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

Supreme Court briefOct 17, 2022

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IN THE

Supreme Court of the United States

Benjamin Cole,

Petitioner

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, Oklahoma Bar #13580*

Attorney for Petitioner

Assistant Federal Public Defender

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

APPENDIX

TABLE OF APPENDICES

Page(s)

APPENDIX A

October 17, 2022 Order Denying Extraordinary Relief ....................................... 00001

APPENDIX B

October 4, 2022 Order

Addressing Benjamin R. Cole’s Request for a Writ of Mandamus ...................... 00025

APPENDIX C

Transcript of Petition for Writ of Mandamus Hearing Had on

September 30, 2022, McAlester, Oklahoma, Before the Hon. Michael Hogan ... 00029

APPENDIX D

Appendix of Exhibits

filed in Pittsburg County District Court August 15, 2022 ................................... 00189

APPENDIX 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 ....................................................................... 00348

APPENDIX F

Select Department of Corrections Medical/Psych Records of Benjamin Cole

admitted during the September 30, 2022 Evidentiary Hearing as Exhibit 26 ... 00356

APPENDIX G

Order for Mental Health Evaluation, Cole v. Farris,

No. 15-CV-0049-GKF-CDL (N.D. Okla. June 13, 2022) (Doc. 54) ....................... 00361

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IN THE DISTRICT COURT IN AND FOR PITTSBURG COUNTY,

18th JUDICIAL DISTRICT, STATE OF OKLAHOMA

IN RE: BENJAMIN R. COLE,

Inmate No: 489814

)

) Case No. CV-2022-140

)

***************************************************************

TRANSCRIPT OF PETITION FOR

WRIT OF MANDAMUS HEARING

HAD ON SEPTEMBER 30, 2022

MCALESTER, OKLAHOMA

BEFORE THE HON. MICHAEL HOGAN

***************************************************************

A P P E A R A N C E S

TRIAL JUDGE:

Hon. Michael Hogan

District Judge

McAlester, Oklahoma

FOR THE PETITIONER:

Ms. Bonnie Blumert,

Mr. Thomas Hird, &

Ms. Katrina Conrad-Legler

FEDERAL PUBLIC DEFENDER,

WESTERN DISTRICT OF OKLAHOMA

215 DEAN A. MCGEE, SUITE 707

Oklahoma City, OK 73102

FOR THE RESPONDENT:

Ms. Christina Burns,

Ms. Ashley L. Willis, &

Ms. Tessa L. Henry

OFFICE of ATTORNEY GENERAL

313 NE 21st St.

Oklahoma City, OK 73105

REPORTED BY: Shannon Duncan, CSR No. 1984, Certified Shorthand

Reporter

DISTRICT COURT OF OKLAHOMA - OFFICIAL TRANSCRIPT

APPENDIX C

00029

I N D E X

30th, SEPTEMBER, 2022

TESTIMONY of WARDEN JIM FARRIS

DIRECT EXAMINATION BY BONNIE BLUMERT:

CROSS-EXAMINATION BY CHRISTINA BURNS:

REDIRECT EXAMINATION BY BONNIE BLUMERT:

RECROSS-EXAMINATION BY CHRISTINA BURNS:

Page 9

Page 84

Page 129

Page 137

PETITIONER'S EXHIBITS

NUMBER

DESCRIPTION

MARKED

19-23

Memorandum

E-mails

Narrative

Levels of Mental Health

Supporting Documents

Outline Document

Snyder Declaration

Affidavit of Hough

Hough's Addendum

Hough's Eval

Comp to be Ex. Ev. Dr. Hough

Hough Resume

E-mail

Declaration of Dr. Snyder

Comp Hearing Request

Hough's Credentials

Dr. Orth's Report

Court Order

Warden Farris' Letter

Consultation

RESPONDENT'S EXHIBITS

NUMBER

DESCRIPTION

MARKED

(NONE)

(Exhibits retained by the Court.)

DISTRICT COURT OF OKLAHOMA - OFFICIAL TRANSCRIPT

APPENDIX C

00030

P R O C E E D I N G S

THE COURT:

In Re: Benjamin Cole.

Would the attorneys announce their appearances

We're on the record in CV-22-140

for the record.

MS. BLUMERT:

For Mr. Cole, Bonnie Blumert,

Katrina Conrad-Legler and Tom Hird.

MS. WILLIS:

Ashley Willis, Tessa Henry, and

Christina Burns for Warden Farris.

THE COURT:

Are both parties announcing ready?

MS. BLUMERT:

Yes, Judge.

MS. WILLIS:

Yes, Your Honor.

THE COURT:

We had a discussion in chambers

without a court reporter regarding what the parties' position

is on the burden of proof in this case.

on the record before we begin because it affects how I listen

to the evidence.

And I want to put that

Do you want to go -- since you're the movant,

would you prefer to go first?

MS. BLUMERT:

Yes, Judge.

Would you like me to

argue from the table or the podium?

THE COURT:

MS. BLUMERT:

Podium.

Judge, the standard for this is

not clear in the case law, and I think that's why we're here

talking about it and needing to come up with a decision.

DISTRICT COURT OF OKLAHOMA - OFFICIAL TRANSCRIPT

APPENDIX C

00031

What we can extrapolate, though, are a few

principles that lead us to ultimately understand that the

standard is lower than preponderance of the evidence, which

would make it potentially akin to reasonable suspicion or some

articulable facts that support the proposition.

I get that from a few places.

One of those is

Cooper v. Oklahoma which is 517 US 348, a 1996 case.

that case, they say that the standard of the insanity for

execution trial is preponderance of the evidence.

has to be lower than that to get to the trial itself.

be the same as that standard or higher than that.

In re:

And, in

The standard

It can't

Gary Thomas Allen gives us a good

example of that.

it's a Pittsburg County case number C-05-510, a 2008 case, that

was -- the proceeding I'm referencing is explicitly the

insanity for execution trial.

contemplating here today.

Which is -- give the Court the case number --

So the trial that we are

In that case, the government made the argument

for the trial that it was preponderance of the evidence.

cite Ford, Bingham versus State -- the cases that we've talked

about -- that say that the clear and convincing standard was

unconstitutional.

preponderance of the evidence for that proceeding.

They

So they agreed that the standard was

And then from that argument, the Court crafted a

jury instruction that we have that tells us that the standard

DISTRICT COURT OF OKLAHOMA - OFFICIAL TRANSCRIPT

APPENDIX C

00032

at that trial was -- that the burden of proof is on Gary Thomas

Allen or his representative to establish by a preponderance of

the evidence that he was presently insane, as the term is

defined in the instructions.

So that's the standard from those cases for the

trial.

This has to be lower than that.

What I think that that

evidence really means is that there is some -- what that

standard means is that there are some legitimate evidence as

opposed to -- well, that that legitimate evidence is satisfied

by expert reports and evaluations as opposed to an inmate's

mother calling the warden and saying, my son's crazy, don't

kill him or a cell mate saying or just murmuring through

people.

That would not be enough.

What this statute contemplates is expert reports

and understands that that is the evidence that it contemplates

when it wants to evaluate whether there is good reason to

believe.

The Cole versus Trammell case that we have

talked about that was litigated on for this -- for this client

is Cole V. Trammell 358 Pacific 3rd 932.

Paragraph 21.

about standards in Panetti and Ford, and they're talking about

the hearing, and it says:

an opportunity to be heard, consistent with the basic

requirements of due process.

And I'm pin citing to

In this case, there are fleshing out -- talking

Such a hearing must afford a person

These basic requirements include

DISTRICT COURT OF OKLAHOMA - OFFICIAL TRANSCRIPT

APPENDIX C

00033

an opportunity to submit evidence and argument from the

prisoner's counsel -- argument from the prisoner's counsel,

including expert psychiatric evidence that may differ from the

State's own psychiatric examination.

So the Court of Criminal Appeals contemplates

that that is what that evidence is that they're looking at.

It's expert opinions.

uncontroverted.

And it doesn't need to be

I think the State is tending to argue that we

have to make a showing that it's uncontroverted because they'll

point to Dr. Orth's report and say:

report that says something different, that says he is

competent, so they haven't made the showing to surpass that.

But the statute contemplates that there will

be -- excuse me -- the Court of Criminal Appeals contemplates

that there could be conflicting expert reports.

Well, there's another

So the expert reports, the fact that those

exist, I think is the evidence that that standard contemplates,

and that's what it's looking for when it says:

threshold?

statements or suspicions that somebody is incompetent.

expert reports.

history of medicine treatment with regard to mental health.

What is that high showing?

What is that

It's not simply

It's specific findings.

It's

It's a lengthy

So the standard, Judge, is lower than a

preponderance of the evidence and akin to reasonable

DISTRICT COURT OF OKLAHOMA - OFFICIAL TRANSCRIPT

APPENDIX C

00034

suspicious.

THE COURT:

You may proceed.

MS. WILLIS:

Thank you, Your Honor.

Your Honor, I'd first note that Cooper v.

Oklahoma is a competency to stand trial case and I do not

believe it is relevant here for what we're here for today.

what she cited from the Cole v. Trammell case, which is 2015

OKCR 13, Paragraph 20, where they're discussing Ford and

Panetti, specifically says that once you make a substantial

threshold showing of insanity, that procedural due process

allows him to move on to a hearing.

was referring to in Paragraph 21 is where they have the

opportunity to be heard, consistent with the basic requirements

of due process, where they can present evidence.

And

And the hearing that she

Your Honor, the Petitioner is presumed competent

in this case, and they must overcome that -- that presumption

by making a substantial threshold showing.

the case law is unclear as to what a substantial threshold

showing is, it is not a low burden.

earlier, it is a high burden, and -- let's see, I had that --

that is Ford v. Wainwright 477 US and the pincite is 417.

And while the --

Ford says, as we said

And, Your Honor, we argue that the Petitioner

must meet that substantial threshold showing.

The case law is

not clear, but that is the Supreme Court law, that they have to

make that substantial threshold showing before they are

DISTRICT COURT OF OKLAHOMA - OFFICIAL TRANSCRIPT

APPENDIX C

00035

entitled to a hearing.

And then to overcome that, it is

high -- it is a preponderance of the evidence.

51 percent or higher more likely than not.

It is

Just look over my notes really quick.

THE COURT:

Oklahoma CIV CR -MS. WILLIS:

Paragraph 20.

Thank you.

THE COURT:

MS. BLUMERT:

THE COURT:

MS. BLUMERT:

Are you ready with your first

witness?

OK CR 13, and I'm citing to

And that's the Cole v. Trammell case.

You gave me a cite a second ago, 215

Yes, Judge.

Call your first witness.

Petitioner calls the warden, Jim

Farris.

THE COURT:

Warden Farris, if you will step

right up here, I'll swear you in.

documents with you.

at those unless you're asking to refresh your memory.

put them up there, just -- you're not allowed to just start

reading through them during your testimony.

whale, you have to pull that chair back.

I notice you got some

Just be advised you're not allowed to look

You can

That's kind of a

Raise your right hand, please.

WARDEN JIM FARRIS,

being first duly sworn, was examined and testified as follows,

DISTRICT COURT OF OKLAHOMA - OFFICIAL TRANSCRIPT

APPENDIX C

00036

to wit:

THE COURT:

If you please have a

seat.

You may inquire.

DIRECT EXAMINATION

All right.

BY MS. BLUMERT:

Can you please state your name for the record.

Jim Farris.

What is your job, Warden Farris?

My position is warden of the Oklahoma State

Penitentiary and also the Jackie Brannon Corrections Center.

prefer?

you need to.

Warden, what sort of education do you have to do that

I have a Bachelor's degree in criminal justice,

Do I call you Warden or Mister?

What title do you

Warden would be fine, but you can call me anything

job?

psychology and sociology.

Do you have any training in psychiatry?

In psychiatry, no.

Some of the things that are part of the criminal

Just the basic psychology.

justice degree?

Yes.

You're not a mental health professional?

DISTRICT COURT OF OKLAHOMA - OFFICIAL TRANSCRIPT

APPENDIX C

00037

No, ma'am, I'm not.

Tell us about your duties as a warden of those

facilities.

Well, if I told you all the duties, we'd probably be

here a few weeks.

Sure.

And you can give us the highlights.

Just

broadly, what are your duties?

The main duties are, basically, the care of the

inmates that are assigned to me at the correction center.

Make

sure that they have the proper care until they're, you know,

officially discharged or whatever process the Court sets forth

in those.

Duties is extremely large in a roundabout way.

It's -- it's -- with the staffing, the budget, many different

things that we do as far as properly educating the inmates and

getting them ready to leave, if they're going leave, and follow

the -- basically, the main thing is what we are -- what's court

appointed for us to do with that inmate.

focused on the education or a GED, we always look at those

things to try to do to get those inmates processed out.

If it's mainly

But as far as overall duties, it's extreme.

Just like sitting here today is one of my duties.

most important thing that I go in in a facility each day is to

ensure my staff and the inmates stay safe every day.

I think the

(By Ms. Blumert) Would you say that, broadly, your

DISTRICT COURT OF OKLAHOMA - OFFICIAL TRANSCRIPT

APPENDIX C

00038

role is more administrative and less, in terms of direct,

inmate interaction?

MS. BURNS:

Objection; leading.

THE COURT:

Overruled.

Go ahead.

You may answer.

THE WITNESS:

Basically, I would say I think, if

you looked at a description for a warden with the Department of

Corrections, your basic line is going to be different with

every warden in corrections.

some wardens.

of it.

But I always take my role a little bit deeper than

that.

With the inmates, I've been around corrections for

33 years, inside it.

inmates, I know well, so various times I'm on the yard, you

know, and I'm visiting inmates.

that, you know, I've known a long time, maybe see what

information that they got and how our facility's going and what

processes we need to fix.

Of course, it's administrative; that's just part

So many of the inmates, the long-term

And a lot of it is inmates

So, yes, it's administrative, but I take pride

I'm a little bit different than

in being out there with the inmates also.

(By Ms. Blumert) Are you aware of a man who lives in

your facility named Benjamin Cole?

Yes, ma'am.

What unit does he stay on?

H unit.

DISTRICT COURT OF OKLAHOMA - OFFICIAL TRANSCRIPT

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00039

And tell the Court what H unit is.

H unit is our -- basically, our high max unit.

We --

we have some death row, and we also have inmates that have been

classified that can't be dealt with.

explaining this, is is inmates that can't be deal with at the

medium security level or the minimum security level.

In a simplified way, or

Would it be fair to say that a bulk of the death row

inmates stay on H unit?

MS. BURNS:

Objection; leading.

THE COURT:

Overruled.

THE WITNESS:

Would you say that again, ma'am?

I couldn't hear.

(By Ms. Blumert)

Would it be fair to say that a bulk

of the death row inmates get assigned to H unit?

At one time, yes, that was considered the spot where

death row -- we also have two other units that we have tried --

with the way the nation's going with death row inmates -- to

get them different types of things that may be -- for instance,

the exercise piece of it, to maybe see more daylight, to

actually be out on a yard where you can see other inmates.

So normally in a past process, yes, H unit would

be the death row.

Now, we have another unit that we're

actually putting death row inmates on to try to get them a

little bit more communication with -- with everybody.

bit more life, I'd guess you'd say.

A little

DISTRICT COURT OF OKLAHOMA - OFFICIAL TRANSCRIPT

APPENDIX C

00040

Would that be A unit?

Yes, ma'am.

And you said there was another unit that some folks

are going to; which one is that?

A unit.

Okay.

Is there a second one?

MS. BURNS:

Objection, Your Honor, relevance.

THE COURT:

I don't know what -- if it is

relevant.

MS. BLUMERT:

THE COURT:

MS. BLUMERT:

May I respond, Judge?

Yes.

Judge, the whole issue here is

what the treatment is of inmates, what the warden knows about

his facility, what he knows about the folks who are staying at

his facility, particularly, those that are on death row that

are on H unit or A unit, how much interaction he has with them

and what he knows.

knows.

You can inquire on that issue, but

not where he's housing -- I want to know where Mr. Cole is.

So the objection is sustained as to relevance on

So I think it's important to talk about -THE COURT:

This whole hearing is about what the warden

that particular question.

(By Ms. Blumert)

Would you describe A unit.

It's a

bit looser, right, in terms of restrictions?

