Lawyers in murder case will try again

An expected plea bargain that angered a murder victim's family and could have set a defendant free in about 11½ years fell through Tuesday, at least temporarily, after McHenry County prosecutors and defense lawyers met with a judge behind closed doors.

Attorneys for both sides declined to say why the deal did not go through as planned, but they indicated they would bring the case of Kenneth E. Smith back to court later this week for another try.

"We're going to bring it back Thursday," Assistant McHenry County State's Attorney David Johnston said. "Other than that, I cannot comment on our plea negotiations."

Prosecutors and lawyers for Smith, 31, of Park City, had brokered a deal in recent weeks in which he would plead guilty to charges of second-degree murder and attempted armed robbery in the March 2001 slaying of Lakemoor businessman Raul Briseno.

Briseno, 35, was shot to death while chasing two would-be robbers out of his Burrito Express restaurant in McHenry. Briseno also ran a Burrito Express in Wauconda.

Under terms of the plea deal, Smith would receive a 35-year prison term. But with time served since his arrest in 2001 and likely credit for good behavior while in prison, he would be eligible for parole in 11½ years.

That would be a huge change of circumstances for Smith, who in 2003 was sentenced to 67 years in prison after a jury found him guilty of first-degree murder in Briseno's slaying. A state appellate court overturned the verdict in 2004, ruling that a judge allowed improper evidence against Smith.

Since then, an eyewitness to the murder fled the country, a second key witness died, and Smith's co-defendant, Justin Houghtaling, reneged on a deal to testify against him.

That left the McHenry County state's attorney's office more willing to cut a deal with Smith than take a shaky case to trial and risk an acquittal.

The decision, however, has not sat well with Briseno's family, who Monday said they would rather go to trial and lose than see Smith serve only about 11½ more years because of a plea deal.

"It seems that they're scared to go to trial," said Briseno's sister, Maria Carrera. "This is not fair."