Petition for Writ of Certiorari — Benjamin Robert Cole, Petitioner v. Jim Farris, Warden

No.

IN THE

Supreme Court of the United States

Benjamin Cole,

Petitioner

v.

Jim Farris, Warden,

Oklahoma State

Penitentiary, Respondent

On Petition for Writ of Certiorari to the

Oklahoma Court of Criminal Appeals

PETITION FOR WRIT OF CERTIORARI

THIS IS A CAPITAL CASE WITH IMMINENT EXECUTION SCHEDULED FOR

OCTOBER 20, 2022 AT 10:00 A.M.

October 17, 2022

Thomas D. Hird*

Katrina Conrad-Legler

Attorneys for Petitioner

Assistant Federal Public Defenders

Western District of Oklahoma

215 Dean A. McGee, Suite 707

Oklahoma City, OK 73112

Phone: (405) 609-5975

Fax: (405) 609-5976

Email: Tom_Hird@fd.org

*Counsel of Record

QUESTIONS PRESENTED

1.

Whether it violates the Eighth Amendment and this Court’s decisions in Ford

v. Wainwright, 477 U.S. 399 (1986), and Panetti v. Quarterman, 551 U.S. 930

(2007), for a state court to bypass procedural safeguards when there are

disputed issues of fact?

2.

Whether it violates the Fourteenth Amendment for a warden, who is directly in

charge of carrying out the execution, to also assume the role of gatekeeper

to

the execution competency process?

3.

Whether the State of Oklahoma’s procedural framework for determining

competency to be executed violates the Eighth Amendment, and the Court’s

decisions in Ford v. Wainwright, and Panetti v. Quarterman?

i

PARTIES TO THE PROCEEDINGS

All parties to this action are named in the caption.

CORPORATE DISCLOSURE STATEMENT

No corporate entities are parties to this lawsuit.

ii

TABLE OF CONTENTS

QUESTIONS PRESENTED........................................................................................... i

PARTIES TO THE PROCEEDINGS ............................................................................ ii

CORPORATE DISCLOSURE STATEMENT ............................................................... ii

TABLE OF CONTENTS .............................................................................................. iii

INDEX OF APPENDICES ........................................................................................... iv

TABLE OF AUTHORITIES ......................................................................................... vi

OPINIONS BELOW ...................................................................................................... 1

STATEMENT OF JURISDICTION .............................................................................. 1

CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED ...................... 2

STATEMENT OF THE CASE ...................................................................................... 2

REASONS FOR GRANTING THE WRIT .................................................................... 6

I.

THIS COURT SHOULD GRANT CERTIORARI TO

DETERMINE WHETHER OKLAHOMA’S EXECUTION

COMPETENCY MECHANISM IS FACIALLY

UNCONSTITUTIONAL. ................................................................ 6

A. Oklahoma’s Mechanism is an Outlier and Violates the

Fourteenth Amendment by Making the Death-Row

Warden Gatekeeper to the Execution Competency Process .... 6

B. Oklahoma’s Procedural Competency Framework Violates

the Eighth Amendment Under Ford and Its Progeny ........... 10

II.

THIS

COURT

SHOULD

GRANT

CERTIORARI

TO DETERMINE WHETHER THE STATE COURTS

VIOLATED MR. COLE’S EIGHTH AND FOURTEENTH

AMENDMENT

RIGHTS

IN

BYPASSING

THE

SUBSTANTIAL THRESHOLD STANDARD. ............................. 12

A. Mr. Cole Meets the “Substantial Threshold”

Entitling Him to Competency Due Process .............................. 6

iii

B. Despite Disputed Issues of Fact, the State Courts

Bypassed the Procedural Safeguards Set by This

Court, Holding Mr. Cole to the Ultimate

Incompetency Showing............................................................ 18

CONCLUSION AND PRAYER FOR RELIEF ........................................................... 22

INDEX OF APPENDICES:

A

Cole v. Farris, 2022 OK CR ___, Order Denying Extraordinary

B

In re Benjamin R. Cole, Case No. CV-2022-140, Pittsburg County,

C

In re Benjamin R. Cole, Case No. CV-2022-140, Evidentiary

D

In re Benjamin R. Cole, Case No. CV-2022-140, Exhibits

E

Interoffice Memorandum dated October 23, 2019 to Scott Crow,

Interim Warden, from Tommy Sharp, Interim Warden with the

Subject, “Relocation of Death Row Inmates” admitted during the

September 30, 2022 Evidentiary Hearing as Exhibit 25

F

Select Department of Corrections Medical/Psych Records of

Benjamin Cole admitted during the September 30, 2022

Evidentiary Hearing as Exhibit 26

G

Order for Mental Health Evaluation, Cole v. Farris,

No. 15-CV-0049-GKF-CDL (N.D. Okla. June 13, 2022) (Doc. 54)

Relief

Order Addressing Benjamin R. Cole’s Request for a Writ of

Mandamus

Hearing Transcript

presented to the trial court

iv

TABLE OF AUTHORITIES

SUPREME COURT CASES

Page(s)