Somewhat.

Somewhat looser.

And when you say

DISTRICT COURT OF OKLAHOMA - OFFICIAL TRANSCRIPT

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00041

"restrictions," there's different things.

exercise piece of it, that is a part of it, and that's -- I

wouldn't say it's a step down as far as H unit, but it gives us

a little bit more of the inmate feeling he's getting a little

bit to see or do.

So you could call it a step down.

Like with the

We do not

call it a step down, but that's kind of the process.

Right now, what unit is Mr. Cole on?

H unit.

To your knowledge, has he ever been on A unit?

To my knowledge, has he ever been on A unit?

Correct.

Yes.

THE COURT:

THE WITNESS:

THE COURT:

THE WINTESS:

THE COURT:

Yes, sir.

He has been on A unit?

Is that a

"yes"?

Did you say, "yes"?

(By Ms. Blumert)

Yes.

Okay.

Thank you.

When I say, "been on A unit," was

he housed in A unit?

I do not -- you're going to have to -- I don't know

what you're trying to say.

Do you understand whether Mr. Cole has ever been

housed on A unit?

DISTRICT COURT OF OKLAHOMA - OFFICIAL TRANSCRIPT

APPENDIX C

00042

I know what -- where Mr. Cole has been my two years

at Oklahoma State Penitentiary.

And is that H unit?

Yes, ma'am.

In 2019, there was an effort by your facility to move

some folks to A unit out of the highly restriction H unit; is

that fair?

MS. BURNS:

to the relevance of this line of questioning.

THE COURT:

overruled.

you can develop that.

Judge, I'm going to object again as

At this point, the objection's

I'm not sure what the relevance is.

(By Ms. Blumert)

I need to --

The time you talked about where

there was a tendency or a push to move folks to less

restrictive units, was that around 2019?

I believe it was.

Now, I was not at the facility at

that time, but I know that that was kind of a push to do.

And was there a policy that would determine which

inmates moved to A unit versus stayed on H unit?

Most of the decision making in that was looked at --

maybe -- there was many things that were brought in to that

protocol, and a lot of it was based on if the -- if there had

been something set with the inmates with the execution time or

different things like that.

level the inmate's on and what we felt security -- or what they

A lot of it was the behavior, what

DISTRICT COURT OF OKLAHOMA - OFFICIAL TRANSCRIPT

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00043

felt at that time was the security protocol they needed to

be -- piece of that.

Were some of the things you considered for that were

an inmate's mental health, their risk of victimization, whether

they were high profile, things like that?

At that time -- again, I was not at Oklahoma State

Penitentiary when they first did the movement.

that that was what they did look at, but I -- again, I cannot

speak for the previous warden at that time when that was done.

So I'm sure

As warden, you have access to the records of the

facility and the records of previous wardens, correct?

There's some records that for previous wardens may

be -- may be difficult to look at or get, but it's a fine line

between records that I would be trying to get, you know, as far

as mental health and different things like that; although, I do

have access to those type records.

warden of a facility, I rely on my staff and the professionals

in those areas to give me the correct information.

like I -- my staff have done that very well at the Oklahoma

State Penitentiary.

What I do rely on as a

And I feel

The policy that a warden may implement would persist

unless those -- unless there was another policy that changed

that, correct?

MS. BURNS:

Judge, I'm going to object again.

I'm just not seeing where this is going as relevant to this

DISTRICT COURT OF OKLAHOMA - OFFICIAL TRANSCRIPT

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00044

hearing.

MS. BLUMERT:

THE COURT:

MS. BLUMERT:

May I respond, Your Honor?

Yes.

Judge -- and without just,

essentially, testifying -- but what I'm ultimately trying to do

is show that there are criteria that the facility uses to put

people in H unit versus A unit and the fact that Mr. Cole is

still on A

indicates his specific retention on H unit.

unit is significant, and there's a record that

THE COURT:

MS. BLUMERT:

He's on H unit; you said A.

Excuse -- I did.

His retention on

H unit is significant because there's reasons for that, and we

have a document that's redacted, and I would like to ask the

warden about that and let him talk about that.

THE COURT:

he's been there two years.

MS. BLUMERT:

THE COURT:

I understand that, Judge.

Just answer the questions you know

about, not what you've heard from someone else.

THE WITNESS:

THE COURT:

Well, he can answer if he knows, but

(By Ms. Blumert)

Yes, sir.

You may restate the question.

You understand that when you came

in that there were policies that had been in place prior to

your tenure, right?

Yes, ma'am.

DISTRICT COURT OF OKLAHOMA - OFFICIAL TRANSCRIPT

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00045

persist?

And unless you decided to change those, those would

MS. BURNS:

Objection; lack of foundation.

THE COURT:

Overruled.

Guys, we're in -- I know

you're trying to make a good record here, but this is a

non-jury trial.

so just keep that in mind when you make your objections.

the trier of fact and the decider of what the law is, as far as

this hearing's concerned, and I'm -- I know how to do that.

I need to get this testimony on at some point,

So let's proceed.

MS. BLUMERT:

THE COURT:

MS. BLUMERT:

I'm

May I approach the witness?

Yes.

For the record, I have previously

marked Petitioner's Exhibit 25.

of this hearing, binders with all the documents that I intend

to admit to the judge and to counsel.

(By Ms. Blumert)

I provided, prior to the start

Warden Farris, I'm handing you

what's been previously marked as Petitioner Exhibit 25.

review it for a moment.

Do you recognize this document?

Please

I do not recognize this document.

And the reason --

I'm not saying that this document is not there.

This document

did not come from me.

through -- looks like through the director -- the then

director, Scott Crow.

It was from the previous warden up

But I've not seen this particular

DISTRICT COURT OF OKLAHOMA - OFFICIAL TRANSCRIPT

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00046

document.

What is it?

It's basically a -- basically a -MS. BURNS:

this time.

Your Honor, I'm going to object at

His --

(Crosstalk.)

THE COURT:

Hang on.

MS. BURNS:

He doesn't --

THE COURT:

There's another objection, so let

me -- don't keep talking.

to get that testimony down.

Go ahead.

MS. BURNS:

Hang on.

It's very difficult for the reporter

He doesn't recognize this document,

and so I'm objecting to lack of foundation.

recognize it.

asking him questions about a document that he has no personal

knowledge of.

He doesn't -- didn't compile it.

THE COURT:

objection yet.

He does not

Okay.

And now she's

I don't think we're to that

If you do not recognize the document --

THE WITNESS:

I do not.

MS. BLUMERT:

May I respond, Judge?

THE COURT:

I don't need a response.

get this evidence on.

I need to

So you may inquire.

(By Ms. Blumert)

When was this document created?

It looks like -- says October 23rd, 2019.

DISTRICT COURT OF OKLAHOMA - OFFICIAL TRANSCRIPT

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00047

Okay.

it to show?

And what does it show?

What do you understand

It's -- it looks like it's different phases for the

pods.

The Department at times -- and this is -- like I said,

this is not my document, but guessing on what this is, the

Department usually goes with phases on a lot of different

things, you know, to either phase down from a particular level

or phase up.

saying, that's what I'm guessing this is talking about.

So without looking at exactly what the phases are

THE COURT:

Warden, I'd ask that you not guess.

If you don't know, don't guess.

(By Ms. Blumert)

You review documents like this in

in your tenure as the warden, correct?

Yes.

And you would have had access to previous wardens'

documents, right?

Some.

MS. BLUMERT:

Yes.

Okay.

Move for admission of

Exhibit 25.

THE COURT:

Any objection?

MS. BURNS:

Yes, Your Honor.

Based on lack of

foundation and the fact that, you know, he has not personally

reviewed this document.

contents could possibly be.

He was guessing as to what it's

THE COURT:

What's the legal basis for your

DISTRICT COURT OF OKLAHOMA - OFFICIAL TRANSCRIPT

APPENDIX C

00048

objection?

MS. BURNS:

personal knowledge.

THE COURT:

Lack of foundation and lack of

The objection will be overruled.

will be admitted for what weight it might possibly have.

(By Ms. Blumert)

Warden, I'd like to turn your

attention to that document, and that document specifically is

entitled that it's the relocation of death row inmates,

correct?

Excuse me, could you repeat that?

Entitled that it's the relocation of death row

inmates.

Yes, ma'am.

And specifically talks on the second page about the

criteria for which inmates are going to be moved to A unit,

correct?

paragraph on the bottom?

Do you see that part there on the second to last

Yes, where they were asked, is that what you're

saying, that paragraph there?

Well, it says the criteria for determining that is

mental health, risk of victimization, high profile, et cetera.

Okay.

I'm not seeing that part.

MS. BLUMERT:

THE COURT:

(By Ms. Blumert)

May I approach the witness, Judge?

Yes.

This paragraph here.

And in the

DISTRICT COURT OF OKLAHOMA - OFFICIAL TRANSCRIPT

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00049

paragraph below that, it discusses interviewing the inmates in

preparation for making the determination which unit they will

be on, correct?

Yes.

And in the two pages after that, there's specific

inmate names, right?

Yes.

List of inmates that were on death row at that time,

regardless of unit?

Yes.

And on the second page of that listing, it mentions

Benjamin Cole, Inmate Number 489814, correct?

I'm trying to see where his name's at.

It's the third name down from the top on the second

list of names -- excuse me, the second page of names.

Second page of names?

And it says:

Yes.

Staff believes that inmate has, blank,

blank, and his age makes him susceptible to victimization.

Do you see that part?

I do.

Do you know what is redacted from that section?

No, I do not.

Do you know why a redaction like that would be made?

This is not my document.

MS. BURNS:

Objection.

Judge, I'm sorry, there

is zero foundation for this.

DISTRICT COURT OF OKLAHOMA - OFFICIAL TRANSCRIPT

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00050

THE COURT:

Sustained.

(By Ms. Blumert)

Do you know why, specifically,

Mr. Cole is remaining on H unit this summer and this year and

to the present day?

In my two years, I have seen where -- one thing I

would say in just my interpretation of it -- again, I can't go

on what previous wardens looked at.

look at it.

I'm looking at the way I

Now, with H unit, H unit is all high max

security.

A unit and C unit are also maximum security areas.

So the removal from him to me at that time, he is set, you

know, for the execution process.

looking at -- particularly within my two years of trying keep

up with 800 -- or possibly 800 inmates and 800 at the Jackie

Brannon -- exactly why there's not a particular inmate moved.

So in my mind, I'm not

MS. BLUMERT:

Objection; nonresponsive.

THE COURT:

Are you -- are you finished?

THE WITNESS:

THE COURT:

Yes, sir.

Okay.

(By Ms. Blumert)

Do you know why Benjamin Cole

remains on H unit?

Benjamin Cole remains on H unit at this time because

he is set for execution.

He is currently in the protocol for

an execution.

process that they are assigned to.

We have the cells outlined in our execution

DISTRICT COURT OF OKLAHOMA - OFFICIAL TRANSCRIPT

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00051

Part of the execution protocol is the 35-day mark,

correct?

Yes.

Has significance?

Yes.

At that point, an inmate is moved to a different

cell, right?

He's -- it's a different cell, yes.

And so --

Now, if --

If I may, actually, Judge, I'd move to treat

this witness as hostile under 12 OS 611.

for long periods of time if I'm not allowed to ask pointed,

legal questions.

THE COURT:

I think we'll be here

That's the position I took from the

start of this, so you can -- you can proceed with questions.

(By Ms. Blumert)

So, Warden Farris, he was moved to

that 35-day cell, would've been, earlier this month, correct?

I believe -- I believe the dates was September 15th,

I believe.

So this summer, let's say from May to about July,

Mr. Cole was not in the 35-day cell, correct?

No, ma'am.

He was on H unit that he's been on for some time?

(Court reporter requests verbal response.)

THE COURT:

There needs to be -- did you answer?

DISTRICT COURT OF OKLAHOMA - OFFICIAL TRANSCRIPT

APPENDIX C

00052

THE WITNESS:

Was there a question?

What are you asking me?

I'm -- I'm just listening to her.

(By Ms. Blumert)

He was on H unit for some time

prior to that window, correct?

Yes.

How long has been Mr. Cole been at OSP?

I couldn't tell you the exact day.

I know it's been

many years that he's been there.

Far prior to your tenure, correct?

Oh, yes.

Your facility would have fairly lengthy records about

him, right?

I wouldn't say lengthy, but there would be records

that do go back.

yes, we do have records of -- we keep records for a while.

I'm not sure how far they would go back, but,

Oklahoma State Penitentiary keeps records about all

kinds of things, correct?

Correct.

Down to staff interactions, canteen orders, medical

visits, things like that, right?

There can be, depending on the circumstances.

If you

say canteen, it -- a lot of that depends on if there was an

issue with it, whether there was an actual report done on it.

But there is certain records that we do not have, so I can't

DISTRICT COURT OF OKLAHOMA - OFFICIAL TRANSCRIPT

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00053

say we have everything.

I'm not asking if you have everything, Warden, I'm

asking if you do keep records about those types of things.

If there -- yes, if we see it as a reason to keep it.

There are certain things that happen in that facility

that, every time it happens, a staff member makes a record,

whether that's a mental health visit or canteen visit, there's

some type of things that require a record every time, correct?

Should be, yes.

Sometimes those records are requested by outside

groups or you might send them to a legal department, things

like that --

Yes.

-- that's what those records are for?

Have you personally interacted with Mr. Cole?

I have attempted to.

Tell us what that means.

What do you mean by

"attempt"?

Basically, to have a conversation with Mr. Cole, to

go to the cell and, like I would do with all inmates, you know

to check.

communication-type interaction was basically during the 35-day

protocol when we started it.

He -- he interacted with me.

Mr.

Cole, with staffing and everything, is pretty consistent.

It's

just kind of depends on him.

The interaction -- basically, interaction as far as

There's some staff members at

DISTRICT COURT OF OKLAHOMA - OFFICIAL TRANSCRIPT

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00054

times he'll communicate with and there's sometimes they won't.

Usually -- if it is something, usually, it's

possibly a canteen issue.

He knows exactly if something's done

wrong with his canteen, so he will express that, you know, to

the canteen officer or the officer himself.

We have a unit manager that he's opened up to a

little bit, you know, within the last few months also.

just depends on -- on Mr. Cole.

So it

You don't sit down and have lengthy conversations

with him out on the yard or anything, right?

No.

Mr. Cole has been in -- is in a wheelchair, correct?

Yes, he is.

He's fairly lean?

Yes.

Has messy, unkempt hair and beard?

I would not say that.

It depends.

And I think you

could look at that as every inmate at the correctional

facility.

all different ways or -- I think with Mr. Cole, some of the

things that you see, sometimes it may be up, sometimes there's

a headband around his head, sometimes it's scattered.

things that I've seen, especially during the 35-day protocol,

was he was very clean.

it -- he doesn't like want to come out, you know, and do

You may be at a cell one time and their hair's going

He always has been.

The main

He -- we refer to

DISTRICT COURT OF OKLAHOMA - OFFICIAL TRANSCRIPT

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00055

showers and stuff like that, but we always refer to it in

corrections, as I've stated many times, as bird baths, where he

cleans himself like that.

not want to come out.

Some inmates do that because they do

Would you say like using the sink and their hands?

To -- yeah, to wash, and, basically, do those things.

His cell often has food and other assorted items in

it, correct?

Yes.

And explaining that, Mr. Cole is a very -- he's

a little bit more -- it's difficult to say that.

inmates that their cells are emaculate.

that are just not, you know, very clean, sanitary.

Mr. Cole, it's -- it's very odd.

the eating.

So those always worry me because I want, you know, to ensure

our inmates are eating and doing that.

fasting always kind of worries me a little bit, you know,

because some inmates do fast, and they fast for quite a while.

Mr. Cole, when he is fasting, you know, when we deliver the

meals, we try to give him every opportunity, you know, to eat

those meals and so forth.

so...

We have some

We have some inmates

So with

A lot of his is with -- with

He has the religious beliefs, the fasting process.

And with fasting,

He gets most of it off canteen,

Warden, I'm going to stop you there.

There's times

where Mr. Cole will hoard many, many meals in his cell,

correct?

DISTRICT COURT OF OKLAHOMA - OFFICIAL TRANSCRIPT

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00056

At times, there has been where he has done that, and

I think that the process in that is just sometimes Mr. Cole

likes to sleep for the most part --

And that's not my question, Warden.

