rogress Note.:___
---------------·--·--------------·
Note:
Offender Cole has shown lncreaslngly poor eye contact, social withdrawal, refusal to cooperate with medical staff, and
refusal to eat. A psychiatry referral at this time seems appropriate.
Signed Electronlcally by Dave Kerby, PhD on 03/20/14 16:29
Cosigned Electronically by Rose Gwin, LPN, LPN on 03/25/1410:42 (requested by Dave Kerby, PhD on 03/20/1416:29)
Cosigned Electronically by Patti Stem, Clinical Coordinator on 03/20/1417:10 (requested by Dave Kerby, PhD on 03/20/14
16:29)
The contents of this document are confidential and restricted to authorized personnel of the Oklahoma Depertment of
Corrections.
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APPENDIX A
Exhibit 10
Page 21 of 27
(79a)
Print Note
Page 16 of 30
Oklahoma Department of Corrections
COLE, BENJAMIN
OK DoC Offender ID 489814
4/8/1965 (49) M Caucasian
Oklahoma State Penitentiary
Mental Health Progress Note SOAP -03/20/1415:38
Subjective Data:
Reason for this visit: Follow-up;
Referral source: Medical staff;
Chief Complaint:
Other:
Offender refuses to be weighed.
Current signs or symptoms and/or responses to treatment:
Offender was approach at his cell door on the unit. He did not respond from his bed when this cllnlclan knocked at the
door. When a guard came by doing checks and shone a light In the cell, offender rose from the bed and walked to the door.
His gait was stiff, and his steps small. His head was down, and his eyes were never raised for eye contact. He stood
mutely at the door for about fifteen to twenty seconds, while this cllnlclan spoke to him. He never replied, but tumed slowly
away. With the same stiff gait he went to the toilet and urinated, flushed, then he heavily lay down to bed again.
Comments on Subjective Findings:
While offender could have been slow with sleepiness, the lack of eye contact and the refusal to speak could suggest
mental health problems. This cllnlclan saw the offender on 3/11/14, and though he was socially withdrawn, he did not show
motor retardation then, and he also spoke.
Objective Data:
Appearance: Bizarre;
Behavior. Other; Distant, withdrawn
Speech: Other; Mute
Perception: Other; Cannot be check due to no speech
Thought Process: Other; Cannot be checked due to no speech
Thought content: Other; Cannot be checked due to no speech
Suicidal thoughts or behavior: No;
Homicidal thoughts or behavior: No;
Self injury thoughts or behavior. No;
Assessment:
Comments on Diagnosis:
Offender currently has no mental health diagnosis, and records are lacking a history of mental illness. However, his recent
change In behavior raises the possiblilty of a disorder.
Plan:
--------------------
Plan:
Continue to attempt to assess.
Signed Electronlcally by Dave Kerby, PhD on 03/20/14 15:53
Cosigned Electronically by Pat Sorrels, CHSA on 03/21/14 10:23 (requested by Patti Stem, Clinical Coordinator on 03/20/14
15:59)
Cosigned Electronically by Chris Kampas, RN on 03/22/14 13:09 (requested by Patti Stem, Clinical Coordinator on 03/20/14
15:59)
Cosigned Electronically by John Marlar, DO on 03/27/1415:20 (requested by Patti Stem, Cllnlcal Coordinator on 03/20/14
15:59)
Cosigned Electronically by Patti Stem, Clinical Coordinator on 03/20/1415:58 (requested by Dave Kerby, PhD on 03/20/14
15:53)
The contents of this document are confldential and restricted to authorized personnel of the Oklahoma Department of
Corrections.