Cases

Allen v. Trammell,

568 U.S. 1005 (2012) ..................................................................................7

Ford v. Wainwright,

477 U.S. 399 (1986) ......................................................................... Passim

Furman v. Georgia,

408 U.S. 238 (1972) ..................................................................................10

Hurst v. Florida,

577 U.S. 92 (2016) ....................................................................................19

Jones v. Mississippi,

141 S. Ct. 1307 (2021) ........................................................................19, 20

Madison v. Alabama,

139 S. Ct. 718 (2019) ..................................................................... 8, 11, 19

Panetti v. Quarterman,

551 U.S. 930 (2007) ......................................................................... Passim

Ring v. Arizona,

536 U.S. 584 (2002) ..................................................................................19

Rostker v. Goldberg,

448 U.S. 1306 (1980) ................................................................................22

Trop v. Dulles,

356 U.S. 86 (1958) ....................................................................................11

FEDERAL CIRCUIT COURT CASES

Allen v. Workman,

500 F. App’x 708 (10th Cir. 2012) ........................................................7, 18

v

FEDERAL DISTRICT COURT CASES

Administrative Closing Order, Cole v. Farris,

No. 15-CV-0049-GKF-CDL (N.D. Okla. Nov. 24, 2015) .........................13

Order for Mental Health Evaluation, Cole v. Farris,

No. 15-CV-0049-GKF-CDL (N.D. Okla. June 13, 2022) ........................16

STATE COURT CASES

Singleton v. State,

437 S.E. 2d 53 (S.C. 1993) ..........................................................................9

Van Tran v. State,

6 S.W.3d 257, 267-69 (Tenn. 1999) ............................................................8

Ward v. Hutchison,

558 S.W.3d 856 (Ark. 2018) .......................................................................9

STATUTES

U.S. Const. amend. VIII. ......................................................................................2

U.S. Const. amend. XIV .......................................................................................2

28 U.S.C. § 1257 ...................................................................................................2

28 U.S.C. § 2254 ...................................................................................................7

Ala. Code § 15-16-23 .............................................................................................8

Ariz. Rev. Stat. Ann. § 13-4022............................................................................8

Ark Code Ann. § 16-90-506 ..................................................................................8

Cal. Penal Code § 3701 .........................................................................................9

Fla. R. Crim. P. Rule 3.811 ..................................................................................8

Ga. Code Ann. § 17-10-66 .....................................................................................8

Kan. Stat. Ann. § 22-4006 ....................................................................................8

vi

Ky. Rev. Stat. § 431.2135 .....................................................................................8

La. Rev. Stat Ann. § 15:567.1 ..............................................................................8

Miss. Code Ann. § 99-19-57 ..................................................................................8

Mo. Ann. Stat. § 552.060 ......................................................................................8

N.C. Gen Stat. Ann. § 15A-1002 ..........................................................................8

Neb. Rev. Stat. Ann. § 29-2537 ............................................................................8

Nev. Rev. Stat. ann. § 176.425 .............................................................................8

Ohio Rev. Code Ann. § 2949.28 ............................................................................8

Okla. Stat. tit. 22, § 1005 .............................................................................2, 3, 4

Okla. Stat. tit. 22, § 1005.1 ..............................................................................6, 7

Or. Rev. Stat. Ann. § 137.463 ..............................................................................8

S.D. Codified Laws § 23A-27A-22.1 .....................................................................8

Tex. Code Crim. Proc. Art. 46.05 .........................................................................8

Utah Code Ann. § 77-19-202 ................................................................................8

Wyo. Stat. Ann. § 7-13-901 ..................................................................................8

OTHER AUTHORITIES

Report of the Oklahoma Death Penalty Review Commission, Oklahoma

Death Penalty Review Commission (April 25, 2017) ..............................7

The Uncommon Law: Insanity, Executions, and Oklahoma Criminal

Procedure, 55 Okla. L. Rev. 1 (2002) .........................................................7

vii

PETITION FOR WRIT OF CERTIORARI

Petitioner, Benjamin Cole, respectfully petitions this Court for a writ of certiorari

to review the judgment of the Oklahoma Court of Criminal Appeals in Benjamin Cole

v. Jim Farris, Warden, Oklahoma State Penitentiary, Case No. MA-2022-898.

OPINIONS BELOW

The judgment for which certiorari now is sought is the Oklahoma Court of

Criminal Appeals (“OCCA”) Opinion in Cole v. Farris, Case No. MA-2022-898, issued

on October 17, 2022, and is attached as Appendix A. OCCA refused to issue a

mandamus writ ordering Warden Jim Farris, Oklahoma State Penitentiary (“OSP”), to

refer Mr. Cole for state execution competency proceedings, and denied the trial court

had abused its discretion in also refusing same. The underlying October 4, 2022 opinion

of the Pittsburg County District Court is attached as Appendix B. The district court

held a limited evidentiary hearing on the petition for writ of mandamus; the hearing

transcript is attached as Appendix C. The appendix of exhibits presented to the district

court upon initiation of the proceeding are attached as Appendix D. Additional exhibits

admitted during the September 30, 2022 evidentiary hearing are attached as

Appendices E and F. The June 13, 2020 Order for Mental Health Evaluation in Cole v.

Farris, No. 15-cv-0049-GKF-CDL (N.D. Okla. June 13, 2022) (Doc. 54) is attached as

Appendix G.

JURISDICTION

A final order of the Oklahoma Court of Criminal Appeals, the highest state court

from which Petitioner could seek relief, was entered on October 17, 2022, denying

1

Petitioner’s Petition for Writ of Mandamus. This Court has jurisdiction under 28 U.S.C.

§ 1257.

CONSTITUTIONAL

AND STATUTORY PROVISIONS

The Eighth Amendment provides: “Excessive bail shall not be required, nor

excessive fines imposed, nor cruel and unusual punishments inflicted.” U.S. Const.

amend. VIII.

The Fourteenth Amendment provides in relevant part: “[N]or shall any State

deprive any person of life, liberty, or property, without due process of law.” U.S. Const.

amend. XIV

Okla. Stat. tit. 22, § 1005, which governs state competency proceedings, provides:

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 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 of twelve persons to hear

such inquiry.

