Defense team urges judge to reverse self, allow plea deal

Lawyers for murder suspect Kenneth Smith again are urging a McHenry County judge to reconsider her decision to block his guilty plea to a reduced charge, arguing that the court's reasoning for rejecting the plea is incorrect.

In an eight-page motion filed Thursday afternoon, Smith's defense says Judge Sharon Prather was mistaken when she said that allowing him to admit guilt to a charge of second-degree murder, instead of the first-degree murder charge he currently faces, would require her to distort the facts of the case.

The motion is a response to Prather's Nov. 2 ruling rejecting the plea bargain and labeling it a manifest injustice to the victim's family. The judge also sharply criticized the lawyers proposing the deal, saying they were "dangerously close to serious ethical violations."

Under the proposed deal, Smith, 31, of Park City, would admit guilt to second-degree murder and attempted armed robbery for the March 2001 killing of Lakemoor businessman Raul Briseno during a botched holdup of his Burrito Express restaurant in McHenry.

Smith would get the maximum 35-year sentence, but because of time already spent behind bars and likely days off for good behavior, he could go free in about 11½ years.

To accept the proposed deal, Prather said, she would have to distort the facts of the case to fit with a second-degree murder charge.

Smith's lawyers disputed that Thursday, saying testimony from the slaying's only eyewitness supports a second-degree murder finding.

According to that eyewitness, Briseno was shot to death by the would-be robbers after he chased them out of the restaurant with a knife, captured one of them and attempted to bring him back into the business.

At that time, the defense argues, the gunman could have believed he needed to shoot Briseno to defend the other man. As such, second-degree murder is an appropriate charge.

"There is evidence to provide a factual basis to find that Briseno was not killed when he resisted the robbery, but rather Briseno was killed while dragging a man across a street, through a parking lot, at knifepoint," the defense states.

Smith was tried and found guilty of first-degree murder in 2003. But an appellate court overturned the verdict, and Smith's 67-year prison sentence, a year later, ruling that jurors heard improper evidence.

Prather is scheduled to hear arguments Dec. 7 on the latest motion by Smith's defense.