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APPENDIX A
Exhibit 10
Page 22 of 27
(80a)
Print Note
Page 21 of 30
Oklahoma Department of Corrections
COLE, BENJAMIN
OK Doc Offender ID 489814
4/8/1965 (49) M Caucasian
Oklahoma State Penitentiary
Mental Health SOAP: Addendum - 03/11/1415:46 [Addendum}
Subjective Data:
Objective Data:
Suicidal thoughts or behavior: No;
Homicidal thoughts or behavior: No;
Self injury thoughts or behavior: No;
Assessment:
Comments on Diagnosis:
Offender has been a mental health level zero and has had no mental health diagnosis. \Mille the level zero appears to
have been an error, reliable records do not exist regarding past mental illness.
Schizophrenia Is a posslblle diagnosis. Disorganized behavior is suggested by his refusal to eat. Disorganized speech was
not apparent today, but a mild looseness of association was noted In January when he was willing to speak. IMlile no dear
evidence of delusions are present, he may have some unexpressed beliefs that have led him to refuse food and to refuse
to Interact with staff. There was a clear absence of negative symptoms and of abnormal motor movements.
Plan:
Plan:
Offender will be monitored during rounds for symptoms to clarify the diagnostic picture, as he has been willing in the past to
talk during rounds on the unit. He also needs to be monitored regarding his food Intake.
Signed Electronically by Dave Kerby, PhD on 03/11/1416:18
Cosigned Electronically by Patti Stem, Cllnlcal Coordinator on 03/11/14 18:47 (requested by Dave Kerby, PhD on 03/11/14
16:18)
The contents of this document are confidential and restricted to authorized personnel of the Oklahoma Department of
Corrections.
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APPENDIX A
Exhibit 10
Page 23 of 27
(81a)
Print Note
Page 20 of 30
Oklahoma Department of Corrections
COLE, BENJAMIN
OK DoC Offender ID 489814
4/8/1965 (49) M Caucasian
Oklahoma State Penitentiary
Mental Health SOAP: Mental health level B - 03/11/1410:15
Subjective Data:
--------------------------------------
Reason for this visit: Follow-up;
Chief Complaint:
Other:
Assess mental status and physical status
Current signs or symptoms and/or responses to treatment:
Offender Is a 48-yr-old white male with a mental health level of zero. Desiplte this mental health level, offender during
rounds in Jan 2014 showed minor symptoms of mental illness: poor eye contact, mlld looseness of association in his
speech, and some unusual religious content. In addition, a document dated 27 Dec 2004 when the offender was 39 years
old and scanned into the EHR on 12 Sep 2011 contains information about mental health level. The document was signed
by Ann Boyd, PhD, who gave the offender a mental health level of B.
Offender was seen today with Dr. Marlar in the medical room on H unit. When offender came to the door, he shook his
head and said "I refuse." He repeatedly refused to participate, and steadily walked toward the door. He would not step on
the scales to be weighed. He finally consented to sign a document that he refused all treatment.
His affect was not angry or irritable. Despite his oppositional conduct, his mood was in the normal range; indeed, he
seemed in a good mood. His speech was too limited to obtain much impression. He mostly said simple phrases such as "I
refuse" and "I'm not talking to you guys." His one statement of more than a few words referred to the meals here as "pig
food", and he said that he should be receiving kosher food.
He signed a medical refusal form, showing no problems with muscle control. His gait appeared normal. There was no
evidence of breathing difficulties, and his skin tone was In the normal range. Orientation and memory could not be fully
gauged, due to lack of cooperation, but he showed no obvious deficits.
Comments on Subjective Findings:
The mental health level of zero appears to be incorrect. He had a mental health level of B at age 39, so his mental health
level at age 48 should not be zero. His mlld symptoms of January 2014 suggest a diagnosis of a psychotic disorder. He
was not floridly psychotic today; however, his refusal to speak and his oppositional behavior are consistent with the
possibility of paranoid thinking; his conduct could also indicate the social isolation that is typical of schizophrenia. He was
not obviously psychotic today, but his mental status should continue to be monitored.
