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updated: 2/8/2011 2:23 PM

Lawyers for Waukegan man try to stop retrial for 1986 rape case

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Attorneys for a Waukegan man facing a retrial in a 1986 rape case in Lake County Circuit Court began an effort Wednesday to block that from ever happening.

A lawyer for Bennie Starks, 50, said an error restricting cross-examination of the victim in the case committed in the first trial can never be corrected because the victim is now dead.

Starks was sentenced to 60 years in prison for the beating and rape of a 68-year-old woman, but the 2nd District Appellate Court reversed that conviction in 2006.

Part of the decision to reverse the guilty verdict was based on a successful motion by prosecutors to prevent defense attorneys from questioning the woman about her history of sexual contact.

Who the woman had sex with and when is a central issue to the case, because DNA testing performed after the first trial has established that semen found in the woman's body and on her underwear does not match Starks.

In cases where a victim dies after testifying in a trial and therefore is unable to testify in a second trial, the normal practice is to read a transcript of the testimony to the jury.

But Chicago attorney Ronald Safer argued Wednesday that reading the victim's testimony in the second trial would only repeat the error, because it is impossible to cross-examine the transcript on the issue of her sexual history.

"There is no way they can read her testimony without committing the same Constitutional error," Safer said. "There is no way this testimony can be read without violating his Constitutional rights."

Circuit Judge John Phillips acknowledged Safer was throwing a knockout punch at the case against his client, and it was highly unlikely the prosecution could proceed if he were to bar the reading of the testimony.

"What the defense is asking me to do here is, essentially, not try this case again," Phillips said. "And from what I have seen so far is that there is very good reason to try this case again and that is certainly what the appellate court wanted when they sent the case back here."

In the first case, prosecutors claimed the semen must have come from Starks and told defense attorneys the woman had not had sex with anyone for at least 72 hours before the attack.

They then prevented any questioning of her about sexual contact by evoking the state Rape Shield Law, so defense attorneys were unable to suggest the woman had sexual contact with someone other than the man who attacked her.

The positions of the prosecutors and defense switched after the DNA revelation, with the defense claiming only her attacker could have left the semen and prosecutors saying the deposit was unrelated to the attack.

Assistant State's Attorney Michael Mermel told Phillips the woman's original testimony could be read in the second trial because he does not intend to claim Starks left the semen.

Mermel said he will rely on other evidence to establish Starks was the attacker, such as the fact a coat and a watch Starks identified as belonging to him were found at the scene, and Starks bore scratch marks where the woman claimed to have scratched her attacker.

Phillips told the lawyers to gather additional information supporting their positions and return Oct. 21, at which time he will schedule a date for his ruling.