Appeals court bars dead woman’s testimony in rape case

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Updated: March 19, 2012 8:03AM

The Lake County State’s Attorney’s Office has no comment so far after an Illinois appeals court ruled prosecutors cannot use testimony from the victim in the retrial of Bennie Starks for a rape in Waukegan because she is dead.

Last February, former Lake County Assistant State’s Attorney Michael Mermel asked a judge to reconsider a ruling barring the recorded testimony of the now-deceased victim in the rape case. Starks served 20 years of a 60-year rape sentence until a state appellate court granted him a new trial in 2006 because defense attorneys were not allowed to properly cross-examine the victim.

DNA evidence collected in 1985 did not match Starks, but prosecutors said “it was not relevant” and Mermel said the victim told police she had sex with someone else before she was sexually assaulted. This is the third Lake County case involving DNA that did not point to the man accused of a crime.

The Second District Appellate Court in Elgin upheld the trial’s court decision to bar the prosecution from entering the victim’s prior testimony.

“We’re hopeful that today’s decision will persuade the Lake County State’s attorney’s Office to do what should of been done years ago and dismiss all charges against Mr. Starks so that he can finally put this long and painful episode behind him,” said Vanessa Potkin, senior staff attorney with the Innocence Project affiliated with the Cardozo School of Law in New York. The appeals court made the ruling Monday, Feb. 13.

Stark has been free on bond after two trips before the appellate court where his rape conviction was eventually reversed.

That leaves only bite mark analysis from the original trial, which the Innocent Project called highly unreliable. They also have two experts in the field who reviewed the bite mark evidence and said it was of such low forensic value because it had been compromised by evidence collection techniques.

They said the only remaining piece of evidence was a jacket owned by Starks that was found near the scene of the crime that Starks said had been stolen earlier that evening. It was found in a ravine close to where Starks and the victim lived.

This is one of the Innocent Project’s oldest active cases going back to 1996. Local attorneys Jed Stone and John Curnyn participated in the case. The State’s Attorney’s Office has 21 days from Monday to make a decision on how to move forward on the case.

In December, Mermel resigned after an article was published in the New York Times Magazine concerning the Juan Rivera case and the murder of Holly Staker. Rivera was released after DNA evidence did not point to him.

In addition, Jerry Hobbs of Zion was cleared in the 2005 murder of his daughter and friend in 2010 in Zion after DNA evidence matched a former Zion man in custody in Virginia for two attacks on women that had been entered into an FBI database.