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Exonerated man’s ordeal ends: ‘I am overwhelmed with joy’

By Lisa Black, Tribune reporter

12:26 pm, January 7, 2013

A wrongfully convicted man who spent 20 years in prison for rape and battery had a happy final day in court today as Lake County officially dropped the last charge in a case that dates back to 1986.

“I don’t even have any words. I am overwhelmed with joy. It’s finally over,” Bennie Starks said outside the Lake County courthouse this morning, minutes after all the details of dropping the case had been ironed out.

Days into his first term in office last month, Lake County State’s Attorney Mike Nerheim agreed to vacate the final charge of aggravated battery, reversing the course of retired Lake County State’s Attorney Michael Waller.

“For 2½ decades, a dark cloud has shrouded this courthouse,” Starks’ attorney Jed Stone said. “Today a ray of sunlight shines through that cloud because of Mike Nerheim.”

The case has a byzantine history that reaches back to 1986.

Starks, 53, who lives in Chicago, spent 20 years in prison for raping and battering a 69-year-old woman in Waukegan before DNA pointed away from him.

The victim had identified Starks as her attacker, authorities had said his jacket was found near the scene and bite marks on the woman matched him. His attorneys called the dental evidence into question, and he said his jacket had been stolen from him.

He was freed six years ago after DNA evidence indicated the woman had had sex with someone else and appeals judges ordered a new trial. Prosecutors continued to pursue the rape charge against Starks, arguing the woman must have had consensual sex with another man, although she said the opposite at trial.

Prosecutors finally dropped the rape charge in May, but the battery charge survived because it had been split from the rape case by a prior court ruling.

In June, the appeals court ordered Lake County to hold a hearing where Starks’ lawyers could argue for a new trial on the battery charge. Lake County called on appeals judges to reconsider and, when they declined, asked the state Supreme Court for review.

The Illinois Supreme Court declined to do so on Nov. 28, one week before Nerheim said he would end Starks’ prosecution.

“He’s finally cleared his name,” said Lauren Kaeseberg, an attorney who had been working with Starks since 2004 for the Innocence Project, which uses DNA evidence to exonerate people who have been wrongly convicted.

“He’s exonerated in every way … he can move forward … now he can explain a 25-year gap in his work history.”

lblack@tribune.com

Twitter: @LisaBChiTrib

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How accurate is bitemark analysis?

Answered by The Discovery Channel

Bite marks are not as distinctive as fingerprints or DNA. Forensic dentists can tell a lot about someone from his or her teeth or from bitemarks, but the analysis can be flawed or misleading. There are countless examples of people who were convicted on the basis of bitemark analysis and later exonerated by subsequent DNA evidence. Critics of bitemark analysis point out that forensic dentists receive a lot of information about a suspect before they perform an analysis of a bitemark. This could inadvertently lead dentists to force evidence to fit investigators’ needs. Critics also point out that forensic dentists can give juries the impression that bitemarks are completely unique or can identify a person with 100 percent certainty, and that is not the case.

Balko on the Bennie Starks Case

By David Averill

Radley Balko of the Huffington Post published a nice comprehensive piece on his blog The Agitator concerning the defamation suit filed by two Chicago dentists against Michael Bowers. Balko opens his story by saying “Michael Bowers has been one of the heroes to shed light on the bite mark matching fraud. He has personally exposed a number of quacks, and contributed to the National Academy of Sciences report that found no scientific basis for the idea that bite marks on human skin can be definitively matched to one person, to the exclusion of everyone else.”

The two forensic dentists suing Bowers testified that the bitemark found on the shoulder of the victim to be a “definite match” in the wrongful conviction of Bennie Starks. DNA has since been found from semen and from the bitemark that did not implicate Bennie Starks. Starks has been released from prison after serving many years and is awaiting the decision from the prosecutor whether to be re-tried. What is most amazing is that despite the DNA found not to belong to Starks and the bitemark analysis being severely criticized by two excellent odontologists, the two expert odontologists for the prosecution stand by their opinion that Starks bit the women. The frivolity of the suit is further exposed when the damages include loss of income from dental patients to their private practices.

