Twice-convicted killer seeks 3rd trial in slaying of McHenry restaurateur

Defense attorneys representing convicted killer Kenneth Smith asked a state appeals court for a third trial Wednesday, citing "numerous errors" in his last trial.

Smith, 34, of Park City, is serving a 67-year prison sentence for his 2008 conviction for first-degree murder in the March 2001 killing of Raul Briseno during a botched holdup of the victim's Burrito Express restaurant in McHenry.

The 35-year-old Briseno, who also owned a Burrito Express in Wauconda, was shot to death as he chased two would-be robbers out of the restaurant.

It was Smith's second trial on the charge. He originally was found guilty in 2003, but two years later had the conviction overturned by the same Second District Appellate Court his case appeared before Wednesday.

His attorney, David Jimenez-Ekman, said Smith deserves a new trial because his defense was barred during the last trial from calling three witnesses he argued would have proven his client had nothing to do with the slaying.

Jimenez-Ekman also argued there was no physical evidence tying Smith to the crime.

"Mr. Smith received a fundamentally unfair trial," he told a panel of three justices. "Trial proceedings were filled with errors from the beginning to the end."

Prosecutors concede that there was no "smoking gun," in the case, but say enough people came forward to implicate Smith in the murder.

"Our evidence taken together was sufficient to prove the defendant guilty," said appellate prosecutor Sally Swiss.

She disputed defense claims testimony from the three barred witnesses would have kept Smith out of prison.

"We don't know what they would have said," Swiss said.

The appellate court is expected to release a written decision on the matter later this year.