No retrial in Lake County rape case

Chicago man served 20 years until DNA got him out on bond, was facing retrial in '86 case

Lake County prosecutors say they do not plan to retry Bennie Starks on rape charges from 1986, apparently scuttling yet another in a string of cases undermined by DNA evidence, according to defense lawyers who received the news Monday.

At a hearing in Elgin appeals court, a lawyer from the state appellate prosecutor's office told judges that Lake County authorities have said they plan to drop the sexual assault charges, said four of Starks' attorneys who were present.

Starks, 52, spent 20 years in prison for the rape of a 69-year-old woman in Waukegan, but he was released on bond after the appeals court ordered in 2006 that he be retried. As with three other recent Lake County cases, prosecutors insisted on his guilt even after DNA pointed toward someone else as the attacker.

"They went out of their way to try to circumvent science and circumvent justice," said Lauren Kaeseberg, one of Starks' lawyers.

Starks' case is scheduled for a hearing in Lake County court Tuesday morning. Prosecutors from 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, of Chicago, was an early client of the New York-based Innocence Project, and he has watched patiently as other inmates celebrated their exoneration by DNA, said Vanessa Potkin, an Innocence Project staff lawyer.

"I think Bennie's just looking for his day," she said.

The possibility of a retrial had been thrown into doubt by court rulings barring prosecutors from using key evidence that jurors might have weighed against the DNA - the testimony of the victim, who identified Starks as the rapist.

She died a few years ago, and a Lake County judge ruled in January 2011 that prosecutors could not use her past testimony at the retrial. The state appeals court affirmed that decision in February, noting Starks' lawyers would not have an opportunity to cross-examine her and holding that the original cross-examination was inadequate.

After the conflicting DNA evidence became public in the early 2000s, prosecutors responded much as they did to other cases whose consequences continue to roil Lake County's justice system and political environment.

Prosecutors argued 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.

Starks' attorneys voiced hope that the apparent end of his case - which would follow the implosion of murder cases against former Zion resident Jerry Hobbs and onetime Waukegan man Juan Rivera - might foretell changes in the way the prosecutor's office views forensic evidence.

"Over the last decade, never have we encountered a jurisdiction … so hostile to science," Potkin said.

Waller is not running for re-election 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. A dentist said bite marks on the victim matched Starks, and his jacket was found at the scene.

Starks said the jacket and money were stolen from him after he passed the evening in a local tavern, and the defense attorneys have called the scientific rigor of the bite-mark evidence into question.

Several years into Starks' 60-year prison term, testing turned up a genetic profile from another man on the victim's underwear. Later, testing on a vaginal swab found DNA that didn't come from Starks.

Starks was also convicted of battery in the 1986 attack, and his attorneys hope to have that conviction vacated. It was at a hearing related to the battery conviction that a lawyer from the state's attorneys appellate prosecutor's office spoke about the sexual assault charges, Starks' lawyers said.

It would be "preposterous" for the battery conviction to stand while the rape charges are dropped, Kaeseberg said.

By Dan Hinkel, Chicago Tribune reporter, dhinkel@tribune.com

Source: The Chicago Tribune