Review of Bitemark Evidence in the People of Illinois v. Bennie Starks

Balko finishes his piece exposing how the ABFO dental expert Dr. Lowell Levine who was interviewed in the CNN story also made a mistake in mis-identifying an individual via bite marks. But like the two Chicago dentists, Dr. Levine remains defiant that a mistake was made despite DNA implicating a man other than that identified by Levine to be the biter.

Prosecutor, DNA at odds

In 3 cases, Lake County prosecutor Michael Mermel is willing to pit other evidence against genetic tests that exclude defendants

By Steve Mills, Chicago Tribune reporter
December 15, 2008 Monday

DNA evidence has been widely embraced over the last two decades as a powerful forensic tool to prove a defendant’s guilt or innocence. But in Lake County, authorities have sometimes pressed for convictions even when the DNA doesn’t match a suspect.

Consider three active cases overseen by Michael Mermel, chief of the criminal division for the Lake County state’s attorney’s office:

When DNA evidence excluded a man convicted in the rape and battery of a 68-year-old woman, Mermel suggested the victim had consensual sex with someone else.

When DNA evidence excluded a man in the rape and murder of an 11-year-old girl, Mermel and another prosecutor suggested that the girl may have been sexually active. The DNA, he said, was a “red herring.”

And, just recently, when lawyers for the man charged in the killing of his 8-year-old daughter and her 9-year-old friend said in court that DNA evidence from semen excluded him as the perpetrator, the Lake prosecutor had another explanation.

Mermel said DNA may have gotten inside the 8-year-old’s body as she played in the woods at what became the crime scene — a place where Mermel said some couples go to have sex. The girl was found fully clothed.

In each of the cases, all likely to go to trial in the new year, Mermel argues that other evidence, mainly confessions and witness identification, carry greater sway than the genetic material.

That attitude startles some DNA experts and others in the criminal justice system.

“The vast majority of prosecutors in the United States generally are willing to walk away from a case where DNA excludes a suspect,” said Joshua Marquis, an Oregon prosecutor and member of the board of directors of the National District Attorneys Association.

\ ‘Forensically significant’

In these Lake County cases, several DNA scientists and others say the prosecutor’s explanations are difficult to imagine.

“It’s just amazing how convincing DNA can be if it supports your case and how unconvincing it is when it doesn’t support your case,” said William Thompson, a lawyer and DNA expert at the University of California at Irvine.

Defending his office’s approach, Mermel said Lake prosecutors believe in DNA “when it is forensically significant.”

“If we thought the evidence excluded the defendant in any of these cases,” he said, “we’d dismiss them.”

Mermel pointed to another rape case where his office supported vacating a man’s conviction after DNA excluded him as the source of semen in the victim.

But in that case the defendant had served his prison sentence and been released.

\ ‘DNA ought to humble us’

At a hearing six years ago in the case of Bennie Starks, who had been convicted of raping a 68-year-old woman, Mermel made an intriguing vow.

Though a semen stain on the victim’s underwear contained a genetic profile different from Starks’ DNA, Mermel said it was not enough to prove his innocence. What would help Starks’ claim, Mermel said, was if the semen came from inside the woman’s body.

“If this DNA … were to come from the victim herself, I would be standing over there advocating the side that the defense has in the case,” Mermel said, according to a transcript.

Three years later, a vaginal swab from the rape kit on the woman was found; again, the DNA evidence did not match Starks’ profile.

But Mermel still argued it failed to exonerate him in the 1986 rape case.

In a recent interview, the prosecutor said that because the profiles from the underwear and vaginal swab were the same, they both could have been from someone with whom the woman had consensual sex.

Starks was awarded a new trial in 2006 based on the DNA evidence. After serving 20 years of a 60-year prison term, he was released on bond. When the case comes to trial again next year, Mermel plans to use the victim’s identification of Starks as her attacker.