-- during the day.

Warden, there are food boxes that stack up in his

cell, correct?

I wouldn't say just just enormous, but there is times

where it is left in the hope that, you know, even if he may be

fasting, he may want to eat.

MS. BLUMERT:

nonresponsive.

THE COURT:

Objection, speculation, Judge, and

Well, overruled.

These are

open-ended questions so he's giving an open-ended answer.

(By Ms. Blumert)

Would you consider 147 food boxes

in his cell to be a normal amount?

147 food boxes?

Yes.

MS. BURNS:

Judge, objection to the form of the

question.

actually -- I'm not sure if this is even an actual question

based on actual facts.

I don't know if this is a hypothetical or if this

THE COURT:

What's the legal basis for your

MS. BURNS:

Form of the question.

objection?

DISTRICT COURT OF OKLAHOMA - OFFICIAL TRANSCRIPT

APPENDIX C

00057

THE COURT:

THE WITNESS:

sure exactly how you're interpreting that.

there 147 food trays from food service in there, yes.

there's times when inmates will order their canteen, sometimes

it'll go over the allowed amount, sometimes, you know, it's in

that amount.

like that with the canteen items.

canteen and it may not be touched for several, several days on

that.

Overruled.

When you say 147 boxes, I'm not

If you say, is

But

So when we say 147, there probably is some things

Sometimes he will order

So -Q.

(By Ms. Blumert) Warden, are you aware of whether at

any point Mr. Cole had 147 meals in his room?

Meals.

Not canteen.

Meals, I am not aware of that.

Your knowledge of Mr. Cole comes from things your

staff have told you and from records, right?

The majority of it, yes.

Inmates in OSP can have visitors, right?

Excuse me?

Inmates -- and I say OSP, Oklahoma State

Penitentiary, the facility you're over -- inmates at OSP can

have visitors, correct?

Yes, ma'am.

Unless there is some security reason for

that or a visitor has been suspended.

But, yes, they can.

And to your knowledge, Mr. Cole would decline visits

DISTRICT COURT OF OKLAHOMA - OFFICIAL TRANSCRIPT

APPENDIX C

00058

often, correct?

Yes.

Visits from his lawyers?

Yes.

Visits from doctoral staff?

Yes.

MS. BLUMERT:

THE COURT:

May I have a moment, Judge?

Yes.

(By Ms. Blumert)

Warden, we talked a little bit

about the records that you have in the facility and the records

that you rely on.

records in your facility that you did not personally make,

correct?

Yes.

Records that your staff makes?

Yes.

And you would rely on those things -- well, excuse

You have access to -- you have access to

me -- the staff rely on those records amongst themselves to do

their job, correct?

Yes, to an extent.

And you rely on some of those records to do your job,

as well?

Of course.

You would have reviewed files about Mr. Cole as part

Yes.

of this process that we're here about today, correct?

DISTRICT COURT OF OKLAHOMA - OFFICIAL TRANSCRIPT

APPENDIX C

00059

I have reviewed numerous files on Mr. Cole or the

processes.

process was -- looking at Mr. Cole, is what I have determined

in the last few years, both -- both groups or both -- all

attorneys and myself agreed with the -- with the evaluation of

Mr. Cole by Dr. Orth.

that.

agreed to do.

health; I rely on my doctor that talked to me about different

things.

consistent with my staff of the -- how I make my judgment.

I will explain that, if I can.

Is that my main

We all agreed to that.

We all done

I relied extremely on Dr. Orth's report that we all

And I rely on my staff; I rely on my mental

And it's been consistent with Dr. Orth's report and

Some of those records might include letters or

e-mails in there as staff are discussing Mr. Cole, things like

that, correct?

E-mails, no, I don't -- I'm not looking at e-mails.

I don't know -- incident reports, different things like that.

E-mails, I don't look at staff's e-mails.

If there's an e-mail that's extrapolated and put into

Mr. Cole's file, would you see something like that?

If -- if it's extracted, yes.

A lot of times.

And I'm not -- I'm not asking whether you go into

staff's e-mails and look for certain things.

e-mail that has been put into a file of Mr. Cole's, you would

see that in there, correct?

Not necessarily.

If there as an

Unless -- if I'm looking at

DISTRICT COURT OF OKLAHOMA - OFFICIAL TRANSCRIPT

APPENDIX C

00060

particular something on that, I may see that.

If it's

particular things that I'm needing from medical or something

I -- it would be a particular file or particular information

that I'm needing.

So I can't say I would actually see that.

You have the ability to look at that, correct?

The ability to look at it?

Yes.

If it's there, yes.

I'm not asking if it's there.

If something's in a

file, you have the ability go look at that item, correct?

Yes.

Sometimes some of the things that you have might be

correspondence from attorneys, correct?

Some of the things that I have -- that I can look at,

is that what you're saying?

It's sent to me.

Right. But you will get, sometimes, correspondence

from attorneys about inmates in your facility, correct?

Occasionally, yes.

MS. BLUMERT:

THE COURT:

MS. BLUMERT:

Of course.

May I approach, Judge?

Yes.

For the record, I am handing the

witness Petitioner's Exhibits 19 through 23 inclusive.

moment.

(By Ms. Blumert)

If you could peruse those for a

Can I comment on this?

DISTRICT COURT OF OKLAHOMA - OFFICIAL TRANSCRIPT

APPENDIX C

00061

Not yet, Warden.

Do you recognize what these documents are?

I recognize it's -- it's a document that was sent in

2016 to an interim warden at that time.

MS. BLUMERT:

And just for clarification -- I

apologize for the record -- I did not hand the witness Number

23, which I'm doing right now.

documents are?

warden, correct?

(By Ms. Blumert)

Do you recognize what these

These documents are e-mails from Counsel to a

Yes.

MS. BURNS:

THE WITNESS:

THE COURT:

I'm sorry.

What's the objection?

MS. BURNS:

Leading.

And she's trying to lay

THE COURT:

(By Ms. Blumert)

These are e-mails from Counsel to

the warden of OSP, correct?

MS. BURNS:

Well, the objection as to leading is

overruled.

A previous warden.

the foundation for him.

Objection; foundation, leading --

foundation.

He has to provide that foundation.

THE COURT:

sustained.

one.

Same objection, Your Honor; lack of

You can -- the objection's

You can lay a foundation if he's able to provide

DISTRICT COURT OF OKLAHOMA - OFFICIAL TRANSCRIPT

APPENDIX C

00062

documents are?

(By Ms. Blumert)

Do you recognize what these

It looks like it's e-mails to the -- not even the

previous warden, but the warden before that.

What are the dates on those documents?

One's December 15th, 2017.

2017.

One's December 20th,

Previous warden was Terry Royal.

Those are various dates between 2016 and 2017, right?

It's what, ma'am?

Various dates between 2016 and 2017, right?

The ones I see, if there's another one here.

looks like you've got two -- December 20th, 2017 --

Number 19 is --

And excuse me, December 20th.

But it

Well, it looks like

both of these are on December 20th, 2017.

correct?

I'm not seeing a 2016.

Do you have 19, 20, 21, 22 and 23?

I've got -- 19, 23 and 22 here, but 23 is only two

pages.

Petitioner's Exhibit 19 is dated June 9th, 2016,

That's the e-mails.

Okay.

These are all the rest of them.

Okay.

Where are the others that I handed you?

You have in front of you Petitioner's 19, 20,

21, 22 and 23, correct?

DISTRICT COURT OF OKLAHOMA - OFFICIAL TRANSCRIPT

APPENDIX C

00063

I do.

And the date on Number 19 is what?

It's June 9th, 2016, to Kevin Duckworth, Interim

Warden.

And the date on 20 is May 18th, 2016?

May 18, 2016, yes.

21 is January 11th, 2016?

Yes, ma'am.

(Court reporter requests clarification.)

THE WITNESS:

2016 was from Warden Chrisman.

(By Ms. Blumert) And I'll get to that, Warden.

I'm

just asking you what the dates are right now.

Number 22 is December 15th, 2017, correct?

Yes.

And Number 23 are dates in December of 2017, correct?

Yes.

You were not warden during these letters, correct?

No, ma'am.

But your facility, your office, would maintain

correspondence that the warden receives as the position,

correct?

record of.

Yes.

These particular things, we should have a

I have not seen these particular documents, but...

You don't have -- there's no policy in the warden's

office of destroying correspondence that you would receive,

DISTRICT COURT OF OKLAHOMA - OFFICIAL TRANSCRIPT

APPENDIX C

00064

right?

No.

You don't have policies of ignoring them?

A policy of ignoring?

Ignoring correspondence that comes in.

A policy of ignoring them?

You don't have one of those, right?

No.

Okay.

these are not in your files, right?

the files.

No.

There's no reason that they're not somewhere in

No, I don't.

MS. BLUMERT:

You don't have any reason to believe that

Move for admission of 19 through

23, inclusive.

THE COURT:

Objection?

MS. BURNS:

Your Honor, I'm going to object as

to the lack of personal knowledge, lack of foundation as to

trying to introduce these through this witness and also

hearsay.

THE COURT:

Tell me how that's an exception to

the hearsay rule since it's not a document generated by his

facility.

MS. BLUMERT:

Judge, they're documents that he

keeps in the course of his business as a government agency

under 2308 Subsection, I believe, 7.

12 OS 2308 Subsection 7,

DISTRICT COURT OF OKLAHOMA - OFFICIAL TRANSCRIPT

APPENDIX C

00065

government records exception.

I'm not indicating that the

warden created these, but, essentially, that he maintains them

as part of his business, that he has them.

he -- the office keeps them, that they review those things, and

that, essentially -- really, though, these are not hearsay.

They're not offered to prove the truth of what's in them.

He testified that

But the point is that the warden is aware of

them and he is -- has -- would be on notice about these

documents and have access to them.

this hearing.

THE COURT:

I disagree with your citation to

2803 Subpart 7.

exception to the hearsay rule.

generated.

That refers back to Subpart 6.

That's not an

These are not documents he

He wasn't even a warden then.

MS. BLUMERT:

THE COURT:

That's the whole purpose of

they're in his record.

No, he wasn't, Judge.

I -- you've made your point that

They're in his record.

Is that what you're trying to prove?

MS. BLUMERT:

Yes.

Just that he has -- these

are the records he has access to because the whole hearing is

about what he knows.

THE COURT:

Well, they're -- I think that

point's been made.

if that's your point, I'm -- I've got that written in my notes.

But we're in 2022, these are from 2016, so

MS. BLUMERT:

So for clarification, Judge, are

DISTRICT COURT OF OKLAHOMA - OFFICIAL TRANSCRIPT

APPENDIX C

00066

they --

THE COURT:

MS. BLUMERT:

THE COURT:

Warden, do you have Exhibits 19

THE WITNESS:

is.

My bad.

THE COURT:

I do.

21, I don't.

(By Ms. Blumert)

Yes, sir.

Warden, some of the records that

your facility keeps are mental health records, right?

I -- I do not keep the mental health records.

health would keep those records of that.

mental health records in our areas.

Oh, there it

I do have them.

Okay.

through 22 -- 23?

They are not admitted.

I do not keep the

And, Warden, I'm not asking if you keep them.

Your

facility keeps those, correct?

Yes.

You keep those --

They should.

-- keep those to run your facility and provide

Mental

medical treatment to inmates, right?

Yes.

Right?

Yes.

The folks who work in those units are the ones that

make those records?

DISTRICT COURT OF OKLAHOMA - OFFICIAL TRANSCRIPT

APPENDIX C

00067

Yes.

They keep notes about things like visits with

inmates?

Yes.

And to your knowledge, in March of this year,

Mr. Cole was taken to the OSU Medical Center to have his brain

scanned?

Yes.

If I estimated March, would that jive with your

understanding?

Probably pretty close to that.

If I told you March 30th, would you have any reason

I'm not correct on those -- exactly sure on

date.

to disagree with that?

Well, I wouldn't have a reason to disagree with you,

but I couldn't tell you if you were correct or not on the date.

Mr. Cole is regularly seen by physical medical

doctors and mental health doctors, correct?

Yes.

Do you know how often?

Their protocol, the majority of time, is when they

see -- when they see inmates is, basically, if there is an

issue or something that they have to do -- check per their

protocol.

I'll just use -- throw this out there to get an understanding

If there's an inmate that's having an issue -- and

DISTRICT COURT OF OKLAHOMA - OFFICIAL TRANSCRIPT

APPENDIX C

00068

of it -- but, naturally, if there's an inmate that has cancer,

that they have to do certain treatments on that.

different protocol for every inmate.

There's a

I don't know how many times they have actually

went to check on Mr. Cole.

I do know what my doctor has told

me, the physical doctor, about Mr. Cole and his evaluation of

Mr. Cole.

his observations of him through the years and actually here

recently.

And that's not me reading the documents; I went with

What doctor's that?

Dr. Payne.

So you -- just to make sure I understand your

testimony correctly, you're saying that you reviewed records of

Dr. Payne's evaluations of Mr. Cole or you spoke with

Dr. Payne?

I spoke with Dr. Payne.

Okay.

And as you spoke with him, were you guys sort

of looking through records together?

No, Dr. Payne does that.

Like I said, I can't tell

you if he does it for eight hours a day or what it is.

had a conversation with Dr. Payne -- actually a few

conversations -- but the main --

question is:

sees Mr. Cole?

But I

Let me stop you, Warden, and kind of back to the

Do you know how often a doctor like Dr. Payne

DISTRICT COURT OF OKLAHOMA - OFFICIAL TRANSCRIPT

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00069

No, I don't know the exact times, no.

Do you know how long the visits are?

Well, with -- with Mr. Cole, it's usually -- kind of

depends on what he's checking for.

So the question is:

No, I couldn't tell you how long they are, no.

Do you know which providers see him?

With Mr. Cole, the providers that do see him is

Do you know how long the visits

are?

mental health, and, basically, the doctors.

any mental health medication and has always refused that.

there's -- even with the mental health piece of it, I think our

processes are, basically, we -- we do above the standard for

what it would normally be.

And let me stop you, Warden.

Mr. Cole's not on

The question is:

you know who sees him?

Are you talking about the people or the positions?

Both.

Do you know either of those things?

Yes.

I actually -- the mental health person that

does most of the visits name's Tina Fuller.

I've also had

many -- or discussions with her, you know, about she sees with

Mr. Cole.

I've actually got --

And she's not the only doctor, correct?

No, there's -- there's other doctors.

We had a --

we've just had one that retired that --

DISTRICT COURT OF OKLAHOMA - OFFICIAL TRANSCRIPT

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00070

And there's other staff that sees him, as well?

Staff, yes.

But we have all staff that do checks

with corrections officers to canteen officer to unit managers

to case managers.

MS. BLUMERT:

THE COURT:

MS. BLUMERT:

Yes.

I'm handing the witness

Petitioner's Exhibit 26.

Warden?

has retired.

May I approach, Judge?

well?

(By Ms. Blumert)

Do you recognize these documents,

It's a mental health narrative from Dr. Smash, who

But do I need to read it?

Do you recognize those and the pages behind it, as

It's a, I believe, five-page document.

As far as recognizing the documents, yes.

Now, what are these documents?

These are clinical notes from Dr. Smash.

And a lot

of that is what they see when they actually do their checks,

different things like that.

you're liable to see --

So it's -- one thing with these,

Who creates these documents, that you can tell?

Well, this right here is the mental health

professional, or one of them.

And who is that?

Dr. Smash.

DISTRICT COURT OF OKLAHOMA - OFFICIAL TRANSCRIPT

APPENDIX C

00071

Who creates the other ones?

Tina Fuller.

We've got -- trying to think of her

last name -- Angela, I can't remember her last name, but could

actually create the mental health piece note like this.

Can you look on that and tell who wrote that note for

each one?

I got Dr. James Smash.

It's got -- I think it

says -- my eyes are not real good -- Dennis Deakins, I believe,

and I've got, on this one -- I'm trying to read what it says

here.

name.

Oh, Patty Stem.

your facility?

I was looking for where she put her

Do you recognize those names as folks that work in

Recognize the names?

Yes.

MS. BLUMERT:

Move for admission of Exhibit 26.

THE COURT:

How many total pages is Exhibit 26?

