Lake County won't retry man who spent 20 years in prison on rape charge

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Potentially adding another prosecution to a series of cases sunk by DNA evidence, Lake County prosecutors have said they do not plan to retry Bennie Starks on rape charges from 1986, according to defense lawyers who received the news today.

At a hearing in Elgin appeals court, a lawyer from the state’s attorney’s appellate prosecutor’s office told judges that Lake County officials have said they plan to drop the aggravated criminal sexual assault charges, said four lawyers for Starks who were at the hearing.

Starks spent 20 years in prison for raping a 69-year-old woman in Waukegan before the appeals court ordered a new trial in 2006, which led to his release on bond. As with other recent cases in Lake County, DNA evidence had pointed toward someone else as the attacker.

Starks’ case is scheduled for a hearing in Lake County court Tuesday morning. Prosecutorsfrom State’s Attorney Michael Waller’s office could not be reached to explain their plans for that hearing or comment on what was said in appeals court.

Starks, 52, of Chicago, was pleased to hear about today’s events and he’s excited for his hearing in Lake County, said Vanessa Potkin, a staff lawyer for the Innocence Project based in New York.

“He was really happy to hear how things went and is looking forward to tomorrow,” she said, adding that Starks has followed the cases of other men freed by DNA. “I think Bennie’s just looking for his day.”

The prospects for a retrial had been cast into doubt by court rulings barring prosecutors from using crucial evidence jurors might have weighed against the DNA – the testimony of the victim, who identified him as her attacker.

She died several years ago, and Lake County Judge John Phillips ruled in January 2011 that prosecutors could not use her past testimony at the retrial.

The state appeals court affirmed that decision in February, writing that Starks' lawyers didn't have a chance to adequately cross-examine her at the first trial. In part, that's because the lawyers at the first trial would not know about the exculpatory DNA evidence for several more years, the judges ruled.

Since then, Starks’ lawyers had been waiting for a sign as to whether prosecutors planned to try Starks again without that key evidence.

The state’s attorney’s office’s response to the revelations about the DNA evidence in the mid-2000s mirrored its reaction to other controversial cases that continue to roil Lake County’s justice system and political environment.

Former Assistant State's Attorney Michael Mermel argued then that the DNA did not clear Starks because the woman could have had consensual sex with someone else, although she said at trial she had not had sex in the weeks before the attack.

Though Starks has been free on bond for six years, the announcement Monday still marked a milestone, his lawyers said. Starks’ attorneys voiced hope that the apparent end of the Starks case – which would follow the implosion of two other Lake County cases involving conflicting DNA – might represent a change in the way the prosecutor’s office views forensic evidence.

“Over the last decade, never have we encountered a jurisdiction … so hostile to science and just unwilling to accept DNA,” Potkin said.

Mermel retired earlier this year amid controversy centered on comments he made to media about DNA evidence, and Waller is not running for reelection in November.

Starks was convicted in 1986 after the woman identified him as the man who pulled her into a ravine and beat, bit and raped her. Starks’ jacket was found at the scene, though he said the jacket and money were stolen from him after he passed the evening in a local tavern.

Several years into his 60-year prison term, Starks’ lawyers in 2002 asked for a new trial after tests conducted on the victim's underwear found a genetic profile that was not Starks'. In 2004, a vaginal swab, once said to have been lost, was found, and tests found the DNA did not come from Starks. The appeals court ordered a new trial for Starks in 2006.

Starks was also convicted of battery in the 1986 attacks, and his attorneys continue to fight to have that conviction vacated. It was at a hearing related to those proceedings today that a lawyer from the State’s Attorneys Appellate Prosecutor’s office made the announcement about the sexual assault charges, Starks lawyers said.

It would be “preposterous” for the battery conviction to stand while the rape charges are dropped, said Lauren Kaeseberg, another of Starks’ attorneys.

Starks is suing Waukegan police and several others involved in his trial.

dhinkel@tribune.com

Copyright © 2014, Los Angeles Times
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