STATEMENT OF THE CASE

Mr. Cole was convicted of killing his nine-month-old daughter and sentenced to

death by a Rogers County, Oklahoma jury in 2004. His mental health and adjudicative

competency were in question throughout his trial, state post-conviction, and federal

habeas proceedings. He was diagnosed with schizophrenia. Once his appeals were

exhausted and an execution date set, Mr. Cole in 2015 requested that the warden of

OSP refer his case to the Pittsburg County District Attorney’s Office for a jury trial on

2

his competency to be executed, as required under Oklahoma statute when the prima

facie burden of “good reason to believe” is satisfied. Okla. Stat. tit. 22, § 1005 (originally

enacted 1910, amended 1913).1 The warden refused, and the trial court as well as OCCA

denied Mr. Cole’s requests to order the warden to undertake the referral through

mandamus proceedings. Mr. Cole’s execution was stayed indefinitely, however, amid

investigation and litigation regarding Oklahoma’s lethal injection protocol.

In 2022, after the lethal injection plaintiffs lost their case in federal district

court, it was clear plaintiffs’ executions were again imminent. Thus, on May 20, 2022,

counsel for Mr. Cole contacted OSP Warden Jim Farris, who had replaced the warden

from 2015, enclosing updated materials relevant to the execution competency issue.

These included 2016, 2018, and 2022 reports from psychologist Dr. George Hough,

Ph.D., ABPP, detailing Mr. Cole’s severe mental illness, decompensated mental

condition, and incompetency for execution, and a 2022 report from neuroradiologist

Dr. Travis Snyder, DO, regarding Mr. Cole’s abnormal MRI and brain lesion. Mr. Cole

again requested the initiation of competency for execution proceedings per statute.

1 The statute 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 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 of twelve persons to hear

such inquiry.

Id.

3

App. 00192-194, 00211-246, 00277-286. Counsel sent Warden Farris a supplemental

letter on May 25, 2022, with an additional expert report from Dr. Snyder. App. 00195,

00287-292. Warden Farris was thereby provided the “good reason to believe” that Mr.

Cole’s competency was in question, per statute. Okla. Stat. tit. 22, § 1005.

On July 1, 2022, OCCA set execution dates as expected for twenty-five

Oklahoma death-row prisoners. Mr. Cole’s execution date was set for October 20,

2022. On July 5, 2022, Mr. Cole was evaluated at the Oklahoma Forensic Center

(OFC), as agreed to by both parties. The OFC examining psychologist Dr. Scott Orth,

Psy.D., deemed Mr. Cole competent for execution.

Counsel for Mr. Cole contacted the warden a third time, providing on August

1, 2022 a declaration from Dr. Hough that offered reason to doubt the accuracy and

methods of Dr. Orth’s evaluation and report. App. 00196, 00247-273. Nonetheless, on

August 2, 2022, Warden Farris advised counsel for Mr. Cole that he was refusing to

initiate the state court competency proceedings. App. 00197-198. Despite Warden

Farris acknowledging he is not a mental health professional, he stated he “carefully

considered all information and material submitted by Mr. Cole’s attorneys regarding

his mental health,” id. at 00197, but then he did not reference the reports from Drs.

Hough and Snyder, quoting only a passage from Dr. Orth’s report. Id. at 00197-00198.

See also App. 00060 (9/30/22 Tr. at 32, Warden Farris testifying “I relied extremely

on Dr. Orth’s report.”). In his letter declining to initiate competency proceedings, the

warden did not phrase his inquiry with the objective, threshold burden language of

the statute, which requires the warden to act where “there is good reason to believe”

“insanity,” but instead, substituted his subjective determination of the ultimate

4

competency question, misstating the statute as asking whether “I have good reason”

to believe and concluding, “[I]t is my determination that Mr. Cole has not become

insane.” App. 00198 (emphasis added).

On August 15, 2022, Mr. Cole filed a Petition for Writ of Mandamus in

Pittsburg County District Court, asserting that the warden abused his discretion by

failing to follow his statutory duty. Included in the contemporaneously filed Appendix

of Exhibits were all the above-referenced expert reports, Oklahoma Department of

Corrections (“DOC”) records, and expert reports from earlier in Mr. Cole’s legal

proceedings. A limited evidentiary hearing to determine whether the warden had

abused his discretion was held in Pittsburg County before the Honorable Judge

Michael Hogan on September 30, 2022. At the hearing, counsel for Mr. Cole examined

Warden Farris. Judge Hogan did not take testimony from other witnesses. On

October 4, 2022, Judge Hogan denied mandamus. App. 00025-28.

Grafting the standard for the ultimate competency determination on to the

abuse of discretion determination, Judge Hogan began, “The purpose of this Order is

to adjudicate whether Benjamin Cole has become incompetent to be executed.” Id. at

00025. He concluded, “In considering the totality of the evidence, including Dr. Orth’s

report, the Court FINDS the Defendant is competent to be executed as currently

scheduled.” Id. at 00028.

On October 10, 2022, counsel for Mr. Cole petitioned the Oklahoma Court of

Criminal Appeals (OCCA) for a writ of mandamus. On October 17, 2022, OCCA issued

an order denying relief, finding “Petitioner has provided no new evidence regarding

5

his competence . . . we find there is not a reasonable probability that Petitioner lacks

the competence to be executed.” App. 00023.

REASONS FOR GRANTING THE WRIT

Mr. Cole’s case presents the question of whether a pre-Ford state statute

imbuing the death row warden—the same official charged with carrying out

executions—with the duty of gate-keeper to execution competency proceedings can

pass constitutional muster. A new state statute that removes and remedies this

particular constitutional defect will go into effect eleven days after Mr. Cole’s

execution. Beginning November 1, 2022, the warden will no longer have decisionmaking power over the initiation of competency proceedings. See 22 O.S. Supp. 2022,

§ 1005.1 (effective Nov. 1, 2022). Mr. Cole’s case also presents the related question of

whether, under this Court’s dictates in Ford v. Wainwright, 477 U.S. 399 (1986), and

Panetti v. Quarterman, 551 U.S. 930 (2007), a decision made in this already

questionable regime, conflating the ultimate competency determination with the

substantial threshold burden intended to open the door to further proceedings, can

constitutionally stand.