MS. BLUMERT:

I believe it's five, Judge.

Five

pages.

THE COURT:

The reason I ask, on my Exhibit 26,

there's a tab that also has 27.

MS. BLUMERT:

apologize, Judge.

Is that separate?

Yes.

We added that late.

It's the five pages of 26.

MS. BURNS:

I have no objection, Your Honor.

THE COURT:

No objections?

is it Exhibit 26 through 27 or is it --

Okay.

Exhibit -- so

DISTRICT COURT OF OKLAHOMA - OFFICIAL TRANSCRIPT

APPENDIX C

00072

MS. BLUMERT:

the confusion, Your Honor.

separate.

THE COURT:

Just Exhibit 26.

I apologize for

26 is five pages long.

27 is

Is 27 the mental health service

levels classification?

MS. BLUMERT:

THE COURT:

Okay.

MS. BURNS:

I'm sorry, Your Honor.

don't -- I'm not sure I have an objection.

discussing the mental health progress notes from 3/29 of '22,

it's marked as 26.

This tab is on the wrong

exhibit.

I don't -- I

I thought we were

Is that -- but it's only one page.

THE COURT:

Yes.

Yeah.

Take your -- that tab that's

on your document --

MS. BURNS:

Okay.

THE COURT:

-- take it off and move it to mental

health service classification.

So the record she's submitting

it five pages in -- five total pages.

MS. BURNS:

I'm good with that, Your Honor.

THE COURT:

Those are admitted without

objection.

(By Ms. Blumert)

Okay.

The first page there, the

one that has the sticker on it --

Yes.

-- is a mental health progress note for Ben Cole,

DISTRICT COURT OF OKLAHOMA - OFFICIAL TRANSCRIPT

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00073

correct?

Correct.

Created by James Smash, Ph.D., the clinical

coordinator?

Correct.

This is on March 29th, right?

Yes, it is.

Is it the day before he's taken for his brain scan at

OSU Medical Center, right?

Like I said, it is around that time.

I couldn't tell

you the exact date on the scan.

That's fair.

What does that paragraph say?

that's yellow.

Do you want me to read it?

Yes.

Inmate was seen in his cell.

The part

He was being moved to

medical for a shower.

filthy.

with liquids at the base of the floor.

food that he had not turned in for pickup.

food unopened and food opened in the corner by the bunk that he

has -- that he doesn't sleep in.

Inmate cell was -- was moderately

The door floor had area condiments, bottles filled

There were trays of

He had more trays,

Inmate was unable to fully position himself in

the wheelchair without help from security officers.

clothing looked dingy and perhaps dirty.

Inmate's

However, his

DISTRICT COURT OF OKLAHOMA - OFFICIAL TRANSCRIPT

APPENDIX C

00074

fingernails were clean and so was his hair.

of debris and looked combed as well as brush -- brushed, excuse

me.

His sweats and top were dingy looking.

His beard was free

There

were no unpleasant odors, surprisingly.

The next note -- I think you may have, kind of, mixed

your pages up.

The note I'm referring to, for everyone, is from

March 27th, 2019, which is the date just below that long line.

This one is a wellness center weight check for Mr. Cole,

correct.

You -- the 3/27?

Yes.

Do I need to read it?

No.

Right next --

Just right next to the date, it marks it as a

wellness center weight check, correct?

It's the very --

I think I'm looking at the wrong one.

I don't --

I've got a 3/27, but I think there was another one here, 3/27.

Not sure I'm looking at the right one that you're talking

about.

Yes, you are.

And just right next to that date at

the very top -A.

Yeah.

Yes.

Wellness check, yes, wellness and weight

check.

Done by Dr. Deakins?

DISTRICT COURT OF OKLAHOMA - OFFICIAL TRANSCRIPT

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00075

Yes, ma'am.

Where he makes a note, third line:

I reviewed his

mental health and medical entries to 2014, essentially,

unchanged.

Correct, it says that?

Yes.

The third page -MS. BLUMERT:

April 3rd, 2017, entitled:

Mental health progress note soap.

THE WITNESS:

And for everyone, it is from

you know?

(By Ms. Blumert)

Soap, yes.

What does soap mean, Warden?

Is it an acronym for something, soap?

What does "soap" mean, is what you're asking?

Yes.

Soap is a -- an item to clean your body with.

So that -- it just means the word "soap," it's not an

Do you know?

acronym for anything?

Not -- I don't know.

You're not positive?

No.

Okay.

I know what I use soap for.

use soap for.

I know what most people

This particular note was signed by Patty Stem, the 2

coordinator, correct?

DISTRICT COURT OF OKLAHOMA - OFFICIAL TRANSCRIPT

APPENDIX C

00076

Correct.

And cosigned by a variety of other providers, which

we note at the bottom?

Yes.

Cosigned electronically, yes.

And in this one, Ms. Stem notes, when she's cleaning

him, the things that he's talking about, correct, in that

second line here?

comb?"

He's saying, "wash and comb," "wash and

Yes.

And he repeats that and also says, "sink and toilet;"

those are the things that he's talking about?

Yes, ma'am.

Ms. Stem asked him about the hoarded food in his cell

and he didn't respond, correct?

Correct.

The objective data, the little --

At the canteen part, yeah.

And the objective data below, it notes that he

appears disheveled and has an anxious mood, correct?

Yes.

A blunted affect and mumbled speech and poverty of

speech, correct?

Yes.

The 4th page of this exhibit.

MS. BLUMERT:

Turn everyone's attention to the

DISTRICT COURT OF OKLAHOMA - OFFICIAL TRANSCRIPT

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00077

narrative from April 3rd, 2017, also.

(By Ms. Blumert)

short.

you see that one, Warden?

It's the second one.

It's very

That's a mental health progress narrative, correct?

Yes.

And that one indicates that the inmate had 147 kosher

meals in his cell and canteen foods, correct?

Yes.

But I'd also like to add to that, this is in

2017, so I would have not known -- or I didn't have any

knowledge --

Warden, that's what the record says, right?

Yes.

And the final page of this exhibit is a record from

Correct?

March 11th, 2014.

Are you -- is that the one that's got "soap" too?

Yes.

This is one's signed by Dr. Kirby and cosigned by the

Okay.

chief medical officer, correct?

Yes, one -- one was retired.

That's who writes it, correct, Warden?

Yes.

3/11/2014, correct?

Yes.

And down towards the bottom of that yellow

portion, there's an italics heading called:

subjective findings.

Comments on

DISTRICT COURT OF OKLAHOMA - OFFICIAL TRANSCRIPT

APPENDIX C

00078

And this notes indicates that the mental health

level of zero appears to be incorrect.

level of B at Age 39.

should not be zero.

He has a mental health

So his mental health level at Age 48

Do you see the part where I'm reading?

Yes, I do.

And so Ms. Stem indicates at January 14th he had a

diagnosis suggesting -- of a psychotic disorder, correct?

I do see that.

He was not fully psychotic that day, but did refuse

to speak and had oppositional behavior consistent with the

possibility of paranoid thinking, right?

I see that, yes.

His conduct could also indicate his social isolation

that is typical of schizophrenia?

Yes, typically.

And that they would continue to monitor his medical

status -- or his mental health status, excuse me, right?

Correct.

That note talks about something that's the mental

health levels; are you familiar with those, Warden?

With mental health levels?

Yes.

Somewhat.

That they exist in the facility for classifying the

DISTRICT COURT OF OKLAHOMA - OFFICIAL TRANSCRIPT

APPENDIX C

00079

amount of treatment an inmate gets, right?

Yeah.

And the majority of it is exactly for -- not

exactly -- but is for the treatment and how they are treated

and what kind of medication that they do get.

To help the staff know which ones are higher need or

slower need or what types of needs, right?

Correct.

MS. BLUMERT:

THE COURT:

MS. BLUMERT:

May I approach the witness, Judge?

Yes.

I'm now handing the witness

Exhibit 27, which is the last two pages of your binder.

(By Ms. Blumert)

Do you recognize that document,

Warden?

Yes, I do.

That is -- tell the Court what that is.

This is -- basically, what I'm looking at is the

levels of mental health.

level might come to from a professional -- mental health

professional on what type of treatment that they may need.

It all has a description on how each

And that's a record that you use in the course of

your work at OSP, correct?

Well, it is used for certain things for behavioral

type issues.

or my staff, with the security piece of it, is depending on the

mental health level that may be extreme to where there may be

The thing that would come into play for myself,

DISTRICT COURT OF OKLAHOMA - OFFICIAL TRANSCRIPT

APPENDIX C

00080

different precautions that we need to use with this inmate

that --

Warden.

its day-to-day business, correct?

Sure.

And let me kind of refine the question,

This categorization is something your facility uses in

Well, mental health does it, and they make us aware

of something that would be something that would -- we need to

know security-wise.

MS. BLUMERT:

MS. BURNS:

I have no objection, Your Honor.

THE COURT:

Exhibit 27 will be admitted without

Move for admission of Exhibit 27.

objection.

(By Ms. Blumert)

Warden, Level B in there --

(Court reporter requests clarification.)

MS. BLUMERT:

Which actually

says MH-B (Baker).

(By Ms. Blumert)

Yes.

Okay.

B as in Baker.

Do you see that part?

Indicates that that is a level where someone

requires psychotropic medications?

Yes.

Has current major diagnoses, things like that?

Yes, ma'am.

Requires prescribed scheduled treatment or therapy,

maybe suicide attempts or ideations?

DISTRICT COURT OF OKLAHOMA - OFFICIAL TRANSCRIPT

APPENDIX C

00081

Yes.

And that those folks in that category can be seen on

an outpatient basis, correct?

Yes.

At some point, it's your understanding from those

records that Mr. Cole was on Level B, correct?

Yes.

And at some point that he was moved down to Level A?

Yeah.

And Level A still requires a mental health diagnosis

or treatment at some point, correct?

Yes.

Okay.

And symptoms may be acute or episodic; do you

And not chronic, yes.

see that?

Yes.

MH-0 or O at the top indicates inmates who do not fit

the following criteria, correct?

Yes, ma'am.

So inmates that just don't fit anything that's on

this list, right?

Correct.

And that that last record in 26 indicated that it

looked like his level was zero, but the -- Ms. Stem and the

other doctors indicated that that wasn't correct, right?

Yes.

DISTRICT COURT OF OKLAHOMA - OFFICIAL TRANSCRIPT

APPENDIX C

00082

Warden, in May of this year, you received a letter

from Mr. Cole's attorney, correct?

Mr. Hird?

I'm sorry.

Say that again.

Mr. Hird?

Mr. Cole's attorney, Mr. Hird?

Yes.

mail, correct?

And that letter came by e-mail and by physical

Yes.

MS. BLUMERT:

THE COURT:

hour-and-a-half.

now is 10:30.

the record.

May I have a moment, Judge?

We've been going about an

The Court's going to be in recess.

The time

We'll be back on the record at 10:40.

We're off

(Whereupon, proceedings recessed.)

THE COURT:

Where is our witness?

MS. BURNS:

Okay.

The Court's back in session.

He ran to the restroom, Judge.

should be right back.

THE COURT:

Yes.

you're still under oath.

Warden Farris, I would remind you

You may inquire.

Did we lose a lawyer or -- just be advised the

Court tries to run this on schedule.

And, actually, I'm two

minutes late.

intend to be back on the record at 10:40.

MS. BLUMERT:

So when we take a break and I say 10:40, I

May I proceed, Judge?

DISTRICT COURT OF OKLAHOMA - OFFICIAL TRANSCRIPT

APPENDIX C

00083

THE COURT:

MS. BLUMERT:

THE COURT:

MS. BLUMERT:

was 10:45.

Excuse me.

(By Ms. Blumert)

My apologies.

Yeah, if we go off the record and I

say 10:40, I intend to be back on the record at 10:40.

Yeah, we're waiting on you.

I apologize, Judge.

I thought it

Okay, Warden, I believe we were

talking about the letter you received from Mr. Hird, correct?

Yes, ma'am.

I believe you mentioned that.

And then it came by e-mail and then by physical mail,

correct?

Yes, ma'am.

MS. BLUMERT:

What I did, Judge, is I just gave

the witness the binder so I can just refer to those numbers.

Is that acceptable?

THE COURT:

(By Ms. Blumert)

Yes.

Turn to Tab 1, Warden.

Do you

recognize that document?

Am I looking at the tab wrong?

The document that's behind the tab.

Okay.

But it has, in the bottom right-hand corner, the

It's just got your

list.

yellow Petitioner's Exhibit sticker.

Okay.

Oh, okay.

Yes.

Are you talking about the

DISTRICT COURT OF OKLAHOMA - OFFICIAL TRANSCRIPT

APPENDIX C

00084

e-mail?

Yes.

Okay.

What is that?

What is the document that is

Exhibit 1?

It's -- it's an e-mail with supporting documents that

Mister -- that basically come from Mr. Hird.

And it was an e-mail that you received?

Yes.

When was it sent to you?

May 20th.

Who sent it to you?

Tom Hird.

MS. BLUMERT:

THE COURT:

Any objection?

MS. BURNS:

No, Your Honor.

THE COURT:

Exhibit 1 is admitted without

(By Ms. Blumert)

Behind Tab 2, Warden, do you

Move for admission of Exhibit 1.

objection.

recognize that document, Petitioner's Exhibit Number 2?

Yes.

Do you recognize that document?

Yes.

What is that?

This is a document, basically, from the Public

DISTRICT COURT OF OKLAHOMA - OFFICIAL TRANSCRIPT

APPENDIX C

00085

Defender's Office that was sent to me via e-mail, regular US

Mail and basically outlining the attachments, some of the

affidavits from doctor -- Dr. Hough and some of the

neurologist's report that was kind of tied in together that --

and this was -- basically, I would call it a face sheet for

that.

MS. BLUMERT: Move for admission of Petitioner's

Exhibit 2.

THE COURT:

Any objection?

MS. BURNS:

No objection.

THE COURT:

Exhibit 2 is admitted without

objection.

(By Ms. Blumert)

Do you recall, Warden, those six

documents that are listed there, whether this letter actually

came with those documents?

If I recall correctly, I believe the documents were

with everything.

separate.

I don't think -- I don't believe they come

I believe they all came together.

And you don't have any memory of any one of those

missing, right?

No.

Petitioner's Exhibit 3, flip to that next tab, if you

would, Warden.

Yes.

Do you recognize that document?

DISTRICT COURT OF OKLAHOMA - OFFICIAL TRANSCRIPT

APPENDIX C

00086

I do.

Okay.

This is basically a declaration by Dr. Snyder, who

What is that document?

What's it called?

was -- did the -- the MRI, and basically explaining, basically,

his qualifications.

structure of -- without getting into detail, the structure of

the brain or lesion that he was talking about in the MRI.

And then went into, actually, the

And you reviewed that when you received it, correct?

Yes, ma'am.

MS. BLUMERT:

Move for admission of Petitioner's

Exhibit 3.

THE COURT:

Any objection?

MS. BURNS:

No.

THE COURT:

Are you offering 3 through 6?

MS. BLUMERT:

I believe it's 3 through 8, Judge.

They were all those attachments, and I don't mind admitting

them as a group, if Your Honor would like.

THE COURT:

prefer you did, in that manner.

MS. BLUMERT:

Okay.

(By Ms. Blumert)

Warden, look at the documents

behind Tab Number 4, please.

Just for time purposes, yes, I would

MS. BURNS:

We have no objection to these, Your

THE COURT:

To Exhibits 3 through 8, is there an

Honor.

DISTRICT COURT OF OKLAHOMA - OFFICIAL TRANSCRIPT

APPENDIX C

00087

objection?

MS. BURNS:

No objection, Judge.

THE COURT:

Exhibits 3 through 8 are admitted

without objection.

ones that --

(By Ms. Blumert)

These documents, Warden, are the

Ma'am, did you say 4?

Is that what you said, 4?

Document 4 or --

I did.

Oh, okay.

Those are the documents that came with the letter

But I backed up to 3 through 8 as a whole.

that you received in May, correct?

Yeah.

I hadn't looked at the 5, 6, but from that

list, yes.

And you reviewed those when you received the letter?

Yes.

You read the reports that are detailed in here,

correct?

Yes, ma'am.

I'm sure it probably took a little bit, right?

Yes, ma'am.

