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Starks has to wait longer for dismissal of charges

Bennie Starks (left) 53 Racine Wisconstalks reporters lobby Lake County Building with attorney RSafer. Starks was convicted rape 1968 spent

Bennie Starks (left), 53, of Racine, Wisconsin talks to reporters in the lobby of Lake County Building with attorney Ron Safer. Starks was convicted of a rape in 1968 and spent 20 years in prison when DNA evidence excluded him as the rapist. | Thomas Delany Jr.~Sun-Times Media

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Updated: February 6, 2013 1:56AM

Twenty-six years after he was convicted of a brutal rape that he did not commit, Bennie Starks was in court to clear the last charge pending against him.

However, a legal technicality Friday prevented prosecutors from dropping the 1985 aggravated battery charge against him.

Starks, 53, was convicted of sexual assault and aggravated battery in 1986 for the rape of a 68-year-old woman. He was sentenced to 60 years in prison.

However, DNA evidence from a vaginal swab of the victim was located in an evidence locker in 2004. The DNA test results excluded Starks as the rapist in 2005. The state appellate court released Starks from prison and ordered a new trial.

Lake County dropped sexual assault charges against Starks in May. Newly sworn in Lake County State’s Attorney Mike Nerheim announced Wednesday he wanted to drop the aggravated battery charge still pending against Starks. Attorneys came to court Friday before Lake County Circuit Court Judge Victoria Rossetti to do so.

“This court does not have jurisdiction. We will not be hearing the matter,” Rossetti said.

Lake County has not received a mandate from the Illinois Supreme Court, meaning the high court still has jurisdiction over the case.

Starks called Friday’s brief court hearing “bittersweet.”

“I’m still positive. It will be dismissed in a couple of weeks. I’ve waited all this time,” Starks said.

In 1986, the alleged rape victim testified she had been grabbed by the neck, thrown to the ground, repeatedly punched in the face and sexually assaulted by the same man, according to the appellate court’s summary in its most recent opinion. The victim, who has since died, was hospitalized for 11 days after her attack.

Prosecutors presented evidence that Starks matched the bite mark found on the victim. Authorities contended the same person who raped the woman beat her. The appellate court granted Starks a new trial in 2006 because it found the defense was not allowed to properly cross-examine the victim.

A legal technicality severed the sexual assault charge from the aggravated battery charge. Also in 2006, the appellate court held that a “new trial was required” on the sexual assault charges because of the DNA evidence.

“They (Lake County State’s Attorney’s Office) contorted evidence any way they could to desperately cling to the conviction any way they could. That brought shame and ridicule from across the country. What’s significant today is we have the state’s attorney correcting this,” defense attorney Ron Safer said.

Nerheim said he reviewed the Starks case on Monday, the same day he was sworn in to office. He personally attended Friday’s hearing to call the case.

“I just feel after reviewing the evidence and looking at the case, I don’t believe the interests of justice are served by pursuing this,” Nerheim said.

He said he has asked appellate prosecutors to “immediately issue the mandate” so they can bring this case back up next week. Rossetti set the case over until Jan. 24.

Also in court Friday was Juan Rivera to support Starks. Rivera was convicted three times for the 1992 rape and murder of Holly Staker of Waukegan. The state appellate court reversed Rivera’s conviction citing DNA evidence earlier this year. Rivera did not speak to the press.

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