I.

THIS COURT SHOULD GRANT CERTIORARI TO DETERMINE

WHETHER OKLAHOMA’S EXECUTION COMPETENCY MECHANISM

IS FACIALLY UNCONSTITUTIONAL.

A.

Oklahoma’s Mechanism is an Outlier and Violates the Fourteenth

Amendment by Making the Death-Row Warden Gatekeeper to the

Execution Competency Process.

Placing the warden in the position of gatekeeper of whether to seek a

competency trial violates the Constitution because he is not only an executive officer,

but also the executioner. See Ford, 477 U.S. at 416 (noting that “the most striking

6

defect” in the competency procedures at issue was “the State’s placement of the

decision wholly within the executive branch”); see also id. at 427 (Powell, J.,

concurring) (noting the executive branch cannot be allowed to control both access to

such procedure and carry out the execution). See, also, e.g., Dupler, Bryan, The

Uncommon Law: Insanity, Executions, and Oklahoma Criminal Procedure, 55 Okla.

L. Rev. 1, 14 (2002) (noting Oklahoma’s archaic statutory provision “is of doubtful

constitutionality after Ford v. Wainwright”). The bipartisan Oklahoma Death

Penalty Review Commission saw the same problem noted in Mr. Dupler’s law review

article. See Report of the Oklahoma Death Penalty Review Commission at 157,

Oklahoma Death Penalty Review Commission (Apr. 25, 2017), available at

https://www.courthousenews.com/wpcontent/uploads/2017/04/OklaDeathPenalty.pdf.

So

too

did

the

Oklahoma

Legislature, presumably, given that the new statute will remove the warden from the

process, bringing Oklahoma in line with other jurisdictions retaining the death

penalty. See 22 O.S. Supp. 2022, § 1005.1 (effective Nov. 1, 2022).

Ten years ago, the U.S. Court of Appeals for the Tenth Circuit upheld

Oklahoma’s mechanism as constitutional because of the availability of mandamus

review. See Allen v. Workman, 500 F. App’x 708, 711 (10th Cir. 2012) (unpub.)

(Oklahoma regime comports with Ford, despite role of warden, because “a jury is the

ultimate arbiter of sanity, and both the state trial court and the OCCA reviewed the

warden’s gatekeeping function”).2 This Court did not review that decision, see Allen

2 The Tenth Circuit’s opinion came within the 28 U.S.C. § 2254(d)(1) framework of

deference to the OCCA decision below, denying OCCA unreasonably applied Ford in

7

v. Trammell, 568 U.S. 1005 (2012) (mem.). The proceedings in Mr. Cole’s case

underscore the flaw in Oklahoma’s system, which now require this Court’s

intervention.

Mandamus

review

does

not

render

Oklahoma’s

mechanism

constitutional; it provides no guarantee of due process since it concerns the warden’s

exercise of discretion in the discharge of his duties.

That the state legislature recently passed a statute removing the warden from

the process changes the landscape from that before the Tenth Circuit in 2012. As it

stands, Oklahoma appears to be the only state that names the death-row warden sole

gatekeeper to competency proceedings. Arkansas, Missouri, Nebraska, Nevada, and

Utah provide statutory authority to the Director of Corrections of their state prison

systems, though not to the death-row warden. See ARK CODE ANN. § 16-90506(d)(1)(A)(i)(a)-(b) (West); MO. ANN. STAT. § 552.060(2) (West); NEB. REV. STAT.

ANN. § 29-2537(1) (West); NEV. REV. STAT. ANN. § 176.425(1) (West); UTAH CODE ANN.

§ 77-19-202 (West). The majority of death-penalty jurisdictions, however, do not limit

the initiation mechanism to the hands of a corrections official, whether by statute,

see ALA. CODE § 15-16-23; ARIZ. REV. STAT. ANN. § 13-4022(A) (West); FLA. R. CRIM.

P. RULE 3.811(d)(1)-(5); GA. CODE ANN. § 17-10-66 (West); KAN. STAT. ANN. § 224006(a) (West); KY. REV. STAT. § 431.2135 (1); LA. REV. STAT ANN. § 15:567.1(c) (West);

MISS. CODE ANN. § 99-19-57(2)(a) (West); N.C. GEN STAT. ANN. § 15A-1002 (West);

upholding the state mechanism. Mr. Cole’s case is before this Court without those

procedural barriers. See Madison v. Alabama, 139 S. Ct. 718, 725 (2019) (internal

citation and quotation marks omitted) (reversing state court decision for potential legal

error in applying Ford and Panetti, while recognizing decision from the prior year

upholding federal court denial of relief “was premised on AEDPA’s demanding and

deferential standard”).

8

OHIO REV. CODE ANN. § 2949.28(B)(1) (West); OR. REV. STAT. ANN. § 137.463 (West);

S.D. CODIFIED LAWS § 23A-27A-22.1; TEX. CODE CRIM. PROC. ART. 46.05; WYO. STAT.

ANN. § 7-13-901 (West), or by case law. See Com. v. Banks, 29 A.3d 1129, 1131 (Pa.

2011); Van Tran v. State, 6 S.W.3d 257, 267-69 (Tenn. 1999), abrogated on other

grounds by State v. Irick, 320 S.W.3d 284, 294 (Tenn. 2010); Singleton v. State, 437

S.E.2d 53, 60 (S.C. 1993).

