BLUHM LEGAL CLINIC
A prosecutor finally did the right thing – 26 years after a wrongful conviction
— Rob Warden
Bennie Starks had been behind bars for two decades when he was freed after DNA testing excluded him as the source of semen recovered from his alleged victim in 2006, but his exoneration took another six years.
Starks was arrested shortly after a 69-year-old Waukegan woman reported on January 18, 1986, that she had been pulled into a ravine, beaten, bitten, and raped by a man who left his coat at the scene. A dry-cleaning receipt in the coat pocket led police to Starks, who acknowledged that the coat was his—but insisted that it had been stolen from him at a bar.
The evidence against Starks, 26, seemed overwhelming: The victim positively identified him. A forensic dentist, Dr. Russell Schneider, of Waukegan, concluded that his teeth matched a bite mark on the victim. A state forensic scientist, Sharon Thomas-Boyd, testified that serology testing—this was before the advent of DNA forensic testing—included him among possible sources of semen recovered from the victim’s vagina and underpants.
A Lake County jury found him guilty of both rape and aggravated assault. He was sentenced to 60 years in prison.
A decade later, the New York Innocence Project accepted the case and sought DNA testing. After the Illinois Appellate Court affirmed the conviction in 2002, a judge ordered the testing over the strenuous objection of Lake County State’s Attorney Michael Waller.
A vaginal swab take n from the victim immediately after the crime could not be found, but testing of a semen stain in her underpants excluded Starks—clearly indicating that he was innocent, given that the victim had stated that she had not had consensual sex with anyone in the two weeks preceding the rape. The testing also showed that, contrary to Thomas-Boyd’s trial testimony, the serology results had excluded Starks as the source of semen.
In response to media inquiries, Assistant State’s Attorney Michael Mermel, the head of felony prosecutions under Waller, maintained that the DNA results from the underpants did not prove Starks innocent. The only thing that could help Starks, Mermel said, would be his exclusion as the source of semen from inside the victim’s body. That, of course, seemed impossible at the time because a vaginal swab taken from the victim immediately after the crime was believed to have been lost or destroyed.
A few weeks later, however, the Northern Illinois Crime Laboratory located the swab, and DNA testing eliminated Starks as the source of semen on it—that is, as the source of semen from inside the victim’s body. Mermel then contended that the victim, who had moved to Mexico and since died, had not told the truth when she denied having consensual sex with anyone in the weeks preceding the rape.
Based on the DNA results, the Illinois Appellate Court reversed the conviction and ordered a retrial in 2006. Starks was released on bond. On the eve of a retrial, the prosecution dropped the rape charges, with the possibility of reinstating them later. But the aggravated battery conviction, which had not been contested on appeal, remained—even though, if Starks had not raped the victim, neither had he beaten her.
In 2011, Mermel resigned in the wake of a New York Times Magazine article exposing bizarre theories he expressed about why DNA was irrelevant in a series of Lake County cases. Michael Waller announced shortly thereafter that he would not seek reelection when his term expired in 2012.
In August 2012, the Illinois Appellate Court vacated Starks’s aggravated battery charge, still leaving open the possibility of a retrial on that charge. It was not until January 7, 2013, until the aggravated battery charges were dismissed by State’s Attorney Michael Nerheim, who had been elected to succeed Waller two months earlier.