Lake County prosecutors said Thursday they will study a recent appellate court ruling barring key evidence in a 1986 rape case before deciding how to proceed with the case.
The 2nd Appellate Court in Elgin earlier this week upheld a Lake County judge's ruling that said prosecutors cannot read the prior testimony of the now-deceased victim at a new trial for Bennie Starks, 50, of Zion.
Starks was convicted of aggravated criminal sexual assault, attempted aggravated criminal sexual assault and aggravated battery in the Jan. 18, 1986 rape of a 69-year-old woman in a Waukegan ravine.
Starks was sentenced to 60 years in prison, but a 2006 appellate court decision threw out the sex crime convictions because defense attorneys were barred from questioning the woman about her history of sexual contact before the attack.
The woman's sexual activity around the time of the attack became an issue after DNA testing performed after the first trial established that Starks was not the source of semen found in the woman's body and in her underwear.
Circuit Judge John Phillips ruled the woman's testimony could not be read at a retrial of Starks because she was unavailable for cross-examination on the issue of prior sexual contact.
The appellate court said in its ruling that Phillips had made the proper decision.
"Defendant was barred from questioning complainant about her prior sexual conduct and was unable to question her regarding the exculpatory results of the serology and DNA tests," the opinion says. "Thus, defendant was prohibited from engaging in appropriate cross-examination from which the fact finder could evaluate complainant's reliability."
Deputy State's Attorney Jeff Pavletic said State's Attorney Michael Waller will confer with officials at the state appellate prosecutor's office and his own staff before deciding how to proceed with the case.
Waller has the options of appealing the decision to the state Supreme Court within 35 days, taking the case to trial without the victim's testimony or dismissing the charges against Starks.
Jed Stone, Starks' Waukegan attorney, said Wednesday he believed the message from the appellate court was clear.
"Truth be told, Bennie Starks was wrongfully convicted and should not be subject to further prosecution," Stone said. "Whomever assaulted that woman left his DNA fingerprint behind him, and that person was not Bennie Starks."