Data:
-Objective
-=---------Behavior: Other; uncooperative
Mood: Normal;
Affect: Within Normal Limits;
Speech: Other; Limited speech due to refusal to cooperate
Perception: No Abnormalities;
Thought Process: Other; Difficult to assess due to lack of cooperation
Thought content: Other: Lack of cooperation could suggest the possibility of paranoid thinking
Suicidal thoughts or behavior: No;
Homicidal thoughts or behavior: No;
Self injury thoughts or behavior: No;
Assessment:
Plan:
Signed Electronically by Dave Kerby, PhD on 03/11/1411:14
Cosigned Electronically by Janna Morgan, Chief Mental Health Officer, PhD on 03/11/1415:29 (requested by Patti Stem,
Clinical Coordinator on 03/11 /14 11 :22)
Cosigned Electronically by Pat Sorrels, CHSA on 03/21/1410:23 (requested by Patti Stem, Clinical Coordinator on 03/20/14
16:14)
Cosigned Electronically by Patti Stem, Clinical Coordinator on 03/11/1411:21 (requested by Dave Kerby, PhD on 03/11/14
11 :14)
The contents of this document are confidential and restricted to authorized personnel of the Oklahoma Department of
Corrections.
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APPENDIX A
Exhibit 10
Page 24 of 27
(82a)
Print Note
Page 25 of30
Oklahoma Department of Corrections
COLE, BENJAMIN
OK DoC Offender ID 489814
4/8/1965 (49) M Caucasian
Oklahoma State Penitentiary
Mental Health or Mental Status Review - 01/29/1411:00
Assea&ment:
-·------------------------------
Purpose of Review:
Re-evaluation
Offender cell, clothing, or body unkempt or unclean:
NA
Offender incoherent, bizarre, or unusually disorganized In speech or behavior:
NA
Offender disoriented to time, place or person:
NA
Offender demonstrate deficits In memory:
NA
Offender present any psychotic features:
NA
Offender appears sad or depressed:
NA
Offender displays symptoms of anxiety:
NA
Offender angry, hostile or threatening:
NA
Offender voice displays violent tendencies:
NA
Offender shows signs of euphoric or expansive mood:
NA
Offender reports or observation of suicidal Ideation or behavior:
No
Comments:
Mental health level zero. Offender came to the cell door and spoke at some length. His eye contact was poor, as he had
his face up to the door and never looked at this cllnlclan. His speech was coherent, though there was a suggestion of a
slight looseness of association. He mentioned some religious themes: for example, ''The day of the Lord Is at hand."
He had noticable bad breath, and he seemed aware of It. He asked for an Indigent sack, so that he could have a
toothbrush and toothpaste for oral hygiene. He mentioned several times his desire for better oral hygiene. (Follow-up with
case manager indicates that he Is not on the Indigent 11st).
Signed Electronically by Dave Kerby, PhD on 01/29/1414:38
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Corrections.
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APPENDIX A
Exhibit 10
Page 25 of 27
(83a)
OKLAHOMA DEPARTMENT OF CORRECTIONS
WAIVER OF TREATMENT/EVALUATION
Faclllty
().S/'
Date
//..,2 7- I J
Time
/.2 ;., r
I certify that I am refusing to submit to treatment at my own Insistence and against the advice of the health care · .
p'rovlder.
1.
I ha\te been advised that It Is necessary for me to undergo the following treatment/evaluatlon:._·_ _ _ _ __
7-ru!M~ /4,.JJ/tf _
2.
TreatmenUevaluetlon being refused was to be provided to me by:_ _---::=-~--::-:-:-/J-,-"\..,--("\_.......,.,,.......,=-:-.,...,.......,.,..-(Faclllty Name end/or Provtd~r)'
3.
I have been Informed by a quallfled healthcare professional of the rfsks attendant to my refusal. These Include:
4.
I assume full responsibility for any 'results caused by my decision and I hereby release the Institution, Its
employees, officers, and the provider from all legal responslblllly and llablllly.
5.
I certify that I am of sound mind and ha\'.e read, or had read to me, and fully understand the above Information
concerning my refusal to accept treatment/evaluation and have had an opportunity to ask questions before I affix
· my signature.