But eyewitness identification, while still widely used, has been proven fallible by DNA. In three-quarters of the more than 200 DNA exonerations nationwide, eyewitness identifications were central to the state’s case, according to the Innocence Project, which represents inmates seeking to prove their innocence with DNA.

Mermel also plans to argue that bite-mark evidence — the comparisons of bite marks on a victim to a suspect’s teeth — links Starks to the case.

But Mermel’s confidence in bite-mark comparisons contrasts even with some of the forensic discipline’s leading practitioners who, after embarrassing reversals linked to DNA evidence, now argue that bite marks are best used to exclude suspects, not to identify them.

Prosecutors also will use the fact that Starks’ jacket was found near the crime scene.

Arguing that Starks left his coat there, Mermel said it would help jurors see past the DNA. None of the defense’s case “makes any sense,” he said. “None of it passes the most elementary credulity test.”

Starks has said he was drinking the night of the attack and was robbed of his money and coat. His lawyers insist the DNA is the most telling piece of evidence in the case and are perplexed that the prosecutor continues to fight it.

“The DNA ought to humble us,” said Starks’ lawyer, Jed Stone. “But it doesn’t humble some people.”

\ Child cases most puzzling

Of all cases, those where genetic evidence in sperm is recovered from a child are particularly compelling because there is rarely any explanation other than a sexual assault.

Children were the victims in the other two pending Lake County DNA cases. In both, the victims were found with semen in their bodies, and in both cases DNA tests revealed genetic profiles that do not match the defendants’ DNA.

Juan Rivera sits in the Lake County Jail awaiting a third trial in the 1992 rape and murder of Holly Staker, 11.

Early on, primitive DNA testing excluded Rivera. But prosecutors were armed with confessions from Rivera and won two convictions. Rivera’s lawyers said that under intense police interrogation, he experienced a psychological breakdown and gave a false confession. Prosecutors said he knew facts only the killer could have known.

More sophisticated DNA tests in 2005 isolated a genetic profile from semen that did not match Rivera and won him the third trial. As he has in the past, Mermel dismissed the evidence’s significance, saying Rivera told detectives he did not ejaculate during the rape.

“Is it some other killer, contrary to the evidence we have against Mr. Rivera?” Mermel asked. “We say it’s not.”

One of Rivera’s attorneys, Jeff Urdangen of Northwestern University’s Center on Wrongful Convictions, said it “baffles me” that prosecutors put more weight on the confession than the DNA.

“As we’ve said in our pleadings, it’s very rare for a prosecuting agency to continue with a prosecution after a DNA exoneration,” Urdangen said.

In the other case, Jerry Hobbs is charged with the killings on Mother’s Day 2005 of his daughter Laura, 8, and her friend Krystal Tobias, 9, in Zion. He has pleaded not guilty.

As in Rivera’s case, the anticipated centerpiece of the prosecution’s case is a confession, a short but detailed statement from Hobbs in which he says he stabbed the girls repeatedly after Laura refused to come home and Krystal held out a small knife at him.

“I am sorry for what happened, things just got out of hand and I lost it,” Hobbs says in the confession, which he now disavows.

Public defenders in the case said in court that DNA from semen from oral, rectal and vaginal swabs of Laura produced a profile that did not match Hobbs’ DNA.

But Mermel noted that prosecutors had not charged Hobbs with a sex crime, saying there was no evidence of sexual trauma. He said, too, that it was possible the small amount of semen in her was picked up as she played in the woods, where some couples have sex.

And Mermel disagrees with the contention by Hobbs’ attorneys that the DNA is evidence that someone else attacked the girl.

“It is such a goofy logic leap [that] because somewhere in her life she came into contact with a sperm cell it means she was sexually assaulted,” Mermel said. “To take this leap that this is the identity of the mystery killer, I don’t know where everybody gets this idea.”

Prison Door Swings Open

Man out on bail
rape conviction overturned

October 05, 2006|By Dave Wischnowsky, Tribune staff reporter.

