New DNA testing forces murder trial postponement

Eleventh-hour DNA testing of a ski mask linked to the 2001 slaying of Lakemoor businessman Raul Briseno is forcing another postponement in the re-trial of the man accused of gunning him down during a botched robbery.

McHenry County prosecutors and the defense for suspect Kenneth E. Smith agreed Monday to strike the trial's scheduled April 14 start date while they await the results of tests that could provide crucial evidence.

The ski mask, which matches the description of one an eyewitness said was worn by Briseno's killer, could be the only physical evidence tying Smith to the crime scene.

"This piece of evidence is important enough that we can't go into trial without it," Assistant McHenry County State's Attorney David Johnston said.

Smith, 32, of Park City, has been waiting since July 2005 for a second trial on murder and attempted armed robbery charges alleging he shot Briseno to death outside the victim's Burrito Express restaurant in McHenry.

Authorities say Briseno was killed as he chased Smith and a second man out of the business after they attempted to rob him.

The ski mask was found weeks later in the bedroom of Jennifer McMullan, a Round Lake woman imprisoned after a jury found her guilty of serving as Smith's getaway driver. Initial tests showed that hair found in the mask was similar to Smith's, but DNA testing to confirm it never was performed.

Because of a dispute over who should do the testing, the two sides agreed Monday that a defense expert will be present when scientists from the Illinois State Police extract DNA from the hair samples. If there is enough DNA to allow it, each side will be allowed to test it. If not, a judge may have to decide who should do the testing.

Smith was convicted of Briseno's murder in 2003, but a state appellate court ruled that his jury heard improper evidence. It overturned the verdict and ordered a new trial. He has remained in custody at the McHenry County jail ever since.