And were you able to note in those -- the other

reports that they mentioned or other materials that they talked

about, correct?

Yes.

DISTRICT COURT OF OKLAHOMA - OFFICIAL TRANSCRIPT

APPENDIX C

00088

And in many of those reports, they talk about the

other documents that they relied on in making certain opinions

or findings, right?

Yes.

And that would kind of take a little

explanation, and I don't know if y'all want me to do that.

Well, so some of them -- for example, Number 7, if

you'll flip to that.

That's the competency to be executed evaluation of

Okay.

I'm on it.

Dr. Hough from 2016, correct?

Yes, ma'am.

And in that report, Dr. Hough makes an ultimate

opinion about whether Mr. Cole is competent to be executed,

right?

Yes, he did.

And his opinion is that he is not?

Correct.

Dr. Hough talks about a whole slew of things, but

talks about a bunch of biographical information about Mr. Cole,

right?

Yes, ma'am.

Previous evaluations from other doctors that he

reviewed, correct?

Yes.

And those have mixed results.

Some of those say

DISTRICT COURT OF OKLAHOMA - OFFICIAL TRANSCRIPT

APPENDIX C

00089

competent, some say not competent, right?

Correct.

You don't have all of those reports he referenced,

but you were able to read that he did look at them?

Yes, ma'am.

And he kind of talks through in there what the gist

of that report was, correct?

Yes.

He also notes in there -- he notes some of the

reports that he received from lawyers that reported

difficulties with communicating with Mr. Cole, correct?

Yes.

And -- well, I'm sorry.

I was adding stuff.

Go ahead.

And he also makes notes that he reviewed staff

observations of Mr. Cole, and that's on, I think, Page 7 of

that report?

Yes.

The report's pretty long, but there's page numbers

I'm not sure what page.

and that is on Page Number 7, that he notes he reviewed records

that staff --

With the prison staff, yes.

Yes.

Staff of the prison -- excuse me, notes that

the staff at the prison had made.

He also notes on Page 9

notes from some cellmates, statements that they made about him

staying to himself or being kind of nutty or moody?

DISTRICT COURT OF OKLAHOMA - OFFICIAL TRANSCRIPT

APPENDIX C

00090

Correct.

Dr. Hough also noted the -- the tumor in Mr. Cole's

Third paragraph, yes.

brain, correct, or excuse me, the lesion?

The legion lesion, yes.

And that is something that you also saw in

Dr. Snyder's report?

Yes.

And that's the bulk of Dr. Snyder's report, is

discussion of that brain lesion?

Correct.

And both Dr. Snyder and then Dr. Hough notes that

it's kind of how that lesion affects a person's behavior or

their brain, right?

Yes.

They did have that interpretation of some of

the things that -- that they thought could do that.

that I don't think's ever been proven, but in their thought

process.

Right.

Nothing

As to -- to the best of their knowledge, this

is their understanding of what it can do to a brain, right?

Correct.

Dr. Hough also noted that there was a lack of

schizophrenia treatment for Mr. Cole, right?

Yes, ma'am.

There -- he did state that, but just to

open up on that, he was never classified or never diagnosed

with schizophrenia.

We can't --

DISTRICT COURT OF OKLAHOMA - OFFICIAL TRANSCRIPT

APPENDIX C

00091

Well, now, there are -- there are folks in here that

did diagnose him with schizophrenia, correct?

I've -- all's I've -- I've seen possibly

schizophrenic, schizophrenic tendencies, but the full

assessment of being an actual schizophrenia, if I missed it, I

did, but I have not seen a full fledged diagnosis of

schizophrenia.

MS. BLUMERT:

THE COURT:

(By Ms. Blumert)

May I have a moment, Judge?

Yes.

If you will flip to Exhibit 4, and

flip to Page 4, which they're kind of cut off, but it's the

last page of that exhibit, in Subparagraph 14.

Now, I'm looking at Exhibit 4, correct?

Yes.

Correct.

So this is the same doctor whose report we were just

And it's Dr. Hough's addendum.

I seen which one -- what number I'm looking

at.

talking about, right?

Right.

I was just seeing what number you were

referring to on it.

And there's -- the report's broken out by paragraphs,

and there's Paragraph 14; do you see that?

That's what I was needing.

And Dr. Hough indicates that his current observations

Okay.

were consistent with his previous observations, right?

DISTRICT COURT OF OKLAHOMA - OFFICIAL TRANSCRIPT

APPENDIX C

00092

Current were consistent -- yes.

And what you understand from reading these reports is

that Dr. Hough had been able to meet with Mr. Cole on a few

occasions; other occasions he was unsuccessful, right?

I would -- I wouldn't call any of them successful,

meetings with doc -- I know the attempt was there, but I don't

know that he was successful in what you'd call a meeting with

him.

I'm still not seeing --

oh, okay.

Okay.

And I'm reading "consistent."

There's things

that relay that I've not seen anything where there is a

diagnosis of that.

He's --

Page 6 -- excuse me -- Exhibit 6, Page 4, which is

Dr. Hough's evaluation.

On page 4 of Exhibit 6, this is his

addendum to his eval that was in Exhibit 7.

updated opinions on Page 4, Number 1, he says:

diagnosed with chronic and persistent schizophrenia that is

extreme in severity."

And under his

"Mr. Cole is

Do you see that there?

Possible.

Say that again.

Well, he's got possible treatment to express a

Possible trial of treatment.

schizophrenic condition.

Okay.

Well, on Page 4, it says:

"Mr. Cole is

diagnosed with chronic and persistent schizophrenia that is

extreme in severity," correct?

It says that?

I'm not asking

DISTRICT COURT OF OKLAHOMA - OFFICIAL TRANSCRIPT

APPENDIX C

00093

you to make an opinion about it.

I know, I'm not seeing it.

I guess I'm looking

wrong.

Tab 6, Page 4.

THE COURT:

That's what it says.

Counsel, is Dr. Hough going to

testify?

MS. BLUMERT:

No, he's not, Judge.

The Court

indicated that it did not want to hear from experts it has

reports from.

THE COURT:

MS. BLUMERT:

We have no more witnesses.

THE COURT:

Okay.

(By Ms. Blumert)

Do you see that Exhibit 6, Page 4,

right?

Exhibit 6, Page 4.

Okay.

Just

the warden.

But do you -- who are your

other witnesses?

Right.

I'm on that, yes.

Point Number 1 at the top says: "He's

diagnosed with chronic and consistent schizophrenia," correct?

Yes, that's what Mr. Hough said, yes.

And then Number 3, he talks about the documented

brain lesion, correct?

Correct.

MS. BLUMERT:

THE COURT:

May I have a moment, Judge?

Yes.

DISTRICT COURT OF OKLAHOMA - OFFICIAL TRANSCRIPT

APPENDIX C

00094

(By Ms. Blumert)

kind of jumping around.

Warden, in Exhibit 7 -- I know I'm

Bear with me.

Exhibit 7 is the competency to be executed

evaluation by Dr. Hough that we talked about a little bit

already, correct?

Correct.

And on Page 4 of that, Dr. Hough indicates in the

third paragraph, the large section of text, that he's --

Page 4, you said?

Page 4.

Okay.

Exhibit 7.

Dr. Hough indicates that he relied on or

reviewed an evaluation by Dr. Morris.

2015?

Yes.

And Dr. Morris in there had met with Mr. Cole and had

written a report about those meetings and his diagnoses,

correct?

Yes.

And Dr. Morris indicated he'd given him a

schizophrenia diagnosis also, correct?

I don't understand the wording on that, but, in 2009,

he opened the diagnosis of schizophrenia.

And Dr. Hough was reviewing that and incorporates

DISTRICT COURT OF OKLAHOMA - OFFICIAL TRANSCRIPT

APPENDIX C

00095

that into his report, right, the statements from Dr. Morris?

Yes.

You received all these reports in this letter on

May 20th, correct?

I believe that was the day.

And May 25th you received another e-mail from

Mr. Hird, correct?

Not sure on exact date, but yes.

Sometime after that?

Yes.

I'm going to turn your attention to Exhibit 9.

you'll flip to that one.

you said you received?

Does that look like the e-mail that

It looks like the e-mail.

I can't -- I can't say I

remember this exact e-mail, but it looks like, yes.

You don't notice anything about it that's changed or

different from your memory, correct?

Well, he states that basically, on this, there are

supporting documents on it and stuff, so -- "Please find a

letter with additional supporting documents per our request."

Sure.

You just -- you received this e-mail that just

says this as that text, right?

Yes.

MS. BLUMERT:

THE COURT:

Move for admission of Exhibit 9.

Any objection?

DISTRICT COURT OF OKLAHOMA - OFFICIAL TRANSCRIPT

APPENDIX C

00096

MS. BURNS:

MS. BLUMERT:

No, Your Honor.

And the tab right after that,

Petitioner's Exhibit --

THE COURT:

Exhibit 9's admitted without objection.

MS. BLUMERT:

(By Ms. Blumert)

Hang on.

Let me complete my record.

I apologize, Judge.

Warden, if you'll flip to Tab 10.

Do you see that document there?

It's one page.

Yes.

What is that document?

It's -- it is an e-mail that's basically referring to

the MRI by Dr. Snyder.

It -- was it a letter in the mail or an e-mail?

I think -- if I remember right, I think I got both.

The one we just looked at --

I know I got a FedEx on it too, but I think I believe

it was e-mail too.

You've seen this letter that we're talking about?

Yes.

MS. BLUMERT:

THE COURT:

Any objection?

MS. BURNS:

No, Your Honor.

THE COURT:

Exhibit 10 is admitted without

Move for admission of Exhibit 10.

objection.

(By Ms. Blumert)

And when you received that letter,

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00097

it indicated to you that there was attachments with it,

correct, some supplemental documents?

Yes.

If you'll flip to Tab 11, does that look like the

documents that you received with it?

Yes.

MS. BLUMERT:

And I remember this document.

For the record, I'm drawing the

warden's attention to Petitioner's Exhibit 11.

(By Ms. Blumert)

What is that document, Warden?

It's the declaration of Travis Snyder to basically --

It's a second one, a second declaration?

Yes.

But it's explaining basically what -- his

professionalism, what he's done basically in his past, and he

gives -- he gives also an update kind of on the lesion and

different things and trying to explain a little bit about the

the numbering system and different things with the -- with the

lesion.

So...

And there's some diagrams that were attached at the

back of it, correct?

When you say "diagrams," it was basically pictures of

the brain, basically, with different color system on it.

Do you see the last three pages of that Exhibit 11,

are those the ones that you received?

Let me look here.

MS. BLUMERT:

Yes.

Move for admission of Exhibit 11.

DISTRICT COURT OF OKLAHOMA - OFFICIAL TRANSCRIPT

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00098

THE COURT:

Any objection?

MS. BURNS:

I have no objection, Your Honor.

THE COURT:

It's admitted without objection.

(By Ms. Blumert)

Warden, I'll draw your attention to

Petitioner's Exhibit 12, which is behind Tab 12.

What is that document?

This is mail that came -- believe it came from e-mail

and regular mail, but, basically, the requesting on, basically,

the information from Dr. Hough that we -- that I proceed with

the competency hearing to put forth.

Well, that letter in Exhibit 12 you received on

August 1st -- well, it's dated August 1st, correct?

Yeah, but I can't say -- I do not know the exact

You mean the date that you received it?

I don't know the exact date that I seen it.

date.

I just

can't -- I don't remember that because sometimes something may

come and I may not see it until possibly a day later or --

Sure.

That's fair.

actually looked at it, that's what you're saying?

Right.

Okay.

You can't say the date you

It's dated August 1st, so you would not have

read it before that, to your understanding, right?

I don't know how I would have.

But -- unless it was

sent with a wrong date put on it.

DISTRICT COURT OF OKLAHOMA - OFFICIAL TRANSCRIPT

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00099

You don't disagree with that date, right?

You don't have any reason to disagree with that

Excuse me.

date?

No.

MS. BLUMERT:

THE COURT:

Any objection?

MS. BURNS:

No objection.

THE COURT:

Be admitted without objection.

(By Ms. Blumert)

And that exhibit talks about

receiving another report from Dr. Hough, correct, a supplement?

Yes.

Okay.

But the supplement was responses -- or

responses to Dr. Orth.

Move for admission of Exhibit 12.

Is that what you're talking about?

Did you receive that?

Flip to Number 13, Petitioner's Exhibit 13.

What do you see on that document?

What is that?

It's basically almost like a resume, I guess you'd

say, but it was from Dr. Hough and explaining his credentials.

Well, what else is in that?

Basically, some of the stuff, the evaluations that he

has done in the past, not just what -- what his qualifications

were, but some of the things he has done in the past and some

of the things that he -- a few of the things with OSP

Corrections Center.

So...

He also talks in there about his evaluation of

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00100

Dr. Orth's report, correct?

Correct.

MS. BLUMERT:

THE COURT:

Any objection?

MS. BURNS:

No objection.

THE COURT:

Exhibit 13 is admitted without

Move for admission of Exhibit 13.

objection.

(By Ms. Blumert)

And you were able to review

Exhibit -- or review the contents of that exhibit when it

arrived to you, correct?

Yes.

And in that report, Dr. Hough goes through Dr. Orth's

report, right?

Correct.

And he talks about his critic of the report?

Correct, yes.

Again, I can't say the exact day, but yes.

Yes?

Yes, I had that in both reports from

Dr. Orth and Dr. Hough.

That he ultimately says that Dr. Orth should be

relied upon with a high degree of caution, if at all, right?

Correct.

And he also -- in this supplemental, he attaches some

DOC from your facility?

Correct.

Excuse me.

Correct.

DOC records from your facility?

DISTRICT COURT OF OKLAHOMA - OFFICIAL TRANSCRIPT

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MS. BLUMERT:

Exhibit 13.

THE COURT:

I'd move for admission of

(By Ms. Blumert)

It's been admitted.

Warden, I want to draw your

attention to Tab 15, Petitioner Exhibit 15.

this document?

Yes.

Do you recognize

This is -- can't remember the exact date I got

it on.

It was in July.

But, yes, it's from Dr. -- the report

that was sent to Judge Frizzell from Dr. Orth.

correct?

Yes, I did.

And be fair to say that this is Dr. Orth's report of

But you got -- and you reviewed this document,

his evaluation?

Is this -- that I'm looking at now?

Yes.

I assume.

MS. BLUMER:

Move for admission of Exhibit 15.

THE COURT:

Any objection?

MS. BURNS:

No, Your Honor.

THE COURT:

Be admitted without objection.

(By Ms. Blumert)

This is the report that, as you

understood it, was made by court order of Judge Frizzell in the

Northern District, right?

Correct.

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00102

By joint agreement of the parties that asked for it?

Yes, it was agreement on everyone for this --

Agreed not for Dr. Orth specifically, but for an

evaluation, right?

Correct.

And you know that because you've reviewed the court

order, as well?

Yes.

I'm going to draw your attention to Tab 14,

Petitioner's Exhibit 14.

And, Warden, Exhibit 14 looks like

the court order for that report, correct?

Correct.

Warden, what did you do in response to seeing that

letter and the supplements you received from Mr. Hird?

When I received the information from Mr. Hird?

Are

you talking about everything or just one particular item from

Mr. Hird?

As you received all those documents, what did you do

in response to that?

Reviewed them.

There's -- there's times within our

day that we can -- I can possibly say I'm going to be looking

at these documents and possibly spend four or five hours

reviewing documents.

get to it 30 minutes and maybe have to review from home.

with documents on these, I reviewed them as quickly as I

There's days that I may be able to just

But

DISTRICT COURT OF OKLAHOMA - OFFICIAL TRANSCRIPT

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00103

possibly could.

But you ultimately -- you read through those?

Yes, ma'am.

You also reviewed records from the Department of

Yes, ma'am.

Corrections, specifically the penitentiary that you're over,

correct?

I reviewed -- with Mr. Cole, I reviewed -- I didn't

go back and look, pull mental health records back from 2003,

2004.

evaluations from my staff, from -- I looked focusedly on the

court-appointed -- or excuse me, not court-appointed, but the

court process where they named a person to look at -- evaluate,

which was Dr. Orth, so --

I based most of -- majority of my stuff on my

How come?

Because that's who everyone agreed to do.

Why that one?