. '71 ,./-:"
A
/_,1/
'//?
Date
Date
Date
- ..
If the offender refuses ·to sign such a statement, he/she cannot be forced to do so legally nor may release be withheld until
the offender signs. If this occurs, the form should be filled out, witnessed by two facility personnel and the statement
documented on the ton:n, "SIGNATURE REFUSED.••
I
I h_
DOC NO.
OlfenOef's Name
Cb
'(,r )1r I '{
DOC 1401170 (R 1/10)
APPENDIX A
Exhibit 10
Page 26 of 27
(84a)
Print Note
Page 27 of 30
Oklahoma Department of Corrections
COLE, BENJAMIN
OK Doc Offender ID 489814
4/8/1965 (49) M Caucasian
Oklahoma State Penitentiary
wellness check -11/26/13 22:30
Progress Note:
Progress Note:
officer K Hughes asked for offender to be evaluated during med pass. offender refused to come to cell door for evaluation . .
officer hughes stated earlier in the day offender had been helped to shower and offender appeared to be very thin and
weak. offender has not stated a hunger strike but appears to not be eating an adequate amount of food at this time. Dr.
Marlar will be notified.
I
Encounter: SIMPLE Narrative Note
e/Time of Service: 11/26/13 22:30
ocation of Service: Oklahoma State Penitentiary
Provider: Bill Savage, RN Authorizing Provider: Bill Savage, RN 1
Signed ElectronlcaUy by BIii Savage, RN on 11/26/13 22:37
Cosigned Electronically by John Marlar, DO on 11/27/13 11 :04 (requested by Bill Savage, RN on 11/26/13 22:37)
The contents of this document are confidential and restricted to authorized personnel of the Oklahoma Department of
Corrections.
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APPENDIX A
Exhibit 10
Page 27 of 27
(85a)
AFFIDAVIT OF LINDA ANNE HAYMAN, M.D.
STATE OF TEXAS
)
ss.
COUNTY OF HARRIS
I, Linda Anne 1—layman, M.D., state as follows:
I. I am a Board certi fled Radiology specialist with additional years oCsubspecialty
training in Neuroradiology. I have been licensed to practice in (lie State ofTexas since 1973.
2. I am currently the medical director oCAnatom-e which makes software for analysis
ofthe brain anatomy and function. This company is headquartered at 7505 Fannin, Suite 426,
Houston Texas 77030. A copy olrny resume is attached hereto.
3. All olmy experience and practice has specifically involved the review and analysis
of radiological scans of the brain/spine and assessment of neurological damage and injury
to the brain/spine. My experience in assessing neurological brain damage is inclusive of
deterniining the physiological and behavioral effects of damage to the various regions of the
brain. From 1996-2003 1 held the position olajoint tenured professorship in the Departments
of Radiology and Psychiatry and Behavioral Sciences at Baylor College of Medicine in
Houston, Texas. I taught brain [‘unction at the Medical School during those years. In addition
I am the author of “Clinical Brain Imaging; Normal Structure and Functional Anatomy,”
which is a 449 page authoritative textbook on brain imaging and function. In 2002, my
imaging laboratory published the lead article in the preeminent international journal,
Radiology. The article described the imaging correlates of brain damage to the frontal lobe.
4. At the request ofthe Office ofthe Federal Public Defender for the Western District
of Oklahoma, I have conducted a review of the following materials and records pertaining
to death row inmate Benjamin Cole:
a)
b)
c)
d)
e)
1)
g)
h)
MRI of brain 9-22-04;
Report of Matthew Powers, M.D., radiologist;
Report of John D. Hastings, Neurologist;
Declaration of Ruben C. Gur, Ph.D., neuropsychologist;
Report/Consultation of Raphael Morris, M.D., psychiatrist;
Affidavit of Cherry Peirce;
Samples of correspondence written by from January, 2006 and December,
2014;
Oklahoma Department of Corrections medical records 2014; and.
