The Sixth Circuit denied habeas relief to Benge on January 16 2007. The opinion was authored by Judge Gilman and joined by Judge Rogers. Benge is out of Butler County.
Judge Martin dissented on the ground that Benge received ineffective assistance of counsel at trial because his counsel failed to object to an incorrect jury instruction. The instruction prevented the jury from considering Benge’s defense of voluntary manslaughter until the jury acquitted Benge of aggravated murder
The only aggravating factor was an ATM card
Benge asks whether an attorney in a capital case was constitutionally ineffective for failing to object to flawed jury instructions. As in Van, the majority concludes that the defendant was not prejudiced. Judge Martin dissents, using the case as another opportunity to criticize the death penalty as arbitrary. Here, the only aggravating factor in the underlying murder was that Benge stole the victim’s ATM card while killing her. See:
Court Opinion
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