That's who

y'all agreed to do, as we did.

Was there someone that told you to pay more attention

to that one?

No.

I paid attention to all of them.

But when you

look at it and you're trying to balance some things out as

basically I have to do as an administrator, I look at, hey, if

there's an agreement with both parties and here's where we are,

naturally, that's going to be the one that's probably the head

of it, because it is agreed by both parties.

you'd agree with it, we'd agree with it.

Y'all -- yours --

DISTRICT COURT OF OKLAHOMA - OFFICIAL TRANSCRIPT

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00104

So, naturally, I looked at the other reports.

I'm not saying that.

it's one doctor criticizing another doctor and how they did

things.

had a personal -- or he had -- was able to communicate to get

the things he needed to make a proper diagnosis.

me, it's not whether -- I've got to do the right thing, try to

make the right decision on everything.

up here and say everybody goes to the death sentence or

anything like that.

have to balance those things.

I also looked very heavily in which doctor actually

That's not -- that's not what I do.

criticizing Dr. Hough.

So it -- to

I'm not going to come

And we -- that's what we had.

But what I found in both -- both reports,

So I

We had Dr. Orth

We had Dr. Hough criticizing Dr. Orth.

So you were looking at those and trying to kind of

make a value judgment of which one seemed more correct; is that

fair?

MS. BURNS:

form of that question.

issue in this case.

Judge, I'm going to object to the

I think that that goes to the ultimate

I would ask for her to rephrase.

THE COURT:

Objection's overruled.

You can -- you can answer, if you have an

answer.

(By Ms. Blumert)

Please.

As you looked through those reports, you were kind of

Do you need me to re-ask it?

DISTRICT COURT OF OKLAHOMA - OFFICIAL TRANSCRIPT

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00105

trying to decide which one seemed more valuable or more correct

to you; is that fair?

It's fair to an extent.

But when you look at the

certain things -- and, again, as everyone has stated, I'm not a

mental health professional.

to do is what steps one may have taken that may have given them

a better look at what's going on with that individual.

obvious when you look at it, that, in my opinion, Dr. Orth had

that better piece of it.

And I know that.

But what I have

It's

Now, Dr. Hough would not say those things.

But

when you look at it and you're wondering, how do you come up

with a diagnosis when they -- he doesn't even talk to you, you

know, you're basing it -- you're guessing at it, as I feel like

that was part of this on all of that.

But I do, I have to weigh in all of that,

because there is more than one report, and everything, you

know, contradicts things.

So you were weighing in to figure out which one of

these doctors maybe did it right?

I can't say -- you know, I cannot say who is -- is

the perfect person in this.

decision has to be looked at is what state statutes references.

And --

And also what -- my -- and my

Warden, you're not a mental health professional, like

you said, right?

DISTRICT COURT OF OKLAHOMA - OFFICIAL TRANSCRIPT

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00106

I am, but I'm just explaining, you know, what -- what

I have to look at is is does this inmate know that he has an

execution coming.

executed.

Does he know and understand why he's being

And I think people get -- they go off key with

what is actually state statute on this.

And sure, I'm trying

to weigh in on everything in the world with mountains of this

stuff.

law in those things right there, it's pretty clear to me with

this.

But when I look at state statute, when I look at the

And, like I said, I do have to look at what both

parties agreed to.

And if I felt he was incompetent, I have no problem with moving

that forward.

did not see that.

I'll do the right thing no matter what.

Not a problem at all.

But in this case here, I

So you were looking and you're trying to decide if

you think, based on these, Mr. Cole is competent or not to be

executed, correct?

Well, yes.

Yes.

And so then, ultimately, after you made that -- made

that conclusion, you, under the statute, decided not to refer

Mr. Cole's case to the Pittsburg County DA, right?

I -- correct.

Because it's your understanding that Mr. Cole had not

become insane, as the statute uses those words, right?

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00107

Well, correct.

And, basically, like the -- with the

state statute and how its wording, yes, I believe he is -- from

what I've seen in reviewing all the reports and listening and

relying on my staff to what they tell me on a daily basis, from

my officers, from my case managers, unit managers, from the

mental health, from the doctors, that he is -- he is competent

to move forward.

And then after you made that decision, you drafted a

letter with that opinion, right?

Correct.

And you sent that out to Mr. Cole's attorneys, right?

Correct.

I'm going to draw your attention to Petitioner's

Exhibit 17, behind Tab 17.

Do you recognize that document?

Yep, I do.

That's your letter, correct?

It's -- it is my letter, yes.

And in that letter, you indicate that you were not

going to refer this to the Pittsburg County DA, correct?

Correct.

MS. BLUMERT:

MS. BURNS:

No objection.

THE COURT:

Exhibit 17 is admitted without

Move for admission of Exhibit 17.

objection.

(By Ms. Blumert)

And in the very last paragraph on

DISTRICT COURT OF OKLAHOMA - OFFICIAL TRANSCRIPT

APPENDIX C

00108

Page 2, Warden, you state, about four lines from the bottom,

that it's your determination that Mr. Cole has not become

insane, correct?

Correct.

And so you decline the request to initiate competency

proceedings, right?

Correct.

Is that still your opinion today?

It is.

MS. BLUMERT:

THE COURT: Yes.

MS. BLUMER:

Judge, just for clarification and

housekeeping, did I admit or were 14 and 16 introduced?

THE COURT:

May I have a moment, Judge?

14 was discussed, but not offered.

16 was not discussed nor offered.

(By Ms. Blumert)

Warden, if you'll flip to Tab 14.

I believe we talked about that already.

MS. BLUMERT:

THE COURT:

Any objection?

MS. BURNS:

No, Your Honor.

THE COURT:

14 is admitted without objection.

(By Ms. Blumert)

And Number 16, behind that tab,

Warden.

16 or 14?

16.

And I move for admission of 14.

DISTRICT COURT OF OKLAHOMA - OFFICIAL TRANSCRIPT

APPENDIX C

00109

16.

Okay.

Do you see that report?

I do.

Do you recognize that?

Not right offhand, I don't.

Do you know whether you've reviewed that report?

Well, let me ask you this:

record?

What is that report, for the

Well, basically, it's a, excuse me, consultation, but

it's dated January 21st, 2015.

Done by Dr. Raphael Morris?

Yes.

And that's the report that we talked about Dr. Hough

relying on?

That he referred to, correct --

Yes.

-- he referred to in his reports?

Yes.

Were you able to review that -- the consultation,

Exhibit 16?

At the top, yes.

Yes, I do believe I have this one.

And, again, in

this one here, Dr. Hough referred to Dr. Morris as opened --

it's really hard to determine language -- that he opened --

basically opened the determination -- opened it up for a

DISTRICT COURT OF OKLAHOMA - OFFICIAL TRANSCRIPT

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00110

determination of schizophrenia, if I remember correctly.

MS. BLUMERT:

Move for admission of Exhibit 16.

THE COURT:

Any objection?

MS. BURNS:

Judge, I don't know if -- I don't

believe that there is testimony directly to the point of

whether Warden Farris reviewed this particular document, if

whether it was a factor in him making his determination or

giving his opinion today.

THE COURT:

What's the legal basis for your

MS. BURNS:

Relevance.

THE COURT:

Objection's overruled.

So...

objection?

Dr. Hough

has indicated he reviewed it and it's part of his evaluation.

It will be admitted over objection.

(By Ms. Blumert)

Of which one?

Of Exhibit 16.

Warden, on Page 10 --

I apologize.

On page 10 of that, the

heading is "Conclusions," can you read the first three lines of

that for us.

I continued to open that Mr., or maybe that's

pronounced different, I'm not sure.

Opine.

Okay.

Is it Opine?

I'm not a good dictionary person.

"I continue

to opine that Mr. Cole suffers from Schizophrenia, Paranoid

Type."

DISTRICT COURT OF OKLAHOMA - OFFICIAL TRANSCRIPT

APPENDIX C

00111

Keep going.

Keep going?

"Although I was confident that he

suffered from the diagnosis over six years ago, there is even

more evidence available at this time.

neurolo-" -- excuse me -- "a neurochemical disorder" --

That's good.

Thank you, Warden.

MS. BLUMERT:

Schizophrenia is a

Nothing further.

witness.

THE COURT:

How do you guys want to -- I don't

know how long you'll be on your exam.

11:30.

It's just -- it doesn't matter to me.

So the time now is

We can start that or we can -- we can take a break.

Does anyone need a break?

MS. BLUMERT:

Pass the

I'm okay to keep going,

whatever -- I'll defer to the Court.

THE COURT:

Are you good, Warden?

How about the reporter?

Okay.

You may inquire.

CROSS-EXAMINATION

BY MS. BURNS:

How are you, Warden?

Been better.

Hanging in there?

Okay.

I want to back up and ask

you a few questions on your observations or any communications

that you've had with Mr. Cole recently.

Okay.

And this is

DISTRICT COURT OF OKLAHOMA - OFFICIAL TRANSCRIPT

APPENDIX C

00112

kind of a foundation.

How often do -- what's the protocol as far as

you checking on him to see what his physical and mental state

is?

Well, when we start our -- basically, what we call --

our 35-day protocol, it's daily.

that I have to be gone out of state or whatever, then I assign

somebody that will give me the information; usually it's a

deputy warden to make that check, review different things.

MS. BLUMERT:

the 35-day protocol.

hearing.

If -- if there's some reason

I object, Judge, to discussion of

I think that's outside the scope of this

THE COURT:

Is your objection relevance?

MS. BLUMERT:

THE COURT:

Do you have a response?

MS. BURNS:

I do, Your Honor.

Yes.

The 35 -- he

testified that the 35-day protocol for this particular

execution date was initiated on September 15th, and she

discussed that.

protocol in her directive of the warden --

THE COURT:

She discussed the 35-day notification or the

There's been testimony about the

warden speaking with Mr. Cole within the 35 days, which I

understand to be the time frame for the protocol we're here on,

so the objection's overruled.

Go ahead.

DISTRICT COURT OF OKLAHOMA - OFFICIAL TRANSCRIPT

APPENDIX C

00113

(By Ms. Burns)

You were talking about -- if you can

just explain to the Court, so when the 35-day protocol is

initiated, how -- you said that he is monitored on a daily

basis?

Yes, ma'am.

And what kinds of monitoring does that consistent of?

Basically, with the cell that he is placed in, we

have an officer that sits there and monitors everything,

movement, it's 24/7, monitors everything.

determination.

certain responses that do -- the canteen person may come or the

case manager may come to do their visits, Chaplin, and so

forth.

but it's 24/7 surveillance.

That is a

If, you know, the meal times they get there,

It's a pretty detail of things of what goes on all day,

Okay.

And how often are you provided -- when that

process is initiated, are you provided with daily updates, or

how often are you consulted or do you directly observe

Mr. Cole?

I do my direct observation when I go to there and

usually visit with the officer.

Mr. Cole's one that -- you

know, unless -- unless it may be a canteen issue -- is probably

not going to, you know, talk to you unless you actually go in

the cell and sit down with him and do those type of things.

But with -- with the -- as reviewing the law book, if there's

something that comes up that is of concern -- and, for

DISTRICT COURT OF OKLAHOMA - OFFICIAL TRANSCRIPT

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00114

instance, it may be something going on with them medically --

then they will notify me immediately to figure out what we need

to do with this process and where we need to move forward with

it.

immediately or maybe having to remove him, take him somewhere.

But, basically, to ensure that he is taken care of to the

extreme max.

And it may be anything:

Okay.

I need to get medical up there

And so Mr. Cole's 35-day notification, this

procedure was started on September 15th of this year?

Yes, I believe that was the day, yes.

Okay.

And as part of that, was he -- I'm guessing --

well, let me ask you:

Was he examined by a medical doctor?

Yes.

And who was that doctor?

The medical doctor was Dr. Payne.

Dr. Payne?

Yes.

Did Dr. Payne consult with you about any observations

that he had made of Mr. Cole?

Yes.

And were those helpful in you making your

determination as to the issue today?

Yes, it was.

And what -- specifically, what was helpful for you?

It was helpful to get -- trying get an overall

DISTRICT COURT OF OKLAHOMA - OFFICIAL TRANSCRIPT

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00115

understanding of the thought processes that are going on.

some of the things that we -- we have to do as corrections

professionals, if we're -- if there's, in a ways, games being

played or something that we're trying to be manipulated on a

certain extent.

me -- and, again, I'm not a doctor, but he tried to describe

the test that you do with reflexes, with certain types of

punctures on your legs --

When visiting with Dr. Payne, he informed

MS. BLUMERT:

I object to this, Judge.

THE WITNESS:

-- that he could fully walk.

THE COURT:

And

Hang on a second.

If there's an

objection, you need to discontinue your testimony.

THE WITNESS:

Okay.

THE COURT:

What's your objection?

MS. BURNS:

As to relevance, Judge.

He's

opining about things that occurred even after his letter was

submitted.

is not relevant to the question --

And that, essentially, anything after that letter

THE COURT:

Well, I've seen a report from

Dr. Payne, a progress note in the records that you've

submitted.

MS. BLUMERT:

THE COURT:

I'm sorry.

Say that again.

I believe one of your progress notes

were from Dr. Payne, are they not?

MS. BLUMERT:

I don't think anything after

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00116

August 2nd, that I'm aware.

THE COURT:

Was that prior to the protocol, the

35-day protocol, the one from Dr. Payne?

MS. BLUMERT:

Yes.

September 15th.

that he'd made his decision.

August 2nd is when the warden wrote his letter

THE COURT:

The 35-day protocol started

(By Ms. Burns)

Okay.

Objection's sustained.

When you have check on Mr. Cole,

personally, has he ever interacted with you in any sort of way?

Most of the interactions with Mr. Cole may be -- may

be moving his hand to a certain way, may be moving his head to

an extent.

typical of all the staff.

on what -- what they're going there for.

relay to me about anything.

how he feels and different things like that.

not going to do that.

And never within the cell, and that's pretty

Like I said, there's some depending

Mr. Cole will not

He's not going to talk to me about

He's just not,

Again, Mr. Cole, when we started the 35-day

protocol where I sit down and he's brought out of the cell and

we meet with everybody -- with the mental health professionals

and so forth -- Mr. Cole did communicate and did talk where

there are certain things that, you know, we go over in a 35-day

protocol, and he did -- and --

MS. BLUMERT:

Same objection, Judge, as to

relevance for this time period.

DISTRICT COURT OF OKLAHOMA - OFFICIAL TRANSCRIPT

APPENDIX C

00117

THE COURT:

Sustained.

I want you to stay

within the 35-day time period.

MS. BURNS:

(By Ms. Burns)

Okay.

Yes, Your Honor.

So absent -- we're going to -- I'm

going to ask you questions about anything outside of that

35-day protocol, okay?

communications and observations of Mr. Cole outside of that; is

that right?

Yes.

Okay.

And were those similar to what you had

And -- but you had kind of other

observed, what you just testified about, did he ever

acknowledge you, speak with you, anything like that?

No, not speak --

Okay.

-- no.

It -- you would get something from him,

whether, like I said, a hand raise or something that would

show, you know, he knows you're there, but he's not talking to

you.

there to try to communicate with him.

That's the way I always took it in the times I went up

Okay.

And did it appear that -- those actions that

you've described, did they appear to be in response to

something that you had said or something that your staff had

said?

No.

I think -- I think his response was basically I

know you're there, it's time for you to go --

DISTRICT COURT OF OKLAHOMA - OFFICIAL TRANSCRIPT

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00118

Okay.

-- that's kind of how I looked at it.

Okay.

And how often does Mr. Cole -- how often is he

checked on by anyone other than you?

within the 35-day protocol.

Security does checks.

And I'm talking about not

And outside of security,

security does checks every 30 minutes.

Okay.

And would it be fair to say that if security

had noticed something -- such as him having mental health

issues or seeming to be disoriented or possibly seeing or

hearing things -- that they would have notified you?

Yes.

If there is something that is on a dangerous

level, then -- then I'm -- I will be notified on that because

there will be certain protocol that we will need to do if it

becomes self-harm, if it becomes an assault on someone else or

another inmate or so forth.

things seen at different times.

you're going to be see many different things.

