Convicted killer seeks third trial, claims judge erred repeatedly

A Lake County man convicted last month of murdering Lakemoor businessman Raul Briseno filed court papers this week seeking a new trial, claiming his judge made more than 30 errors and prosecutors failed to disclose their doubts about a potential witness.

The claims are part of a 363-page filing by lawyers for Kenneth E. Smith arguing that the combination prevented him from receiving a fair trial.

Smith, 32, of Park City, was found guilty Aug. 21 of first-degree murder and aggravated attempted robbery charges alleging he killed Briseno Marc 6, 2001, during a botched holdup of the victim's Burrito Express restaurant in McHenry.

He is being held in the McHenry County jail pending sentencing Oct. 22.

Along with numerous claims of error during the trial, the bid for a new trial focuses on two questions: Whether McHenry County Judge Sharon Prather had the authority to reject a plea bargain worked out between Smith's defense and prosectors; and whether prosecutors were required to tell the defense they had doubts about one of their witnesses.

Those doubts about Jennifer McMullan, the Round Lake woman convicted of serving as Smith's getaway driver, ultimately led prosecutors not to call her as a witness and revoke her deal to testify.

Even so, Smith's defense claims, prosecutors were required to disclose they had reason to believe McMullan would had given false testimony.

"The state failed to provide Mr. Smith with evidence that a witness said (McMullan) fabricated her story in order to get out of prison," the motion states.

Nichole Owens, criminal division chief for the McHenry County State's Attorney, said prosecutors have no legal obligation to share their thoughts on a witness.

"Our subjective opinion of her is not discoverable, not admissible and not relevant to the issues," Owens said.

The defense also argues that Prather overstepped her authority by rejecting a pretrial plea bargain in which Smith would have admitted guilt to second-degree murder and spent another 11 years in prison.