Additionally, in recent years, states have reconsidered their execution

competency statutes, as Oklahoma now has. A previous version of Arkansas’s statute,

which, like Oklahoma’s, did not include any express mechanism ordering the Director

to consider supporting evidence offered by an inmate’s counsel, was invalidated as

unconstitutional because it was “devoid of any procedure by which a death-row

inmate has an opportunity to make an initial substantial threshold showing of

insanity . . . to trigger the hearing process.” Ward v. Hutchinson, 558 S.W.3d 856,

864-65 (Ark. 2018) (internal citation and quotation marks omitted). California has a

statute giving the warden sole authority similar to Oklahoma’s, but its governor

recently signed Assembly Bill 2657, which charges counsel having reason to believe

a client is incompetent for execution with the duty to file a petition in the court of

conviction alleging same. See CAL. PENAL CODE § 3701, repealed by 2022 Cal. Legis.

Serv.

Ch.

795

(A.B.

2657)

(West),

available

at

https://leginfo.legislature.ca.gov/faces/billCompareClient.xhtml?bill_id=202120220A

B2657&.

Oklahoma’s procedure is an inherent conflict, in the same vein as that

recognized in Ford, where the warden is also charged with carrying out an inmate’s

9

execution and thus “cannot be said to have the neutrality that is necessary for

reliability” in what the warden and the state courts have turned from a threshold

determination to a “factfinding proceeding,” see infra, II(B). 477 U.S. at 416. Mr.

Cole’s execution by a state mechanism that will no longer exist eleven days later is

impermissibly arbitrary, denying him the process necessary to ensure he is competent

for execution and thereby to protect his Eighth Amendment rights. See Ford, 477 U.S.

at 410 (“Once a substantive right or restriction is recognized in the Constitution,

therefore, its enforcement is in no way confined to the rudimentary process deemed

adequate in ages past.”).

B.

Oklahoma’s Procedural Competency Framework Violates the

Eighth Amendment Under Ford and Its Progeny.

The arbitrary nature of Mr. Cole’s execution under a state mechanism that will

cease to exist soon after underscores the violation of his Eighth Amendment right to

be free of cruel and unusual punishment. Cf. Furman v. Georgia, 408 U.S. 238, 277

(1972) (Brennan, J., concurring) (most significant function of Eighth Amendment

prohibition against cruel and unusual punishment in modern society “is to protect

against the danger of [punishment’s] arbitrary infliction”). Additionally, Oklahoma’s

statute dates back one hundred years from the present, significantly removed from

current-day understandings of mental illness and due process, and predates Ford by

seventy-five years. Continued deference to the law of a bygone era without accounting

for the passage of time is inherently suspect under Eighth Amendment jurisprudence:

Not bound by the sparing humanitarian concessions of our forebears,

the Amendment also recognizes the ‘evolving standards of decency that

mark the progress of a maturing society.’ In addition to considering the

barbarous methods generally outlawed in the 18th century, therefore,

10

this Court takes into account objective evidence of contemporary values

before determining whether a particular punishment comports with the

fundamental human dignity that the Amendment protects.

Ford, 477 U.S. at 406, citing Trop v. Dulles, 356 U.S. 86, 101 (1958) (plurality

opinion). By way of comparison, only twenty-seven years after Ford, this Court saw

fit to clarify and expand the meaning of its Eighth Amendment protection, reasoning

that “[a] prisoner’s awareness of the State’s rationale for an execution is not the same

as a rational understanding of it.” Panetti, 551 U.S. at 959. Instead, when a prisoner’s

condition “prevent[s] him from comprehending the meaning and purpose of the

punishment to which he has been sentenced,” they are eligible for Ford’s protections.

And just twelve years after Panetti, this Court again made clear the expansive nature

of Ford: delusions, though suffered by both the Ford and Panetti petitioners, were not

a prerequisite. Instead, “a person suffering from dementia may be unable to rationally

understand the reasons for his sentence; if so, the Eighth Amendment does not allow

his execution.” Madison, 139 S. Ct. at 726-27.

The Eighth Amendment inquiry is by well-established case law not a static one,

and Oklahoma’s adherence to a century-old statute to execute Mr. Cole—on the eve

of its repeal—is constitutionally violative. This Court has summarized the thrust of

its Eighth Amendment Ford jurisprudence:

Ford had explored what lay behind the Eighth Amendment’s

prohibition, highlighting that the execution of a prisoner who cannot

comprehend the reasons for his punishment offends moral values and

‘serves no retributive purpose.’ 551 U.S. at 958, 127 S. Ct. 2842. Those

principles, the Panetti Court explained, indicate how to identify

prisoners whom the State may not execute.

Madison, 139 S. Ct. at 723.

11

II.

THIS COURT SHOULD GRANT CERTIORARI TO DETERMINE

WHETHER THE STATE COURTS VIOLATED MR. COLE’S EIGHTH

AND FOURTEENTH AMENDMENT RIGHTS IN BYPASSING THE

SUBSTANTIAL THRESHOLD STANDARD.

A.

Mr. Cole Meets the “Substantial Threshold” Entitling Him to

Competency Due Process.

Mr. Cole can show he made a “substantial threshold showing of insanity,”

Panetti, 551 U.S. at 950, and was thus “entitled to these [due process] protections.”

Id. Mr. Cole submitted multiple reports from psychological experts of various

disciplines detailing his severe mental illness and resulting incompetency. Whether

his evidence will ultimately be seen to render him incompetent for execution is an

issue for a competency jury as trier of fact under state statute; it was not a decision

for the warden or trial judge to make in the guise of determining the existence of

“good reason to believe” insanity had developed.

Mr. Cole suffers from severe, diagnosed mental illness; his condition has

deteriorated slowly but steadily since his conviction. The series of attorneys who

represented Mr. Cole throughout the state and federal post-conviction process all

reported the same detached, tangential, and increasingly incongruent behavior noted

by trial counsel. Evidence from a board-certified psychiatrist, clinical psychologist, and

neuroradiologists has established both the nature of Mr. Cole’s organic brain disorder

and the connection between the disorder and Mr. Cole’s mental illness.

