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MCALESTER, Okla. (KFOR) – The Pittsburg County District Court has denied death row inmate, Benjamin Cole’s request for a trial to determine his competency for execution.

On December 20, 2002, Benjamin Cole told investigators that he was trying to get his 9-month-old daughter to stop crying when he grabbed the baby by the ankles and pushed her legs toward her head until she flipped over.

The baby’s spine was snapped in half and her aorta was completely torn through, according to investigators.

For years, Cole’s attorneys have said that he has suffered from untreated paranoid schizophrenia, and more recently, his attorneys have claimed that Cole’s condition has deteriorated significantly while on death row.

“Benjamin Cole is incapacitated by his mental illness to the point of being essentially non-functional. His own attorneys have not been able to have a meaningful interaction with him for years, and the staff who interact with him in the prison every day confirm that he cannot communicate or take care of his most basic hygiene. He simply does not have a rational understanding of why Oklahoma seeks to execute him. The warden’s refusal to initiate competency proceedings is an abuse of his discretion, and we will promptly appeal the denial of our mandamus petition.”

Tom Hird, attorney for Cole

However, the State’s Attorney argues he’s faking it.

They claim others have seen Cole secretly getting out of his wheelchair and standing up in his cell.

The Oklahoma Attorney General’s Office says an independent evaluator found Cole is competent enough to be executed.

Now, the Pittsburg County District Court has determined not enough evidence was presented to warrant competency proceedings.

Cole’s attorneys say they will appeal the ruling to the Oklahoma Court of Criminal Appeals.

The State Pardon and Parole Board voted to deny Benjamin Cole clemency Sept. 27.

Cole is scheduled to be executed on Oct. 20, 2022.