With Mr. Cole, there was many

During 30-minute checks,

Typically, if we walked up there today, you

would see Mr. Cole laying there, may have the TV on, maybe with

his headband on, looking at the wall.

security goes there, there's times where he's up moving around

in his cell, there's times when he's up doing his washing,

there's times when he's up doing his eating.

are things they see.

But as many times as

So -- and those

So, like I said, I relay -- or I look a

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APPENDIX C

00119

lot on what my staff sees and what they relay to me.

Okay.

Outside of the 35-day notification protocol,

has Dr. Snyder -- was he -- is he the doctor that you consult

with at your facility?

Dr. Snyder?

Dr. Payne, I'm sorry.

I was like --

I'm sorry.

Yes.

Dr. Payne.

As far as the regular doctor, the physical

piece of it, yes.

And has he spoken with you about Mr. Cole's physical

health at all?

No.

The only thing that has come up with Mr. Cole is

when we started -- nothing in the past.

did start the 35-day protocol -- I know I'm not supposed to get

into that -- but nothing in the past physically or alarming

about Mr. Cole.

Okay.

There was -- when we

And so -- and that -- you know, you would

obviously been notified if there had been something alarming

that he observed?

Oh, yes.

And would the same be true with your mental health

professionals or mental health workers that are employed at

OSP?

Yes.

Mental health is almost like another entity of

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corrections, basically.

I don't -- they have their own chain

of command.

have a different chain in command in how they do their

reporting, how they do things that, you know, might fall under

possibly a HIPAA violation or any of those things like that.

Naturally, it's all under my umbrella, but they

But if there's something that -- now, I wouldn't

be notified, for instance, if an inmate started a light

depression medication, you know, something like that.

would get notified, hey, we've got a -- and I'm just using --

I've got a Class C inmate, he's very violent, we think that,

you know, there needs to be some more precautions on it.

are the type things that I would get from my staff.

Okay.

What I

Those

And so they kind of -- would it be fair to say

that they only really involve you if there is a very serious

issue that they feel like you need to know about?

Correct.

Okay.

Correct.

And do you know how involved the mental health

professionals that you've testified about, how involved are

they in monitoring inmates, raising concerns, you know, putting

them on any sort of medication, if they deem it necessary, how

involved are they in that process?

I have always said this in my 32 years, '3 years of

corrections in every role that I've played, I've always felt

mental health was to the extreme within corrections, and I've

felt like a lot of times it was just maybe over-calculations

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and just excessive, you know, in certain areas.

look at mental health in corrections, I think that I have no

doubt in my mind that it's -- it's very, very thorough and

overly thorough.

Okay.

And so when I

And does that factor into your decision as to

whether Mr. Cole understands if he -- that he is being executed

and what he is being executed for?

With my mental health?

Uh-huh.

Not mine personally, but --

Yes.

Like I said, there's -- there's lots of things,

and it's not just -- when I'm trying to put a puzzle together,

it's not just the mental health.

in a case like this, very, very -- but I rely on all my staff,

every one of them.

I relied on them, especially

And would you agree with me if I said -- if your

mental health professionals believed that Mr. Cole either had

schizophrenia or some sort of mental health diagnosis, that

they would have -- they would have diagnosed him and they would

have told you about it?

Absolutely.

And to your knowledge, since the time that you've

been warden at OSP, has Mr. Cole ever been on any sort of

mental health medication for depression, anxiety,

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antipsychotics, anything like that?

Not to my knowledge.

Okay.

And would it also be fair to say that if your

staff felt like he needed to be on those medications, he would

be on them?

Oh, absolutely.

Do you recall if any of your staff -- do you have --

do you work with a psychologist, psychiatrist?

consultant that you work with at the prison?

Is there a

Well, when you say "work with" --

Uh-huh.

-- there is people that I get my information from.

The majority that what I did get from -- and like I mentioned

earlier, that he's retired -- was Dr. Smash.

several references in there with him.

there -- it may be two or three or a couple that -- really,

there's a couple that, you know, I really rely on that I -- you

know, that -- that are going to give me just detailed

information.

factual, you know, tell me exactly what's going on.

deeply -- if you feel that there's a problem.

comfortable -- 100 percent comfortable with them -- probably

more than -- and I've been over seven prisons in corrections --

more comfortable here than anywhere.

I know there's

So, you know, now

And what I want to know, I want to know it

Okay.

If you

So -- and I'm

And I'm glad that you brought up Dr. Smash.

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So he has -- the Exhibit 26 of the Petitioner, it appears that

these are, at least in some part, medical progress notes, and

one of them is by Dr. Smash.

MS. BURNS:

May I approach, Your Honor?

THE COURT:

Yes.

(By Ms. Burns)

Okay.

You got this, but I'm just

going to show this to you.

It's Petitioner's 26.

read on there prior -- in your prior testimony that there was

some sort of mental health progress, some sort of evaluation

that Dr. Smith -- or that Dr. Smash did on this particular

date?

Are you talking about an evaluation?

Or just an observation.

It was more -- more observation --

Okay.

-- to me.

And did you

And when -- and when -- and I understand

that's all a piece of it.

But his observation is something

that you see at different times.

know, the cell, you know, being -- and, at times, with Mr.

Cole, there's -- there's lots of legal things he keeps in his

cell.

think that -- and you look and you might see -- and that's with

all inmates.

they're older garments.

they're not clean, but they've got an older look to it.

Now, he talks about, you

There's lots of stuff like that.

He wears -- when you

Sometimes they might be dingy.

A lot of times

They like to hold on.

Not that

But

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with Mr. Cole, in all the observations I've had, he looks very

clean.

his --

So I agree with all that.

I'm not saying -- I believe

And the reason --

-- I believe his information is correct for the most

part here.

And the reason why -- yeah, I do want to bring that

up because in 26 -- Petitioner's 26, says Dr. Smash notes that

despite the state of his cell and possibly his clothing, did

Dr. Smash note that he did not smell bad?

that --

Did Dr. Smash note

(Court reporter requests clarification.)

THE COURT:

You need to answer out loud, please.

THE WITNESS:

Oh, am I waiting or answering?

(By Ms. Burns) I'll re-ask the question.

Okay.

That's okay.

I'm sorry.

Did Dr. Smash note in this particular

progress note that Mr. Cole did not have an odor about him?

Yes, he noted that here.

And did he note that his body and his hair appeared

to be clean?

Yes.

And that is -- is that consistent, those

observations -- are those observations consistent with the

times that you have directly observed Mr. Cole, yourself?

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Yes.

Have you ever observed Mr. Cole -- at any point in

your time at OSP, have you ever observed him to smell, be

dirty, unkept hair, anything like that?

No.

And relaying back to that, and I always have to

rely back on my staff to inform me of things like that, that

would happen to be -- naturally we don't say, hey, we're going

to go up there and we're going to do a use of force to make

sure that that inmate -- because --

out to do the showers, doesn't not necessarily mean he's not

clean.

not coming out taking a shower.

washing in his cell with the sink and all that.

because if he doesn't come

I think that's a misconception by a lot.

Well, he's

But, with Mr. Cole, he was

Okay.

So I have never observed him to be, I guess the

proper word would be, nasty, or anything like that.

And the fact that you had never observed him to have

an unkempt appearance, is that consistent with observation --

well, did any of your staff observe him washing in his cell?

Yes.

Okay.

So his -- his physical, clean physical

appearance is consistent with the fact that he actively washes

himself?

Yes.

Okay.

Yes.

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corrections, we call it a birdbath, is what we call it.

We -- my staff, typically -- we all do -- in

Okay.

So...

I think that you noted on direct that Mr. Cole

primarily eats things from the canteen?

Primarily, yes.

Okay.

Yes.

Do you know if there's any particular reason for

He quotes it or has stated it to other -- other

that?

individuals it's because of his religious beliefs.

And are you aware of Mr. Cole's religious beliefs?

I know that he has religious beliefs, and he can --

his quotes of them, I've never heard him personally quote to me

any.

that may talk to him, so -- when he does open up.

I'm aware of his beliefs.

I know he quotes, you know, a lot to different people

But, yes,

And he actually does a lot of -- now he's

comparing to his religious beliefs -- fasting.

my times, I always get nervous about when inmates -- and

several do -- go on a fasting deal because of their religious

beliefs.

Because, you know, it's my job to keep them safe

dearly.

So I get a little bit edgy, you know, when that's come

to me about that.

So in my -- in

Would you say that it's pretty often for an inmate to

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100

go on a fast pursuant to religious beliefs?

Would I say what now?

Does it happen often?

It depends on your description of often, but it does

happen.

And what's -- you -- what happens is, the fasting is

all different for whatever they may say.

It may be a day; it

may be a week; it may be until midnight.

So they say all kinds

of different things.

And I think that it was brought up, the topic of

Mr. Cole hoarding his food?

Uh-huh.

Have you ever directly observed that?

I have not actually seen a hoarding of food.

Now,

there has been times, if you look in there, you might see some

canteen items there.

with the hoarding of food, it's more precautionary on my

staff's part and going a little bit overboard.

I think when we -- when people say that,

Naturally, when a -- like a morning meal is fed,

when a noon meal comes, we take that stuff or it's given back

or the tray may be given back.

it's kind of like, well, should we leave it there a little bit

longer, you know, to make sure that he'll eat.

Okay.

Well, he does so much fasting,

To your knowledge, has Mr. Cole always made

sure that he drank plenty of fluids, stayed hydrated?

Yes, yes.

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101

So that's never been a problem?

Not to my -- not to my knowledge.

And kind of going back to the canteen, does he -- so

whenever he has items that he's either bought or ordered from

the canteen, what's the process as far as what does the staff

do to give those items to him?

What do they do?

What happens on the canteen, there's the forms that

are delivered to the inmates.

They will actually put on the

forms what they're ordering.

Those will be picked up by the

canteen specialist.

there, but the whole facility, they'll take those, fill those

orders, make sure they got -- you know, with canteen, make sure

there's money there on their books, and then it's delivered.

They'll take -- they'll fill -- not just

Okay.

But they fill out the forms for what they want.

So in order for Mr. Cole to be able to receive items

from the canteen, he would've had to fill out a form?

Yes.

And do you know if he has done that?

Yes.

And does he have to sign anything, like an

acknowledgment, when he receives those items?

Yes, he does.

And has Mr. Cole always done that?

Yes.

His writing is very, very large.

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Okay.

And it's -- he -- he'll -- if it's "no" or this, he

writes very large in his writing and stuff.

But yes, he does.

And those -- those guards or people that are employed

to work there, when they bring him his canteen, has -- has any

one -- any one of them ever indicated that Mr. Cole couldn't

accept the items, didn't understand what he was asking for or

basically just did not understand why he was receiving them?

No.

It's almost the opposite.

Okay.

What I mean by the opposite of that, from the canteen

Tell me what you mean by that.

specialists, from the unit managers and down, that's one way he

will talk to you, if there is a canteen issue.

sometimes with canteen, when that ordering is made, there may

be something that we don't have in the canteen, so there may be

a substitution --

Uh-huh.

-- that's actually added on that.

And he knows --

He knows every

time and he does not want substitutions, you know, on his

canteen.

at that time.

So he makes it really aware to whoever is delivering

So it's almost he over --

Okay.

So he just wants to make sure that he got what

he paid for, essentially?

Yes.

Absolutely.

Okay.

Now, I think that there was some testimony

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about the fact that he had a wheelchair in his cell?

Uh-huh.

Was that -- was he granted permission by DOC to have

That -- the wheelchair in his -- in his cell was

that?

approved by me and me only.

Okay.

I approved the chair to go into his cell because I

knew -- even on the information that I had received, I wanted

to make sure with our movement -- and, again, I'm referring

back to the 35-day, to which I don't know if I'm supposed to.

Not if it's within that period.

Not just that 35-day. Okay.

I was talking about the

wheelchair in the 35-day.

Okay.

I will ask another question.

Were

there any times that you were responsible for discussing his

execution date or reading his death warrant to him?

Yes.

Do you recall if that happened -- or when that

happened?

That was on the 35-day.

Okay.

Did Mr. Cole -- whenever you were directly

observing him, interacting with them, did he ever appear to be

afraid of you or of any of your staff?

No.

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104

that he appeared to be afraid of them?

I've never been approached or anything on being

afraid of Mr. Cole.

To your knowledge, has anyone of your staff indicated

Have your staff ever given you any details about the

quality or the types of communications that he's had with them?

Yes.

Has he -- what has his demeanor been like?

been rude, polite?

Has he

You know, with Mr. Cole, I would say you couldn't

even classify it as either one.

Okay.

I just think it's just real direct.

Just for

instance, like canteen, it's pretty direct and all that.

anything that I think is rude or anything like that or

disrespectful.

THE COURT:

Not

Counsel, I'm going to have to stop

you at this point.

There's a courtroom deputy that's -- his

last day is today.

I've told him I would buy his meal, so I'm

going to have to take a break.

The time now is 11:58.

Just out of an abundance

of caution, if we get held up, let's get back to the record at

1:30.

Court's in recess.

We're off the record.

(Whereupon, proceedings recessed for a lunch

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break.)

THE COURT:

We are back on the record.

It's

1:30.

And, Warden Farris, if you would, I would remind

you you are still under oath.

stand.

THE WITNESS:

MS. BURNS:

If you can retake the witness

Yes, sir.

And, Your Honor, before I continue

with my cross-examination of the warden, I just wanted to make

a quick record over an issue that came up this morning.

that this court's ruling was that, as far as for purposes of

this hearing, we were not the allowed to get into the 35 --

anything that occurred after, I believe, August 2nd.

ask for this Court to consider the communications that

Mr. Cole had with Warden Farris during -- on September 15th,

which was the first day of his 35-day notification.

I know

I would

And the reason for that is because I think that

the information that Warden Farris would be able to provide is

directly relevant to this issue, and that's also supported by

the fact that, you know, Mr. Cole's competency is fluid.

so he has -- the warden has a continuing duty to monitor and

observe Mr. Cole and make sure that the opinion that he

testified to is the same opinion that he has as far as

competency up until the day of execution.

And

And so I think that confining this particular

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106

hearing to only the dates that Defense requested will deprive

this court of that relevant information.

necessary.

to get into that, I would like to make an offer of proof for

the record, at least.

And I understand that if this court does not want

THE COURT:

I think it's

You don't need to make an offer of

proof.

That was a very limited ruling with respect to the

35-day protocol.

have 27 exhibits up here that goes into matters way outside of

the 35 days, that I think you misunderstood the court's ruling.

With respect to the exact subject he was testifying to, it was

outside of that and was not contained within that 35-day

protocol, which is what you were discussing with him.

very limited ruling.

doctor.

That -- there's an abundance of documents.

That's a

I've got a 2015 report in here from a

MS. BURNS:

Okay.

THE COURT:

There's multiple records in here

that are outside of 35 days.

I'm not saying that you can't ask

him about anything that didn't occur within this little narrow

window, because his competency is fluid.

back to 2003, there was a jury trial on competency of

Mr. Cole.

I've got records from

MS. BURNS:

Okay.

THE COURT:

So don't -- don't think that that's

the court's ruling.

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MS. BURNS:

Okay.

I guess I misunderstood then.

THE COURT:

You don't need to make an offer of

proof on that.

That was very limited to the exact subject that

was being questioned about at that time.

MS. BURNS:

MS. BLUMERT:

Okay.

Yes, Your Honor.

If I may, Judge.

I think there

may be some confusion.

My objection is that I do not believe

anything the warden testifies to during the 35-day period is

relevant, because he rendered his opinion prior that.

think the analysis is about his decision prior to that, and

it's my understanding -- correct me if I'm wrong -- but the AG

wants to talk about what happened during the 35-day period,

which I would object to, but I think --

THE COURT:

And so I

I wan to hear about what happened in

the 35-day period because if he becomes incompetent in the

35-day period, this is a whole different animal.

highly relevant.

monitoring Mr. Cole 24 hours a day, that's his testimony.

his condition changed or something occurred, I want to know

about it.

I mean, it's

If he -- if he's not able -- he's got people

MS. BLUMERT:

Well, so I think she was asking to

flesh some of those things out, which we were objecting to, but

I think it's -- that's my understanding is that you want to

talk about what happened in that period?

MS. BURNS:

I do.

So based on --

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THE COURT:

Well, the objection's overruled.

MS. BURNS:

Okay.

THE COURT:

Can we proceed?