Wearing olive cargo pants so new the creases still showed, Bennie Starks stepped outside the Lake County Jail complex Wednesday afternoon, a free man for the first time in 20 years.

“Everything looks so different,” Starks, 47, said while surveying the rain-soaked downtown streets of his native Waukegan. “Even the air smells different than it did in prison.”

Convicted in 1986 of sexually assaulting a 69-year-old Waukegan woman, Starks was released Wednesday on $100,000 bail after DNA tests showed that a crime-lab analyst presented false scientific evidence at his trial.

Sentenced to 60 years in prison for a crime that technology now says he did not commit, Starks always maintained his innocence.

“I knew this day would come,” he said. “I just didn’t think it would take this long.”

Starks’ saga isn’t over. The Lake County state’s attorney’s office has appealed the Illinois Appellate Court’s decision in March to overturn his convictions on two counts of sexual assault. A ruling on the appeal is expected by the end of the year.

Starks also was convicted in 1986 of battery against the woman, who has since died, and was sentenced to 5 years in prison for that crime.

That conviction has not been overturned, as Lake County prosecutor Michael Mermel stressed Wednesday.

“He’s still guilty,” Mermel said. “[Starks’ lawyers] are going to pretend that he’s an innocent man freed by the Appellate Court, but that’s not the case. That’s not true.”

Starks’ attorneys, Vanessa Potkin of the New York-based Innocence Project and Jed Stone of Waukegan, plan to challenge his battery conviction Oct. 19 in Circuit Court.

At his trial 20 years ago, the woman identified Starks as her attacker, alleging that he pulled her into a ravine and beat, bit and raped her. A Gurnee dentist said he matched Starks’ teeth to a bite mark on the woman, and Starks’ jacket was found near the scene of the attack.

A dry-cleaning receipt found in the coat’s pocket led police to Starks, but he said he had spent the evening in a nearby tavern and had been robbed of his money and coat on the way home.

Starks’ attorneys have questioned the bite mark, saying the methodology used to study it in 1986 was faulty.

In 2002, after DNA tests of the woman’s underwear isolated a male profile that was not Starks’, his lawyers filed a motion for a new trial, which was denied.

Two years ago, however, a swab taken in 1986 from the woman’s body but thought to have been lost was discovered in the Northern Illinois Crime Lab. After more than a year of legal wrangling, it was tested and the DNA did not match Starks’.

The woman testified in court that she had not engaged in consensual sex in the two weeks before the attack, but Mermel has said he now believes differently.

“She testified to a bunch of different things,” he told the Tribune in December when the swab’s DNA results were released. “It doesn’t matter, because the rest of the evidence is overwhelming.”

Starks and his lawyers dispute Mermel’s opinion.

“I think they knew it was faulty forensic testing but went along with it anyway,” he said.

On Wednesday, Starks–whose bail was funded by an anonymous donor who contacted the Innocence Project last week–said puzzling over the details of his case is for another day.

“Today, I just want to enjoy the fresh air and even the rain,” he said, smiling after a four-hour van ride to Waukegan from Illinois River Correctional Center in Downstate Canton. “I just want to see everyone I can. Cousins, aunts, grandmothers, everyone.”

Starks’ sister, Kim, met him Wednesday at Lake County Jail, their first face-to-face encounter in a decade.

“God has loosened the chains and set the captive free,” she said in tears while bear-hugging her older brother. “It was tough for the family, but we made it through on the strength of God.”

On Wednesday afternoon, Starks traveled to his aunt’s home in Chicago, where he plans to live, and had dinner with his mother and other relatives.

He plans to reconnect with his 27-year-old daughter, Tiffany, who lives in Florida, and hopes to contact his son, Brandon, 20, who was an infant when Starks last saw him.

Starks said there was a time when he was angry about his fate, but since accepting the Lord eight years ago, that has passed.

Stone, his attorney, encouraged that mind-set Wednesday.

“If you’re comfortable with yourself, there’s no reason to feel anything but compassion,” Stone said. “A series of people made a series of mistakes that stole a portion of this man’s life.