APPENDIX A
Exhibit 11
(86a)
I)
Memorandum and affidavit memorializing the defense team’s elTon to
communicate with Mr. Cole January 8,2015.
5. Based on my review of the enumerated records and my analysis othe images of
Mr. Cole’s brain, it is my professional opinion that in all medical probability Mr. Cole has
progressive structural and biochemical abnormalities that severely impair his ability to
interact appropriately with his surroundings. My training and expertise applies to the
structural lesion which is seen Mr. Cole’s MR images in his left globus pallidus. This
structure is part of the basal ganglia which is a relay station in the pathway connecting the
left frontal lobe with the anterior thalamus. Disruption of this pathway could produce the
frontal lobe symptoms described by Dr. Gur. The schizophrenia which is also present in Mr.
Cole’s medical history is a biochemical imbalance which has associations with inherited
defects and chaotic family conditions. All of these predisposing conditions are present in Mr.
Cole’s medical records.
6. The synergistic effects of Mr. Cole’s schizophrenia and the left basal ganglia lesion
are supported by the predominance of his “negative symptoms,” which have been related
specifically to abnormalities in the left globus pallidus. [Proc. Nati. Acad. Sci. USA Vol. 84,
pp. 561-563, January 1987 Medical Sciences]. The term “negative symptoms” refers to an
absence of behaviors or feelings that are usually present. Negative symptoms may be noted
as inexpressive faces, blank looks, monotone and monosyllabic speech, few gestures, a
seeming lack of interest in the world and other people, and an inability to feel pleasure or act
spontaneously. The two medical conditions associated with negative symptoms are Alogia
and A volition. Alogia is a condition affecting thought and speech. A person experiencing
alogia will have difficulty thinking clearly. The person’s speech will be reduced because the
person will have difficulty speaking with others. Sometimes, the person’s speech will be
reduced to short answers. Avolition is when a person doesn’t feel like doing anything at all.
A person may sit for long periods of time, showing little interest in participating in work or
everyday activities, like bathing or getting dressed. Alogia and avolition are increasingly
present in Mr. Cole.
7. The lesion detected 10 years ago has likely progressed. I hold this opinion because
Mr. Cole’s clinical symptoms have progressed. A new MRI and PET are strongly
recommended. Indeed, it is my opinion that new brain imaging is essential to both medical
evaluation and legal representation of Mr. Cole..
8. In conclusion, it is my expert opinion that Mr. Cole has observable brain damage.
His brain lesion renders him unable to respond in a normal way to his environment. The
lesion and symptoms are worsening.
APPENDIX A
Exhibit 11
(87a)
FURTHER AFFIANT SAYETII NOT.
Anne Hayman, M.D.
Subscribed and sworn to before me this
My commission number is:
My commission expires:
I
day of.January, 2015.
/ .2—
01 1 Ob
3
APPENDIX A
Exhibit 11
(88a)
DECLARATION OF TRAVIS SNYDER, DO
I, Travis Snyder, DO, declare:
1.
I am a physician who is board-certified in Radiology with additional board
certification and added qualifications in Neuroradiology. I completed residency at Michigan
State in 2014 and a fellowship in Neuroradiology at the University of Miami in 2015. I am over
18 years old.
2.
I am Adjunct Professor of Radiology at Michigan State University, Adjunct
Assistant Professor of Neuroradiology and Radiology at Touro University Nevada, Touro
University California, and University of Nevada Reno School of Medicine and a clinical
professor of Radiology at the UNLV School of Medicine. I am program director of the HCA
sunrise consortium NV radiology residency. I am in clinical practice specializing in
Neuroradiology. I have given and authored over 50 presentations, abstracts and articles in the
field of Radiology and Neuroradiology. I have attached a copy of my Curriculum Vitae.
I have reviewed the MRI on Benjamin Cole (DOB 4/8/65) performed at
3.
