Judge: Dead victim's testimony can't be used in Starks trial
A Lake County judge ruled Wednesday the testimony of a woman raped in 1986 cannot be used in the new trial of her accused attacker because the victim has since died and defense attorneys cannot cross examine her on a crucial issue.
Unless prosecutors successfully appeal Circuit Judge John Phillips' ruling, Wednesday's action effectively ends the prosecution of Bennie Starks in the case.
A visibly moved Starks, 50, declined to comment at length about the case after the court hearing, but did say “Not yet” when asked if he felt he was home free in the matter.
Starks, of Waukegan, was found guilty of aggravated criminal sexual assault and aggravated battery in the Jan. 18, 1986 attack on a 69-year-old woman.
He was sentenced to 60 years in prison, but the appellate court ordered a new trial of the case in 2006 because prosecutors had successfully argued defense attorneys could not question the woman about her history of sexual contact at the original trial.
Who the woman had sex with and when is a central issue to the case because DNA testing performed after the first trial established that semen found in the woman's body and on her underwear does not match Starks.
The woman died sometime in the 1990s, and prosecutors planned to read the transcript of her testimony in the first trial in order to pursue the case against Starks.
But his defense attorneys argued that because they would not be able to cross-examine the transcript on the subject of her sexual history, the same issue that caused the first verdict to be reversed would be present in the second case.
In issuing his ruling, Phillips acknowledge it would be impossible for prosecutors to try Starks a second time without the victim's testimony. However, he said it was not a judgment on what happened the night of the attack.
“This is not an exoneration of Mr. Starks and he is not being found not guilty,” Phillips said. “He sadly will not get that opportunity, and also just as sadly, (the victim) will not get the opportunity to have evidence presented that could have resulted in a finding of guilty.”
Waukegan defense attorney Jed Stone said he believed the ruling was an exoneration of his client.
“Bennie Starks' 25-year nightmare is very close to an end,” Stone said, referring to the Jan. 28 date prosecutors will return to court to announce if they will appeal the ruling or drop the case.
“Bennie did not do it; and he intends to seek compensation in U.S. District Court in Chicago for the 18 years he was incarcerated for a wrong-minded prosecution surrounded by junk science,” Stone said.
Starks has already filed a lawsuit against prosecutors and police involved in the original prosecution, Stone said, but he was unaware of the case's status.