“But there’s no reason to be angry. You just regroup and help Bennie get his life back.”

With that remark, Starks did a bunny hop outside the jail.

“Amen,” he said.

– – –

Starks case

Sept. 25, 1986: Bennie Starks is convicted of sexually assaulting a 69-year-old Waukegan woman.

March 15, 2002: Lawyers for the Innocence Project ask for a new trial because DNA tests failed to link the defendant to the crime.

May 18, 2004: Starks’ lawyers again ask for a new trial after saying they have uncovered evidence that a crime-lab analyst testified falsely at his trial.

March, 23, 2006: The Illinois Appellate Court orders a new trial for Starks, ruling that DNA tests have shown a crime-lab analyst presented false scientific evidence at his trial.

Sept. 21, 2006: The Illinois Appellate Court orders Starks released on $100,000 bail, pending a retrial.

Guilty, said bite expert. Bogus, says DNA

As forensic scientists scramble to shore up a shaky field, new evidence casts doubt on an old conviction
By Maurice Possley and Steve Mills
Chicago Tribune reporters
July 10, 2008

MILWAUKEE — In a cubicle at Marquette University, a professor of dentistry and a former prosecutor are trying to use computer science to shore up a beleaguered forensic discipline.

But as the two men try to lay the groundwork to provide a statistical backbone to preserve bite-mark comparison’s place in the courtroom, they are being confronted with new evidence from a 1984 murder case that suggests their own use of this controversial analysis may have sent an innocent man to prison.

Dr. L. Thomas Johnson, a veteran forensic odontologist —or dental scientist—at Marquette, and a colleague, law professor Daniel Blinka, worked together on that criminal case, the first in Wisconsin to use bite-mark evidence. Blinka was the prosecutor who brought the charges, and Johnson testified that the bite marks on the victim were made by Robert Stinson.

Stinson, who has always insisted he was innocent, now has new hope to win his freedom: DNA tests exclude him as a source of saliva found on the victim, and a defense-commissioned study concludes the testimony from Johnson and another forensic dentist was inaccurate.

His case, as well as Johnson’s new research, raises a question that has been asked frequently in recent years: Can bite-mark comparison be trusted or is it a junk science?

Johnson and Blinka stand behind their work in the Stinson case and insist that bite-mark analysis is credible.

“What we want to show,” Johnson said during an interview at Marquette’s dental school, “is that it’s not a faulty science if it’s done properly, and there is a solid statistical basis behind it.”

Johnson said his and Blinka’s new research was prompted in part by a 2004 Tribune series, “Forensics Under the Microscope,” that showed that DNA tests have proved wrong many of the leading bite-mark experts, including the discipline’s founding fathers.

One of them, Dr. Raymond Rawson, helped send two men to Death Row in Arizona, and in both cases his work was later undermined, with one of the men set free. He also testified against Stinson.

The Tribune in its series also examined 154 cases involving bite-mark comparison, mostly murders and rapes, that reached appeals courts around the country and found that, in more than one-quarter of the cases, forensic dentists for the prosecution and defense gave diametrically opposed opinions.

Injecting science

Johnson’s research aims to provide scientific underpinning to the much-criticized discipline by establishing a database similar to the fingerprint database. Johnson believes that if a sufficient number of images of sets of teeth are put into a computer, all with consistent marking points, forensic dentists could estimate the frequency of dental patterns.

For the study, Johnson gathered dental molds from more than 400 Air National Guard members and scanned them into a computer. He then established six identifying characteristics.

“This is only a starting point,” Johnson said. “This isn’t the Rosetta stone that’s going to solve all the problems. We’re not ready for prime time yet. But what it’s done is answered the question of whether there is any science behind this.”

David Sweet, a professor of odontology at the University of British Columbia who has been working on a similar study, said Johnson’s research is much needed.

“Right now it’s a discipline based on an opinion,” Sweet said. “But in order to express that opinion in real terms, what we need to know is if anybody in the population has the same dental traits as the suspect.”

