Opinion: Exoneree’s Dispute Highlights Tension for Conviction Review Units

By Jordan Fries

Lake County exoneree Bennie Starks, 55, must continue an arduous battle to maintain his legal innocence against persistent local backlash without the public support of the very office that exonerated him. Starks, who wrongfully served 20 years in prison for crimes he did not commit, already suffered through six years of relentless litigation post-release until the last of his charges (battery) was dismissed by State’s Attorney Mike Nerheim in 2012.

But on December 8, 2014, lawyers for the Waukegan police and forensic experts involved in his case – both private parties – filed a petition in Lake County seeking a revocation of Starks’ certificate of innocence, which was granted by a Lake County judge more than a year ago. Despite DNA evidence exonerating Starks, the petitioners here argue that although the purported victim falsely concocted her rape accusation, the battery allegation against Starks was accurate and should stand. Irrespective of whether the petitioners even have standing to bring such a revocation action – the private parties involved are implicated in Starks’ ongoing suit against the city of Waukegan – Starks’ attorneys find the claim “outrageous” and its message threatening to all exonerees, per the Chicago Tribune (read more about the attempt to revoke Starks’ certificate of innocence here). Of course, a certificate of innocence is not just legally valuable in granting exonerees the standing to pursue civil remedies against the cities liable for their wrongful convictions. In addition, a certificate is symbolically significant in the healing process both for enabling the exoneree’s transition into a stable life and restoring public faith in the criminal justice system.

Perhaps most curious in Starks’ grueling ordeal, however, is the Lake County State’s Attorney’s Office’s apparent refusal to take a stance on the petitioners’ attempts to vacate Starks’ certificate. After his election to the position of Lake County State’s Attorney in 2012, Nerheim made it a priority to establish a review unit to investigate potential wrongful convictions made by his office. “The image of my office has been tarnished,” Nerheim said in specific reference to Starks’ wrongful conviction. “[O]ne of my top priorities is to restore that.” With that goal in mind, Nerheim dismissed Starks’ remaining charge despite years of resistance from the previous State’s Attorney. His office has also looked into at least 20 additional Lake County cases, according to the Brooklyn Daily Eagle. Further, Nerheim’s office should be lauded for the makeup of its conviction review unit, which is composed of retired judges, prosecutors, and defense attorneys who are all from outside Lake County. The inherently objective nature of Lake County’s conviction screening body stands in contrast to Cook County’s entirely in-house review system.

So, why would Nerheim’s office choose not to publicly reinforce the work they themselves performed in vacating Starks’ conviction by supporting his innocence and speaking out against these private party challenges to its credibility? Essentially, the petitioners’ suit rattles the finality of Nerheim’s office’s investigation and undermines its decision to dismiss the charges against Starks. If Nerheim stands by the undoubtedly exhaustive evidentiary backlog his office’s conviction review unit scoured, then his decision not to speak out against petitioners’ claim and defend the integrity of his office’s work is confusing at best, even disturbing in its political implications.

First, it is essential to assert that Nerheim has given no reason to doubt the authenticity of his admirable mission to restore confidence in the Lake County State’s Attorney’s Office and review questionable convictions with a clear, unbiased lens. It is also worth reiterating that the standard for proving actual innocence by a preponderance of the evidence is, of course, different from the beyond a reasonable doubt standard needed to convict someone of a crime. But if Nerheim’s office is unwilling to stand against the Waukegan police and forensic experts who were essential in convicting Starks in the first place, then it is not simply inviting speculation into its motives and into the work conducted by its own conviction review team. As a result of its silence, Nerheim’s office is also prolonging the injustice levied against an already-exonerated man. Starks, who was released from prison roughly nine years ago, is precisely the sort of individual Nerheim ostensibly sought to protect when he assumed office three years ago and vowed to rebuild trust in Lake County prosecutions.

Although Nerheim could harbor several legitimate reasons for choosing not to publicly comment on the attempted revocation of Starks’ innocence certificate, it is impossible not to contemplate the shared role of Lake County prosecutors and the Waukegan Police Department in arresting and convicting guilty individuals as one of them. This is, of course, a goal shared by all reasonable citizens, and, assuredly, neither the Lake County State’s Attorney’s Office nor the Waukegan police wish to enable the occurrence of wrongful convictions. Nothing in this post is meant to suggest any wrongdoing or mistake of purpose in their joint missions. In addition, I understand the difficult balancing act of respecting the rigorous work that went into obtaining a conviction in the first place while delicately reviewing the conviction with sufficient impartiality to ensure that the prosecutors effectively brought a just outcome. But the petitioners’ action against Starks is undeniably prolonging the injustice imparted by a wrongful conviction – an injustice Nerheim promised to correct through the establishment of a Lake County conviction review unit after he was elected.

With this mission of righting past wrongs held in highest regard, I believe that Nerheim must speak out against the petitioners’ attempted revocation of Starks’ certificate regardless of the often-overlapping interests of the Lake County State’s Attorney’s Office and the Waukegan Police Department. This action would ensure public trust in the credibility of Lake County’s conviction review procedures, bolster the work Nerheim’s office performed in vacating Starks’ conviction, and, most importantly, prevent the Waukegan Police Department from terrorizing an exoneree with utter impunity over a mistake Lake County authorities made almost three decades ago. After 20 years spent wrongfully behind bars, Bennie Starks has suffered enough.

Note: The post reflects the viewpoints of the author and not the Life After Innocence organization.

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