Dr. Linda Hayman, a board-certified neuroradiologist, identified the

abnormality patent in a 2004 brain study as a lesion in the basal ganglia region of

Mr. Cole’s brain. In 2004, the lesion was the size of a lima bean. Lesions in this area

of the brain are associated with schizophrenia, a neuro-chemical disease. Mr. Cole’s

12

aberrant behavior, noted by prison staff as well as his counsel, is consistent with

“negative symptoms” of schizophrenia. App. 00274-276. Dr. Hayman recommended a

follow-up study of Mr. Cole’s brain using currently available medical technology.

Through no fault of Mr. Cole, this could not be accomplished until earlier this year.3

Dr. Travis Snyder, a physician who is board-certified in radiology with added

qualifications in neuroradiology, reviewed an MRI performed on Mr. Cole on March

30, 2022. Dr. Snyder found the results to be markedly abnormal, demonstrating

multiple pathological findings, including the previously-mentioned lesion. App.

00277-279. Later, Dr. Snyder accessed the Diffusion Tensor Imaging (DTI) and

NeuroQuant volumetric analysis performed at the same time as the MRI on March

30, 2022. Dr. Snyder found that these analyses were “markedly abnormal and

concordant with the previously described abnormal MRI findings, demonstrating

multiple pathologic findings.” App. 00287 (2nd Declaration of Travis Snyder, DO, at

¶ 3). Dr. Raphael Morris, a board-certified psychiatrist, attempted to evaluate Mr.

Cole in December 2008, during the preparation of federal habeas corpus pleadings.

Dr. Morris observed Mr. Cole’s interactions with his counsel. At that time, Dr. Morris

opined Mr. Cole was suffering from Schizophrenia, Paranoid Type, rendering him

3 DOC required a court order before allowing transport of Mr. Cole for brain imaging,

and the federal court denied his motion for a brain scan without prejudice and

administratively closed his Ford action without prejudice on November 24, 2015. See

Administrative Closing Order, Cole v. Farris, 15-CV-0049-GKF-CDL (N.D. Okla. Nov.

24, 2015), Doc. 31. Thereafter, Mr. Cole had no appropriate, active court proceeding

through which to request a brain scan. When his stay of execution was no longer

indefinite, he was able to re-open the federal action and obtain a court order for the

brain imaging.

13

incapable of assisting his counsel. App. 00293-323 (04/04/2009 Independent

Psychiatric Consultation by Raphael Morris, MD).

In 2014, counsel attempted to have Dr. Morris conduct a follow-up evaluation of

Mr. Cole. Consistent with Mr. Cole’s behavior for nearly two years, he refused to leave

his cell. The prison and, ultimately, the DOC Director, refused to allow Dr. Morris to

observe Mr. Cole in his cell. Dr. Morris reviewed all the information collected since

his 2008 evaluation. Dr. Morris reiterated his opinion Mr. Cole is presently suffering

from Schizophrenia, Paranoid Type. App. 00324-334 (01/21/2015 Updated

Independent Psychiatric Consultation by Raphael Morris, MD). By that time, at least

two of the prison medical staff had expressed concerns about Mr. Cole’s mental

deterioration. Dr. Dave Kerby noted and expressed concern after observing Mr. Cole

over several months, and recommended a psychiatric evaluation based on Mr. Cole’s

decline. The medical coordinator, Patti Stem, Ph.D., noted Mr. Cole’s decompensation

and continued decline during the summer of 2014. See medical record excerpts at

App. 00255. Additional new exhibits were presented at the evidentiary hearing

showing recent concerns by DOC staff as well. See App. 00348-360. (Exhibits 25 and

26 admitted during the September 30, 2022 Evidentiary Hearing, Interoffice

Memorandum dated October 23, 2019 to Scott Crow, Interim Warden, from Tommy

Sharp, Interim Warden with the Subject, “Relocation of Death Row Inmates,” and

Select Department of Corrections Medical/Psych Records of Benjamin Cole).

Starting in 2016, Dr. David G. Hough, a clinical psychologist, began working as

an expert in this case. Dr. Hough encountered some of the same or similar difficulties

as detailed in regard to Dr. Morris above. Dr. Hough conducted evaluations on

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February 16-17, 2016, and May 10, 2016. App. 00211-238, 00335-347. (Competency

to Be Executed Evaluation, Competency to Be Executed Evaluation: Addendum, and

Curriculum Vitae of David Hough, Ph.D.). In his evaluations, Dr. Hough confirmed

Mr. Cole’s schizophrenia diagnosis (thus increasing the doubt as to Mr. Cole’s

competence), and specifically opined Mr. Cole is incompetent to be executed. App.

00230, 00237.

On April 25 and 26, 2022, Dr. Hough attempted to conduct a psychological

evaluation of Mr. Cole, but was only able to communicate with Mr. Cole through the

“bean hole” at the bottom of his cell door. Dr. Hough executed two affidavits about

April 25 and 26, in which he described the obstructed access to Mr. Cole and his

deteriorated mental and physical condition of Mr. Cole. App. 00241-242 at ¶¶ 11-14.

As for the attempted April 25 visit, Dr. Hough attested to observing Mr. Cole “huddled

in the corner” of a “completely dark cell,” “wearing a rough-hewn prison outfit” that

“was tattered and in poor repair,” appearing “unkempt with poor hygiene” and

“grasping on to something for support” in moving himself to his wheelchair. App.

00240 at ¶¶6-7.

