Prosecutors want to pull plug on plea deal in murder case

Jennifer McMullan expected to be a free woman Wednesday after serving less than six years of a 27-year prison sentence for her part in the March 2001 slaying of Lakemoor businessman Raul Briseno.

Instead, the 26-year-old Round Lake woman remained behind bars facing the prospect of serving her full term after McHenry County prosecutors announced they were pulling the plug on a deal to set her free.

The announcement comes two days after prosecutors' surprise decision not to call McMullan to the witness stand before resting their case against Kenneth Smith, the suspected gunman charged with shooting Briseno to death during a robbery of his Burrito Express restaurant in McHenry.

McMullan, who was convicted of first-degree murder in 2002 for serving as Smith's getaway driver, cut a deal with prosecutors last year that would allow her to go free immediately if she cooperated in the case against Smith. Her testimony was viewed as key because, prosecutors said, she could place Smith at the crime scene with a gun.

But prosecutors chose not to call her Monday after receiving indications she was not going to be honest on the witness stand, said Nichole Owens, criminal division chief for the McHenry County State's Attorney.

"We believe she was not going to be truthful and we were not going to put on the witness stand someone we didn't believe was going to give truthful testimony," she said.

Owens would not disclose what untrue statements they expected, but said it would come out Friday when a hearing is scheduled to determine whether McMullan violated her agreement.

The move to yank the deal infuriated McMullan defense attorney Steven Schwarzbach, who labeled prosecutors' actions "disgusting."

"Since this agreement was entered (in June 2007), we all agreed on what she was going to testify to, and she's never wavered from that," he said.

Schwarzbach claimed that trouble arose Sunday when the lead prosecutor in Smith's case asked McMullan to alter portions of her expected testimony. When she refused, Schwarzbach said, prosecutors decided not to call her as a witness.

"They wanted her to change her testimony and she wouldn't," he said.

Judge Joseph Condon is scheduled to hold a hearing Friday morning to determine whether McMullan violated the agreement. Assistant McHenry County State's Attorney Michael Combs, who made the decision not to call McMullan as a witness this week, is expected to testify about his reasons at that hearing.

In the meantime, testimony in Smith's case wrapped up Wednesday morning. Jurors were sent home for the afternoon and are scheduled to hear closing arguments Thursday morning.

Smith, 32, of Park City, faces first-degree murder and attempted armed robbery charges.