Oklahoma State University on 3/30/22. This is a markedly abnormal MRI which demonstrates
multiple pathologic findings as follows:
11 x 11 x 15 mm (AP, T, CC) prominent left basal ganglia lesion centered in the
left globus pallidus which involves the putamen and left genu and posterior limb
of the internal capsule, portions of the lentiform nucleus and the most superior
anterior aspect of the midbrain. There is a small amount of central decreased SWI
signal consistent with associated hemosiderin (old hemorrhage) or calcification.
There is no abnormal enhancement. While this lesion was present on the 11/22/04
MRI, it likely has mildly increased in size by comparison of available key images
and radiologist measurement at the time (11 mm). This is highly consistent with
toxic exposure to chemicals substances, including carbon monoxide. This lesion
impacts multiple regions with predominant motor function. Parkinsonism,
including delayed onset) has been well described as occurring in 9.5% of patients
with Carbon Monoxide (CO) and is likely much more prevalent in CO patients
Exhibit 12
APPENDIX A
(89a)
with globus pallidus lesions, as only 20% of patients with CO poisoning have
globus pallidus lesions (Jeon, Sohn et al. 2018) (Choi 2002). Some degree of left
sided motor dysfunction would be expected given the extent of the lesion in this
location and Parkinsonism would be highly consistent with this lesion. The globus
pallidus also acts as a relay system connecting the frontal lobes and thalamus.
There is research indicating the globus pallidus is involved in pathways affected
by schizophrenia (Williams 2017) with cognitive associations well described (Li,
Zhao et al. 2021). Motor, cognitive and memory symptoms have been well
described in patients with strokes to these regions (Giroud, Lemesle et al. 1997).
There is large diffuse increased FLAIR/T2 signal consistent with gliosis (scarring)
involving the bilateral posterior corona radiata, the posterior centrum semiovale
and posterior periatrial trigones measuring 5.3 cm on the left and 3 cm on the
right in maximal dimension. This finding is also consistent with a chemical type
insult, as this is one of the most common locations affected in toxic insults
including carbon monoxide poisoning. Delayed neurological sequela, a
demyelinating inflammatory condition occurring in approximately 24.1% of
patients following a toxic exposure is associated with these imaging findings
(Chang, Han et al. 1992, Pepe, Castelli et al. 2011). The corona radiata has been
described as “pivotal hubs for the neural circuitry in charge of voluntary
emotional expression and cognition processing. Damage to the corona radiata
disconnects the functional circuitry between the frontal cortex and brain stem,
disturbing voluntary emotional expression.” (Jiang, Yi et al. 2019) Given the size
of this diffuse increased bilateral signal, symptoms are highly likely. It is possible
this is a new finding, as it is not mentioned in the 11/22/04 MRI report by the
interpreting radiologist Dr. Powers or a subsequent review by a neurologist Dr.
Hastings or neurordiologist Dr. Hayman, however it is most likely this finding
was present previously, just better visualized due to superior resolution of the
current study. The 2004 images are not available directly for comparison.
Exhibit 12
APPENDIX A
(90a)
There is limitation in the current viewable 3/30/22 imaging, more sensitive
volumetric analysis and diffusion tensor imaging has not yet been able to be
analyzed. 3D reformats of various sequences are not yet possible and would be of
benefit to asses some regions in the anterior right frontal lobe. I reserve the right
to supplement this report when these analyses are available.
4.
The clinical record is highly concordant with the imaging findings described. Dr.
Gur’s 2009 neuropsychiatric evaluation analysis demonstrated frontal lobe deficits, greater on
the left, highly concordant with the imaging findings (Dr. Gur page 3). Ben Cole has been
diagnosed with chronic and persistent severe schizophrenia (Dr. Hough page 20). The effect of
the left globus pallidus centered lesion may be exacerbating this condition in addition to inherent
symptoms from the damage. Mr. Cole is reported to be in a wheelchair, without reported medical
cause, which may relate to the motor function of the described left globus pallidus centered
lesion and possible Parkinsonism (
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