The narrative for Dr. Hough’s attempted visit with Mr. Cole the next day did

not fundamentally change, though he was helped explain the lack of communication

between Mr. Cole and anyone at the prison: “On the way to Mr. Cole’s cell, the Case

manager said that Mr. Cole had not spoken to her in approximately three months and

that he rarely speaks with anyone.” App. 00245 (Second Affidavit of Dr. Hough at ¶

10). Prison staff also described how easily they could bring Mr. Cole out of his cell for

an expert evaluation, if they chose to or were ordered to: the case manager and

15

another corrections officer “acknowledged that [moving Mr. Cole] could easily be done

. . . that in the case of Mr. Cole, being in his chronic, debilitated condition, they did

not anticipate any sort of struggle with Mr. Cole and that it would not be difficult to

bring him out.” Id. at ¶ 12. Yet DOC refused to facilitate an in-person interview.

On July 14, 2022, forensic psychologist Dr. Scott Orth, Psy.D., of the Oklahoma

Forensic Center issued a report based on a single examination of Mr. Cole, occurring

on July 5 and lasting approximately 150 minutes.4 App. 00199-210. Dr. Orth found

Mr. Cole has a rational understanding of the reason he is being executed, and a

rational understanding that he is being executed and the execution is imminent. Id.

at 00210. In response, Dr. Hough prepared a declaration critical of Dr. Orth’s report

and methods. App. 00247-273. He noted that Dr. Orth’s description of Mr. Cole as

“well-groomed” and receptive of a “high degree of positive rapport rather quickly”

contradicted “the historical records . . . of Mr. Cole as presenting with poor hygiene

and with a well-known and chronic history of non-relatedness.” App. 00249 at ¶ 11.

He further questioned Dr. Orth’s account of Mr. Cole’s alleged spontaneous

statements regarding his execution, noting:

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 . . . 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

4 Mr. Cole and Respondent had agreed to a court-ordered examination. See App. 00361-

364 (Order for Mental Health Evaluation, Cole v. Farris, No. 15-CV-0049-GKF-CDL

(N.D. Okla. June 13, 2022) (Doc. 54)).

16

was prepped physically and verbally for this evaluation, yet Dr. Orth

makes no reference to this.

Id. Dr. Hough also described how Dr. Orth’s report ignored the historical record of Mr.

Cole’s “negative symptoms,” including “lengthy periods of voluntary social isolation

and withdrawal, choosing to live completely in the dark for years, extremely poor

hygiene, very flattened affect, and non-communication with staff members for months

at a time.” App. 00250 at ¶ 13. Dr. Orth further failed to “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,” id., to

“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,” id., or to “follow-up with objective, clinically normed

psychological testing,” which “would have been indicated” based on Mr. Cole’s

supposed spontaneous conversational ability. App. 00251 at ¶ 15. Dr. Hough concluded

that Dr. Orth’s findings “should be relied upon, if at all, with a high degree of caution.”

App. 00252 at ¶ 18. Warden Farris’s refusal letter is dated the day after he received

Dr. Hough’s critiquing affidavit. App. 00197-198.

This “battle of the experts” underscores why the state courts should have

directed the warden to initiate competency proceedings, to allow a jury to settle the

matter. Instead, the warden misunderstood his statutory burden by acting as the

ultimate factfinder on the question of assigning weight to the various experts. See

App. 00103-105 (9/30/22 Tr. at 75-77). Substantial evidence has been presented to the

warden documenting an abnormality in Mr. Cole’s brain in a specific region associated

17

with schizophrenia, a neuro-chemical disease. Mr. Cole’s behavior, noted in his prison

mental health records, is consistent with the “negative symptoms” of schizophrenia,

highly corroborated through brain imaging. Dr. Hough has opined Mr. Cole is

incompetent to be executed and has further provided an expert opinion rebutting Dr.

Orth’s methodology and findings, and Drs. Morris, Hayman, and Snyder presented

further prima facie reason to question Mr. Cole’s competency to be executed. It was

not within the warden’s purview to decide to bar this constitutional claim in the face

of this “good reason to believe” that Mr. Cole has become insane while confined under

a sentence of death, which meets the substantial threshold constitutionally entitling

Mr. Cole to due process.

B.

Despite Disputed Issues of Fact, the State Courts Bypassed the

Procedural Safeguards Set by This Court, Holding Mr. Cole to the

Ultimate Incompetency Showing.

Though Oklahoma’s statute casts “a jury as the ultimate arbiter of sanity,” the

warden instead placed himself in that role, making a decision that Mr. Cole is

competent, and therefore refusing to initiate proceedings. Allen, 500 F. App’x at 711.

He did this with an admitted emphasis on the court-appointed expert, Dr. Orth,

despite the outlier nature of that report, which differed from the several defense

expert reports finding Mr. Cole severely ill with schizophrenia, possessing a damaged

brain, and incompetent to be executed. See Panetti, 551 U.S. at 949 (“As an example

of why the state procedures on review in Ford were deficient, Justice Powell

explained, the determination of sanity ‘appear[ed] to have been made solely on the

basis of the examinations performed by state-appointed psychiatrists.’”). This created

a compounded constitutional violation in the application of Oklahoma’s flawed

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mechanism to Mr. Cole: 1) the warden denied Mr. Cole access to competency process

based on his unqualified, subjective opinion, and 2) this subjective opinion deemed

Mr. Cole competent, but Mr. Cole did not have to prove incompetency at that stage.

He need only have met the threshold standard. Instead, in line with the “most

striking defect” of the state process at issue in Ford, “the final determination of a fact,

critical to the trigger of a constitutional limitation upon the State’s power,” was left

up to the warden. 477 U.S. at 416. As explicated below, mandamus review by the

state courts did not rectify the constitutional violation.

