Convicted Kentucky murderer remains on death row after federal court denies appeal
A federal appellate court has denied an appeal from a convicted Kentucky murderer and upheld his death penalty sentence, according to a Thursday news release from Attorney General Russell Coleman.
Benny Hodge, 73, was convicted in the August 1985 murder of 23-year-old Tammy Acker, a University of Kentucky student who was stabbed to death during a robbery at the home of her father, Dr. R.J. Acker, in the Letcher County town of Fleming-Neon.
The attorney general’s office said Hodge and an accomplice posed as FBI agents to enter R.J. Acker’s home. The two suspects tied up the victims and forced R.J. Acker to open his safe before choking him with a cord, and they stabbed Tammy Acker at least 10 times with a kitchen knife.
Tammy Acker died, while her father survived.
A three-judge panel of the Sixth Circuit U.S. Court of Appeals, which hears cases from Kentucky, Ohio, Tennessee and Michigan, overturned Hodge’s sentence last year, but Coleman asked the full court to reconsider the case.
The court is an intermediate federal appellate court, one step below the U.S. Supreme Court.
On Wednesday, the full court returned a 14-4 decision to uphold Hodge’s death penalty sentence. The attorney general’s office said Kentucky Solicitor General Matt Kuhn presented the commonwealth’s case to the court.
“For nearly four decades, this brutal murderer has tried to escape justice, hoping that we would eventually give up and forget about this case. We never forgot about this tragedy, about the Acker family and about the justice they were promised,” Coleman said in a news release. “Every Kentuckian will be safer when this convicted criminal faces his lawful sentence.”
Hodge, of Lake City, Tenn., sought to have his conviction overturned in his latest appeal, citing ineffective assistance of counsel, jury tampering and jury bias during his trial.
The judge panel ruled that Hodge’s lawyers didn’t present evidence about his abusive childhood and mental health issues during sentencing, and that jurors were improperly influenced by external factors.
And while the full appellate court determined Hodge’s lawyers were indeed deficient, it said the evidence would not have changed the sentencing, according to the returned opinion. The court also did not find any evidence of jury tampering or bias.
Tawny Acker, Tammy Acker’s sister, thanked Coleman for his efforts in pursuing the death penalty and was relieved by the court’s decision.
“They stood masterfully in the gap, defending justice and protecting the safety of my family and the safety of all families in the Commonwealth,” Tawny Acker said in the news release.
Hodge remains on death row at the Kentucky State Penitentiary, according to the Kentucky Department of Corrections. There are 25 people on death row in the commonwealth.
Two other suspects in the Acker case, 75-year-old Roger Epperson and 66-year-old Donald Bartley, were also convicted in the case.
Bartley, of Harlan County, testified that Epperson directed the crime and Hodge stabbed Tammy Acker.
Bartley avoided a potential death sentence and was sentenced to life in prison with the possibility of parole after 25 years.
A parole board ordered Bartley to serve out the rest of his life sentence in 2009.
In 2019, Epperson worked out a deal to convert his death sentence to life without parole. Epperson, of Perry County, had an appeal pending in federal court, a battle that could have lasted until he was in his 80s, according to court documents.
Instead, attorneys for Epperson and the state agreed to set aside his death sentence. Epperson agreed to give up any further appeals of his conviction. If he reneges, a judge could reinstate the death penalty.
But Epperson remains on death row at the Kentucky State Penitentiary for two other killings — the June 1985 murders, two months before the Acker killing, of Edwin Morris, 65, and his wife Bessie, 69. The two were tied up in their home in Jackson County and shot to death during a robbery.
Hodge and Epperson were both convicted and sentenced to death in that case.
The deal to set aside Epperson’s death sentence in the Acker killing does not affect the death sentences against him in the Morris case.
What is the status of the death penalty in Kentucky?
In 2010, Franklin Circuit Court Judge Phillip Shepherd halted the death penalty when he issued an injunction over a range of concerns about executions, including the execution of intellectually disabled people. Kentucky has not executed anyone since that ruling.
Marco Allen Chapman was the last person to be executed in Kentucky in 2008.
In March 2024, Coleman filed a motion with the Franklin Circuit Court to end a nearly 15-year ban on the imposition of the death penalty in Kentucky. His filing followed the publication of amended regulations from Gov. Andy Beshear’s administration, bringing the state into full compliance with a 2010 court ruling, according to Coleman.
The state Supreme Court ruled unanimously in October it was not in a position to interfere in the legal back-and-forth between Coleman and Shepherd’s court.
Coleman asked the Franklin Circuit Court in December to rule on his motion to lift the death penalty ban.
This story was originally published May 8, 2025 at 1:22 PM.
