Illinois Appeals Court Throws Major Blow to Lake County Prosecutor’s Effort to Retry Man that DNA Testing Has Excluded as Source of Evidence in 1986 Rape


Contact: Paul Cates, 212-364-5346, cell 917-566-1294,


(Chicago, IL; February 15, 2012) – A decision from an Illinois appeals court today has made it difficult for Lake County prosecutors to retry Bennie Starks for a 1986 rape for which DNA testing has definitively excluded as the source of semen in the case. The court upheld the trial court ruling that prosecutors are forbidden from introducing at retrial the earlier testimony of the victim who his now deceased.


“We’ve known for years now that Mr. Starks is innocent. DNA testing conducted back in 2000 definitively proved that he was not the source of the semen recovered from the crime scene evidence, yet former Assistant State’s Attorney Mike Mermel fought desperately to hold onto his conviction, coming up with more and more irrational theories to explain the evidence in the case,” said Vanessa Potkin, Senior Staff Attorney with the Innocence Project, which is affiliated with Cardozo School of Law. “We’re hopeful that today’s decision will persuade the Lake County State’s Attorney’s office to do what should have been done years ago and dismiss all the charges against Mr. Starks so that he can finally put this long and painful episode behind him.”


Starks was convicted of raping and assaulting the 68-year-old victim in 1986. After initial DNA testing of semen found on her underwear excluded Starks in 2000, Mermel dismissed the results because they were from clothing. In 2004, attorneys were able to locate the rape kit and tested semen recovered from the victim’s body that also excluded Starks. Again, Mermel dismissed the results claiming that she must have had sex with someone else before the rape. However, the victim told the police that she hadn’t had sex in weeks prior to her attack and that she thought the attacker ejaculated. Mermel’s new theory was unsupported by the victim’s account and contradicted the State’s own theory at the time of trial when the State represented to the Court that there was no other possible source for the semen other than the attacker.


After two trips before the appellate court, Starks’ rape conviction was eventually reversed and he was released on bail. Meanwhile, the victim passed away. Despite the DNA, Mermel was intent on retrying Mr. Starks now claiming that the semen was unrelated to the rape. His attorneys filed a motion seeking to bar prosecutors from entering into evidence the victim’s prior testimony because the victim could not be questioned on the State new theory of the origin of the semen. Today, the Appellate Court of Illinois, Second District, upheld the trial court’s decision to bar the prosecution from entering the victim’s prior testimony. The court held, “we conclude that the inability of the defendant to cross-examine complainant regarding her prior sexual conduct or the exculpatory DNA and serology test results precluded defendant from exposing facts from which the fact finder could have drawn inference about complainant’s reliability and credibility.”


At the original trial, the prosecution also called a called bite mark expert to say that bite marks on the victim’s body matched those of Starks. Bite mark analyses has been found to be highly unreliable, and two internationally recognized experts in the field reviewed the bite mark evidence in this case and found that they wouldn’t have even analyzed the evidence beyond identifying it as a bite mark because it was of such low forensic value and had been compromised by evidence collection techniques.


The only other evidence linking Starks to the crime was his jacket which was found near the scene of the crime. Starks always maintained that it had been stolen from him earlier in the evening. It was found in a ravine near where both he and the victim lived.


“Mr. Starks has been fighting this case for more than 25 years, most of which were spent prison,” said Lauren Kaesenberg, a former Innocence Project Cardozo law clinic intern now working as a private attorney in Chicago. “We’re hopeful that reason will finally prevail and that the State’s Attorney’s Office will recognize that the DNA proves that Mr. Starks had nothing to do with the crime and is innocent.”


In December 2011, Assistant State’s Attorney Mike Mermel resigned from his position with the Lake County State’s Attorney’s Office after the publication of an article in the New York Times Magazine profiling the case of Juan Rivera. As in Starks’ case, Mermel ignored DNA testing definitively proving Rivera’s innocence of a rape and murder for which he was eventually exonerated in January 2012. According to the New York Times, Lake County’s sheriff, Mark Curran, demanded that Mermel be removed from office for comments made in the article. Lake County State’s Attorney Michael J. Waller also distanced himself from Mermel’s views.


Starks is one of the Innocence Project’s oldest active case, having represented him since 1996. In addition to Potkin and Kaesenberg, Starks is represented by Innocence Project Co-Director Barry Scheck and by local attorneys Jed Stone and John Curnyn. Ron Safer, partner at Schiff Harden LLP, along with Associate Brooke Schaefer, later joined the team and argued the appeal that was decided today.


A copy of today’s decision is available at



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