BY BEN L. KAUFMAN
The Cincinnati Enquirer
A week before he was to die, lawyers for former Hamilton resident Michael W. Benge initiated federal appeals to overturn his death sentence for the killing of Judith Z. Gabbard.
Monday, his court-appointed attorneys' first step was to ask U.S. District Judge Edmund A. Sargus Jr. to cancel Mr. Benge's execution date for Nov. 23.
Judge Sargus granted the stay and typically, it will last for years as Mr. Benge, 37, pursues his appeal.
"And he will do that," court-appointed appellate attorney Anthony J. Celebrezze Jr. confirmed Tuesday. "He's not going to be a volunteer."
That was a reference to Ohio prisoner Wilford Lee Berry Jr., called "The Volunteer" because of his wish to die by lethal injection rather than live in prison.
As their second step, Mr. Celebrezze and co-counsel J. Joseph Bodine Jr. filed an encyclopedic attack on Mr. Benge's prosecution and trial with Judge Sargus.
Mr. Benge was convicted by a Butler County common pleas jury of aggravated murder, aggravated robbery and abuse of a corpse. The case began Feb. 1, 1993, after Paul Spahni, a driver for Houck's Towing, pulled a car off the Great Miami River banks. Mr. Spahni saw blood on the bumper and notified police, who found the body of Ms. Gabbard, 38, partially submerged nearby.
She had died from brain injuries in a beating.
Officers questioned her longtime partner, Mr. Benge, who initially said the couple were robbed by two men who killed her. Hours later, Mr. Benge said he killed Ms. Gabbard after she accused him of affairs with other women and tried to run him over.
Mr. Benge denied stealing her bank card, saying he had permission to use it.
Outside the court room, Ms. Gabbard's family became violent and at least one juror overheard the ruckus. Inside, a juror asked the bailiff what was being done to protect the jury.
Mr. Benge's trial attorneys sought a mistrial on both occasions but were refused.
Mr. Benge said he killed Ms. Gabbard in a rage after an evening of drinking beer and smoking marijuana. The coroner said Ms. Gabbard had alcohol and cocaine in her system.
In the petition filed Monday, Mr. Celebrezze and Mr. Bodine cited what they said were errors that denied Mr. Benge a fair trial: Jury instructions were improper, barring jurors from considering a voluntary manslaughter verdict.
Prosecutors failed to turn over material that might have aided the defense.
Defense attorney Craig Hedric also represented a witness in the case, and that potential conflict of interest denied Mr. Benge effective counsel.
There was insufficient evidence to prove that Mr. Benge stole Ms. Gabbard's bank card and without that robbery conviction, there could be no death sentence for the killing.
Outbursts by the victim's relatives inside and outside the court prejudiced the jury.
However Judge Sargus responds to those and related arguments, the loser probably will appeal to the U.S. Court of Appeals for the 6th Circuit in Cincinnati and the U.S. Supreme Court.
Meanwhile, Mr. Benge remains on death row in Mansfield.