Other odontologists are skeptical, saying Johnson’s study sample is too small and does not represent the wider population. Any conclusions drawn from it, they say, would be misleading.

“This is the epitome of junk science cloaked as academic research,” said Dr. Michael Bowers, a California odontologist and a frequent critic of bite-mark comparisons. “I don’t think his claims are supported. The study just doesn’t pass muster.”

Over the past two years, as Johnson was doing his research, lawyers for Stinson were uncovering new evidence in the 1984 murder of 63-year-old Ione Cychosz, who was beaten to death and bitten eight times. Stinson was sentenced to life in prison for Cychosz’s murder.

The DNA test results — from saliva on Cychosz’s sweater — and the study from four other bite-mark experts have been turned over to Milwaukee County prosecutors for their review. Stinson’s attorney, Byron Lichstein of the Wisconsin Innocence Project, has asked prosecutors to vacate Stinson’s conviction. He is scheduled to meet with the prosecutors Thursday.

“At this point, we feel there is more review that needs to be done in this case before any decision is made,” said John Chisholm, Milwaukee County district attorney.

Johnson examined Cychosz’s body the day it was found nude and battered near her home. He worked with a police sketch artist to come up with a diagram of the attacker’s teeth and determined that the suspect had a missing upper front tooth.

A detective on the case, James Gauger, who has since retired, recalled in an interview that after Johnson said the perpetrator had a missing tooth, he and his partner visited Stinson’s home as part of their neighborhood canvass. Stinson lived in a home adjacent to the yard where the body was found.

“My partner told him a couple of jokes, and Stinson laughed,” Gauger said. When they saw a missing tooth, “we knew we had our man.”

After Johnson said he had linked Stinson’s teeth to the bite marks and Rawson concurred, Stinson was arrested.

“I was an easy target,” Stinson, now 43, said in a recent interview at the New Lisbon Correctional Institution. “I was young. I had no education, and they took advantage of that.”

At his three-day trial in December 1985, Stinson insisted he was innocent. The only evidence against him was the bite-mark testimony. Neither Johnson nor Rawson used any of the qualifying language that experts in the field say bite-mark analysts should use when testifying.

Johnson concluded the bite marks on Cychosz “had to have been made by teeth identical” to Stinson’s and there was “no margin for error in this.” Rawson called the evidence “overwhelming” and said “there was no question there was a match.”

Skeptical review

Three years ago, Stinson wrote to the Wisconsin Innocence Project at the University of Wisconsin Law School. After taking his case, Lichstein, working with the cooperation of Milwaukee County prosecutors, obtained the DNA tests and commissioned the review of Johnson and Rawson’s findings.

The group was headed by Gregory Golden, current chairman of a committee of the American Board of Forensic Odontology that oversees guidelines for the use of digital imaging in bite-mark analysis — a tool that has improved the ability of odontologists to compare bite marks.

The case also was examined by forensic experts from Texas, California and Illinois. In their report, the experts said that while some modern methods were not available in 1984, “it should be emphasized that Drs. Johnson and Rawson should have excluded Robert Lee Stinson even based on methods and standards available at the time … because there is little or no correlation of Robert Lee Stinson’s dentition to the bite marks.”

The report also criticized Johnson’s testimony that there was no doubt Stinson’s teeth left the marks. “That statement has no evidence-based, scientific, or statistical basis and drastically overstates the level of certainty attainable using bite mark analysis,” the report said.

Johnson, in an interview, defended his work in the case and said he has seen nothing to suggest Stinson is innocent. “I would have to say that I respectfully disagree with them,” he said.

Rawson declined to comment.

Blinka also rejected the report. “As I sit here now, do I have any reasonable doubt that Stinson is guilty?” he said. “No, I don’t.”

Stinson, meanwhile, said he has been told that he cannot qualify for parole unless he admits guilt.

“But I won’t do it. I’m innocent,” he said. “This is a huge mistake. I am not a murderer. I’m an innocent person that wants his freedom back.”

mpossley@tribune.com

smmills@tribune.com
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