While no state statute or case law clarifies the quantum of evidence providing

“good reason to believe,” and the federal “substantial threshold” has also not received

specific definition, it cannot be equal to that required to meet the ultimate

determination of incompetency. See Panetti, 551 U.S. at 950 (“substantial threshold

showing of insanity” triggers requirement of further protections and process allowing

chance to prove ultimate burden); cf. Jones v. Mississippi, 141 S. Ct. 1307, 1315 (2021)

(citing Ford and recognizing that sanity is an “eligibility criteria . . . that must be met

before an offender can be sentenced to death”).5

5 The Jones concurrence additionally relied on Madison v. Alabama, 139 S. Ct. 718

(2019), as an example of this Court demanding “factual findings when it comes to other

classes of criminals that this Court has declared categorically exempt from certain

punishments.” Jones, 141 S. Ct. at 1326 (Thomas, J., concurring). In Madison, the Court

vacated and remanded “for renewed consideration” of the record after a state court, as

here, “found [a prisoner] mentally competent” and thus eligible for execution.

Taken together, the Jones majority opinion and Justice Thomas’ Jones

concurrence establish that a finding that petitioner has “sanity” is an eligibility

criterion, or a “factual prerequisite” for the execution of any death sentence. Because

sanity is an eligibility criterion, the Sixth Amendment demands that the state cannot

execute a petitioner unless and until: (a) a jury; (b) finds beyond a reasonable doubt;

that (c) he is sane. See Hurst v. Florida, 577 U.S. 92, 99 (2016) (“Ring [v. Arizona, 536

19

The district court duplicated the warden’s misunderstanding of his statutory

role, also casting itself as “ultimate arbiter of sanity” in purporting to “adjudicate

whether Benjamin Cole has become incompetent to be executed” and finding Mr. Cole

“competent to be executed as currently scheduled.” App. 00025, 00028. Both the

warden and state trial court, in ostensibly deciding whether Mr. Cole met the

substantial burden for entitlement to competency proceedings, held him to the burden

of the ultimate question of incompetency, circularly using this to deny him further

process to show he met that standard.

OCCA failed to acknowledge the warden and the district court’s bypassing of

procedural safeguards, and failed to acknowledge the numerous disputed issues of fact.

For example, even though the district court’s order began by noting “[t]he purpose of

this Order is adjudicate whether Benjamin Cole has become incompetent to be

executed,” App. 00025 (emphasis added), and concluded by “FIND[ING] the Defendant

is competent to be executed,” id. at 00028, the OCCA excised these signposts. See App.

at 00007, 00012, 00023 (OCCA instead repeatedly looked to district court’s sole

reference to “substantial threshold” burden). Though the district court once recited the

correct standard, OCCA failed to engage with the district court’s contrary

announcements that it had instead erroneously held Mr. Cole to the ultimate burden

of proof.

U.S. 584 (2002)] require[s] a jury to find every fact necessary to render [a defendant]

eligible for the death penalty.”).

Here, Mr. Cole has presented prima facie proof that he lacks sanity and is

therefore exempt from the death penalty. Jones thus counsels this Court should

preclude his execution, because there has been no jury finding (or any finding), beyond

a reasonable doubt, that he is sane or competent to be executed.

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And despite new evidence from experts regarding Mr. Cole’s significant brain

lesion, brain damage, and severe mental illness resulting in findings of incompetency,

OCCA errantly stated “Petitioner has provided no new evidence regarding his

competence.” App. 00023. Further, while OCCA might have found Dr. Hough’s critique

of Dr. Orth’s evaluation “incredible,” App. 00022-23, neither the warden nor the

district court referred to Dr. Hough’s attack on the sole expert to deem Mr. Cole

competent in their respective letter refusing to refer for competency proceedings and

order denying mandamus. OCCA did not reference these omissions in its analysis of

whether the district court abused its discretion. And neither the warden nor any

Oklahoma court has engaged with Dr. Hough’s critiques regarding Dr. Orth’s failure

to take into account Mr. Cole’s historical records. App. 00249-251 at ¶¶ 11, 13, 15.

While OCCA’s findings would not be out place in the context of a jury weighing

experts’ credibility, OCCA ultimately leaves unanswered how a single outlier report—

attacked by an expert who has worked on Mr. Cole’s case for years—prevents the rest

of Mr. Cole’s substantial body of evidence from reaching the necessary prima facie

threshold. The “substantial threshold showing of insanity” under the Oklahoma

regime and in this specific case was bypassed. Panetti, 551 U.S. at 950. Certiorari

should be granted to remedy this malfunction and further elucidate the substantial

threshold showing under Ford and progeny.

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CONCLUSION AND PRAYER FOR RELIEF

For the foregoing reasons, Mr. Cole prays that this Court grant a writ of

certiorari to resolve the Questions Presented. Mr. Cole further prays the Court grant

his Emergency Application for Stay of Execution Pending Filing and Disposition of

Petition for Writ of Certiorari filed on October 14, 2022.6

Respectfully submitted this 17th day of October, 2022.

/s Thomas D. Hird

Thomas D. Hird*

Katrina Conrad-Legler

Attorneys for Petitioner

Assistant Federal Public Defenders

Western District of Oklahoma

215 Dean A. McGee, Suite 707

Oklahoma City, OK 73112

Phone: (405) 609-5975

Fax: (405) 609-5976

Email: Tom_Hird@fd.org

*Counsel of Record

6 Mr. Cole renews his request for stay of execution. Since the filing of the Petition for

Writ of Certiorari is no longer pending, Rostker v. Goldberg, 448 U.S. 1306, 1308 (1980),

no longer applies. Mr. Cole also satisfies the Nken v. Holder factors to allow a stay. See

556 U.S. 418, 426 (2009). As he showed with the first and second Rostker factors, Mr.

Cole “has made a strong showing that he is likely to succeed on the merits.” Id. And as

he demonstrated under the third and fourth Rostker factors, he “will be irreparably

injured absent a stay,” a “stay will [not] substantially injure the other parties interested

in the proceeding,” and “the public interest lies” in granting a stay to ensure an

unconstitutional execution does not take place. Id.

22