MS. BURNS:

Yes, sir.

THE COURT:

Okay.

MS. BURNS:

I am ready to proceed, Your Honor.

MS. BLUMERT:

Ask your next question.

Judge, may I just have a standing,

ongoing object to content for the 35-day period?

THE COURT:

Yes.

MS. BLUMERT:

Thank you, Your Honor.

MS. BURNS:

May I inquire, Your Honor?

THE COURT:

Yes.

CONTINUED CROSS-EXAMINATION

BY MS. BURNS:

Okay.

Warden Farris, we're going to go back to the

35-day notification period, which I believe you testified this

morning that it started on September 15th of this year?

Yes, ma'am.

Okay.

And can you just explain for the Court what

exactly is involved, what happened on September 15th as far as

Mr. Cole and this particular protocol?

With the 35-day protocol, it's basically meeting with

the inmates, making sure that the understanding is there of

what is happening and what we're going to be moving forward

with.

That entails reading different things.

Some of our

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109

protocol with say, for instance, the canteen, the property,

burial arrangements, all of those things come into the 35-day

protocol, the last meal, you know, those type of requests too.

But that -- that meeting with him, along with other

professionals -- and when I say that, you know, you've got

mental health there also that has that meeting with him and let

him know, you know, how they will be checking on him and those

type of things.

protocol.

That's the main thing with the 35-day

The inmates, according to our protocol, we move

to a certain area of the facility.

He is moved from another

cell, which is the execution cells.

We have four of those,

which is aligned with our chamber.

So that, making sure he

understands going through his property and making sure

everything is in compliance with those things, and for me to

see is there anything he needs outside of that.

Okay.

And is this incorporated -- this particular

protocol, I'm guessing, it's in DOC policy?

Yes, ma'am.

And is the underlying purpose of this protocol to

provide you with continuing information to ensure that the

inmate remains competent and understands what is going to

happen and why?

Absolutely.

Okay.

Now, on September 15th, you initiated

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110

that with Mr. Cole, correct?

Correct.

And so Mr. Cole was taken from the -- I guess the

normal cell that he is in and he was taken to one of the

execution cells?

Correct.

Okay.

And I think that you testified this morning

that he has an individual who is monitoring him 24 hours a day?

Yes, ma'am.

And do they keep any records of any behavior that

they observe of Mr. Cole during that period?

Yes.

The records will basically be, you know, when

people visit with him, if there's anything unusual, then that

is placed in there too, did the inmate, you know, eat at a

certain time, is it delayed, who actually came up there,

whether it be mental health, all those things.

limit to what they can put in that log.

There's no

Okay.

So some -- as we're logging, we keep the mandatory

stuff that we need to know, you know, if there's something that

I got to find out quickly, if there's a medical emergency or

something there that I've got to make a decision on really

quick, I need to know right then.

until I do my observation, I don't need to have all that at

that moment.

But just the typical deal

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Okay.

And is it correct that -- or would you say

that this is correct, that the individual who is monitoring

Mr. Cole during this period, are they required to make

notations or give an update like every 15 minutes?

Yes.

Okay.

Yes.

There will be continuous updates.

be status the same or different things on that.

Okay.

And it may

So...

And so on September 15th, I believe you

testified previously that Dr. Payne did a medical evaluation of

Mr. Cole; is that correct?

Yes, ma'am.

And do you know exactly what Dr. Payne noted pursuant

to that evaluation?

What did he tell you?

Dr. Payne -- and this -- when I say this with the

35-day protocol, it's not that there hasn't been checks before

that.

refreshed on those things.

test that he has done on Mr. Cole, that he is able to function,

he's able to walk and he's able to move, and he -- he --

I have to get -- as we start it, again, I have to get

MS. BLUMERT:

Mr. Payne advised me that with the

Objection, Judge.

We don't

have -- this is information and statements he's testifying to,

we do not have any documents, notice, anything about this.

requested it in discovery and we have not received any of

those.

This is the first time I'm hearing any of it.

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THE COURT:

What's the legal basis for your

objection?

MS. BLUMERT:

So it should be excluded because

it wasn't provided to us under discovery code, proper notice

and that's the remedies exclusion.

THE COURT:

Were these records provided to the

MS. BURNS:

I'm going to allow my co-counsel to

MS. WILLIS:

Your Honor, if I may respond.

Discovery is still ongoing.

Our discovery deadline is October 19th.

that these records must be requested via a court order.

cannot be turned over without a court order, so we would need a

specific court order for those records.

THE COURT:

defense team?

answer.

I don't even have these records.

And I also believe

They

There has to be a waiver of the

privilege.

I don't have any documents to indicate that that

was waived, and I'm going to exclude this evidence based upon

several reasons.

But it's not been exchanged between the parties.

Number two, it's rank hearsay, unless it fits under an

exception, which I don't believe it does at this point.

(By Ms. Burns)

THE COURT:

And so after -Hang on a second.

It -- I didn't

mean to interrupt you.

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Isn't there one of your records, the progress

note from -- I can't find it, but I could have sworn I saw

something from Dr. Payne.

MS. BLUMERT:

May I have a moment, Judge?

THE COURT:

It's a real short progress note.

But in my records, I don't find it.

Warden, I know -- I believe you testified to it

this morning.

THE WITNESS:

THE COURT:

Yes, sir.

THE WITNESS:

Yes.

THE COURT:

With Dr. Payne, sir?

Yes.

While they're looking, go to your

next question, please.

(By Ms. Burns) Warden, so he was -- so on

September 15th, in addition to being evaluated by Dr. Payne,

was he also observed or evaluated by anyone for mental health?

Yes, Ms. Tina Fuller.

Okay.

And do you recall about how long Ms. Fuller

observed him or performed an evaluation?

I don't know which.

Well, with that particular time on that, when we were

starting the 35-day protocol, what she does is explain the

processes to him that's going to happen, that he's going to be

checked.

35-day protocol.

She didn't actually do the check right then in the

Okay.

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Now, I -- I have talked Ms. Fuller, you know, at

times and have gotten the same information from her that is

consistent with all the staff members that I've got on the

evaluation of it, and she's 100 percent he's -- he's competent.

And so the -- when you say that the information you

got from Ms. Fuller was consistent with everything else you've

been -- I guess you've received from your staff, would it also

be consistent with your determination that Mr. Cole is

competent for execution?

Yes.

As part of this 35-day protocol -- I kind of touched

upon this this morning -- but is part of that you essentially

read to him his either judgment and sentence or death warrant?

Correct.

And did you do that with Mr. Cole?

Yes.

And can you tell the Court what happened when you did

that and if he ever responded to you?

In -- in the process that was going, Mr. Cole

basically, in how he was sitting basically at the table, didn't

ever make eye contact, but in reading it, when I read that, I'm

always -- when I'm reading stuff like that, I watch behavior

also.

I would also always ask, "Are you understanding?"

always get like a head nod for a yes, is what I took it, he's

Mr. Cole -- after I would read a little bit of it, then

And I'd

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understanding what I'm saying and what I'm talking about.

Okay.

And as far as the specific questions that are

most relevant today, did -- did you ever ask Mr. Cole during

this conversation if he understood that he had an execution

date set and when that was?

Yes, he did know what the process was.

Of course

he's been through the process before, so he knew.

concern with Mr. Cole was to basically get that done, the way

it seemed, to get it done, to get out of there.

to make sure he had certain things before his execution, and

those certain things would be to make sure he's warm, which I

did approve him to have two coats extra than what he had.

those were the main things, make sure that he could get his

canteen, and the other things that, you know, he did not want,

you know, which, last meal, and those type of things.

Okay.

answers.

about being warm when you had this conversation?

The biggest

And he wanted

And then kind of I want break down those

So did he specifically talk to you about his concerns

Yes.

And he was also concerned about the food that he

would get from canteen?

Yeah.

He wanted to make sure -- well, not what he

would get from canteen.

I'd explained -- but in our protocol,

our policy, we can't actually give them canteen until after ten

days.

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Okay.

So he was concerned about that.

That he may not be getting canteen?

That he may not be getting canteen.

But that's not

unusual for the protocol on -- for every inmate to not get

their canteen for ten days, so it's not something -- that's

something you see from every inmate on the canteen part.

And he actively expressed concern over making sure

that he stayed warm in the execution cell?

In the cell he was being placed in.

Okay.

Because he basically stays cold a lot, so that was

Got ya.

probably the biggest concern that he had.

nodded that he understood all that process.

it was almost boring to him, you know, to hear this again, you

know.

what I was saying.

He said -- or he

I felt, you know,

But, like I said, I felt that he understood completely

Did he ever -- did you ever ask him if understood why

he was being executed?

Why, that was not a question that I personally ask

him then.

doctor -- Dr. Orth had made sure that those questions were

asked and completely understand that.

ask that question, "Do you know why?"

I know it was asked on -- when the stuff with

But I did not personally

Was there any other question, other than what we've

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discussed, that you did ask him during this period?

Not particularly a question.

What I do in those

situations too is -- it's a very uncomfortable situation for

everybody.

So what -- what I try to do is -- and Mr. Cole's a little bit

different than that, but what I try to do is basically talk,

let them know that we're here for them, you know, I'll be there

every day.

here, you know, to make checks on you every day.

please let me know, or my staff know, if there's anything, you

know, that we can help you with during this process.

It's nothing that anyone likes to do and all that.

And that's what I reference to him, I'll be up

Please --

And did he appear to understand what you were telling

Yes.

Did he ever vocally respond?

He -- with him, the actual vocalization was all about

him?

those type of things -- when I asked him, "Do you understand?",

it was a head nod.

Okay.

But the conversations would start up with the

canteen, to make sure he's being warm, making sure he had

everything with his -- all of his materials, which is one cubic

foot that we can allow, you know, in the cell, to make sure he

had all that stuff too.

And, Warden, the more that you spoke with him during

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this period, during the 9/15 conversation that you had to

him -- had with him, did it seem to you the more that you

engaged him in conversation, the more responsive he ultimately

became?

Yes.

I think if you -- if you're there with Mr. Cole

and you engage in something, he's going to -- he will respond

in some way.

decides he's not going to talk to you, you know, he'll give you

a hand, you know, or a nod, you know, and so forth.

depends on him.

And sometimes it may not be -- he may -- if he

Okay.

It just

And I know that, you know, you've previously

testified that you're aware that Mr. Cole has very strong

religious beliefs?

Yes.

And as part of this 9/15/22 conversation, did you go

over, or are you supposed to go over, any paperwork regarding

burial, cremation, what happens with his things after the

execution?

Yes.

And did you do that with Mr. Cole?

Yes.

And there is -- there is forms that --

sometimes when we start that protocol, it's not just, you

know -- they don't know exactly at that time.

we leave them the forms and they'll return them to us when they

decide.

So what we do is

And sometimes it takes a little while for that.

And

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like Mr. Cole, he basically said right off he did not want no

last meal.

changes his mind on that.

But I make sure he still has a form in case he

To your knowledge, did Mr. Cole express any

preference or intent as to where he wanted to be buried and if

he could have anyone assist with that?

He -- he was unsure at the time.

Was there any point after that time that any of that

information came to your attention?

As far as the burial?

Uh-huh.

Not to my attention.

I know that there was some

attempts from him, you know, to call, I believe it was another

Chaplin that was recommended.

several yesterday, to make that call, but there was no answer

on that part of it.

Okay.

I know there was attempts,

And just a little bit more details on that.

Did your facility -- did y'all provide him with a particular

phone number to call the -- the individual -A.

Yeah.

The numbers will be -- it depends on who is

approved for that piece of it too.

If it's a particular

Chaplin and all that, you know, our Chaplin, you know, kind of

organizes that.

28th.

he knew how to operate that phone.

But the phone process was taken to him on the

And, actually, he -- the unit manager actually made sure

And the main calls, I

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believe -- I'm not for sure if another went out today or

several went out today, but I know some has went out or

attempted to go out.

And you said that he was given a -- I guess taught

how to use the phone on the 28th of September?

Yes, ma'am.

So this month.

Okay.

And to your recollection, the

most recent phone calls he's made happened on the 29th; is that

what you said?

Today's the 30th, correct?

Yes.

I believe it was the 28th that the calls -- the

Yes, it is.

majority of the calls were attempted.

But your -- your facility has documentation that he

has made phone calls?

Yes.

The attempts to make those, yes.

Do you know who he was attempting to call

specifically?

Not specifically.

I -- what I -- what I was relayed

to that that might have been the Chaplin or try to get an

attempt to the Chaplin that was recommended to him.

that's -- that's what I was thinking the attempt was made,

because he hadn't actually put anybody forth yet.

And just for clarification, the Chaplin at your

facility was the one who kind of initiated or gave the

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information of this other one?

Well, the actual -- with the phone piece of it, was

actually the unit manager --

Okay.

-- the unit manager, you know, which there are daily

visits to.

Now -- and he has opened up quite a bit, you know,

to the unit manager there too.

So...

Was that recently?

Which -- which part, ma'am?

He's opened up to the unit manager.

Yes, it's actually -- it's -- that unit manager --

that particular unit manager, that's only been in that spot for

the unit management I think approximately two months now.

she's been real thorough about, you know, trying to visit, you

know, all the -- and make sure that -- and for some reason, you

know, he's -- according to her, he's -- he's opened up to her.

MS. BLUMERT:

Objection.

And

Objection, Judge.

The same objection as discovery.

This is all hearsay as well.

I have never heard any of this.

I've never seen any of these

reports.

This is the first time I'm hearing all of this.

THE COURT:

Sustained.

MS. BURNS:

Your Honor, if I could make a record

on that.

If the Court would just entertain the fact that, you

know, this is being offered to show that he did make phone

calls, not necessarily it's offered -- it's not necessarily

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offered for the truth of what those conversations -- or how

they happened or what the content of them were, it's simply to

show this Court that he has been engaging with staff of the

facility.

THE COURT:

Okay.

MS. BURNS:

Thank you.

(By Ms. Burns)

Okay.

I want to talk a little bit

about DOC's or OSP's efforts to try and facilitate

communication between Mr. Cole and his defense team.

Okay.

To your knowledge, has this facility, has it

ever prevented his defense attorneys or any person on the

defense team from being able to meet with him?

MS. BLUMERT:

Object, Judge.

relevance.

certainly an enormous issue.

purpose of this hearing.

There are a lot of records about this.

MS. BURNS:

MS. BLUMERT:

THE COURT:

relevant.

that.

Object to

And this is

But it's not relevant for the

It is relevant.

This hearing -The Court will decide whether it's

So let's make that clear, who's the gatekeeper on

What's the basis for your objection?

MS. BLUMERT:

Relevancy?

That it's not relevant, Judge,

because the issue was what the warden knew and what he knew

about this facility.

Not necessarily what Mr. Cole is saying

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to us because our communications are not at issue for this

purpose.

might become relevant in that circumstance, but this one where

we are looking at the warden's decision to make a referral to

Pittsburg County, I don't think the other parts of that's

relevant.

They become relevant at a competency trial, they

THE COURT:

Well, there's documents that I've

seen that -- where that issue's been raised.

in Dr. Hough's -- did I say it -- how do you say his name?

THE WITNESS:

THE COURT:

It's been raised

Hough.

Dr. Hough's report.

It's

been raised by multiple parties involved with the defense team.

So if there's any efforts by OSP to thwart your ability to have

contact with your client, I want to know about it.

So you may proceed.

lot of the same ground that I heard this morning.

lot of this I've heard.

your records.

questions.

Counsel, we're covering a

And I promise you, I'm going to read

So just keep that in mind with respect to your

Ask your next question, please.

MS. BURNS:

This -- a

(By Ms. Burns)

Thank you.

And so, Warden, I believe you said

that DOC has never tried to prevent anyone from his defense

team from meeting with or communicating with Mr. Cole?

Never.

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And the reason I'm asking this is because I know that

you reviewed Dr. Hough's reports.

Yes.

And do you recall how many times Dr. Hough came to

OSP to attempt to meet with him?

Not -- do not know the number of times.

I know there

was never any communication with that.

to that also, we -- if an inmate refuses to see something as a

legal -- unless it's -- unless it's court ordered for me to do

something to bring the inmate here or anywhere else, we -- we

cannot go in there and remove an inmate and force them to talk

to an attorney.

ordered he

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