Prosecutors prepared for worst in Smith retrial

Published7/21/2008 12:06 AM

Here we go again.

Five years ago, Justin Houghtaling made a mess of McHenry County prosecutors' case against murder suspect Kenneth E. Smith when he reneged on a promise to testify against his onetime co-defendant.


Smith, a 32-year-old Park City man, still was found guilty, thanks largely to prosecutors dealing with Houghtaling's refusal by re-enacting his testimony against a third co-defendant, with an assistant McHenry County state's attorney playing the role of Houghtaling for Smith's jury.

While it made for good courtroom theater and helped win a conviction against Smith, it also was declared improper evidence by a state appellate court that overturned the guilty verdict.

Now, with Smith's retrial looming a few weeks away, it seems Houghtaling is up to his old tricks.

In court papers filed recently, prosecutors say they expect Houghtaling once again will refuse to testify against his pal. This despite a court order telling him he must do so and the threat of a contempt finding hanging over his dead.

This time, however, prosecutors plan to be ready for whatever Houghtaling has in mind.

In a motion scheduled to be heard later this month, the McHenry County state's attorney's office is asking a judge's permission to question Houghtaling as a hostile witness if he refuses to answer questions about Smith's alleged role in the 2001 slaying of Lakemoor businessman Raul Briseno.

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If that happens, prosecutors believe they can bring in Houghtaling's earlier testimony either through a hearsay exception or as a prior inconsistent statement. In doing so, they say, Houghtaling will remain available to Smith's defense for cross-examination, thereby protecting the accused's constitutional right to confront and cross-exam witnesses against him.

It's likely that Smith's defense, which would rather not hear from Houghtaling at all, will ask Judge Sharon Prather to deny the request.

Houghtaling, formerly of Round Lake, and Smith were charged together with first-degree murder following the slaying of Briseno during a robbery-gone-bad at his McHenry restaurant.

Houghtaling quickly cut a deal with county prosecutors in which he received the minimum 20-year sentence in exchange for his testimony against Smith and fellow co-defendant Jennifer McMullan.

Houghtaling kept his word and testified against McMullan, but when he clammed up it came time to take the witness stand against Smith.

Seen in the courthouse: A young man appeared in felony court last week wearing a T-shirt reading "This is what I wear when I don't care."

I've heard that really impresses judges. That along with cutoff shorts, sleeveless shirts and showing up in court under the influence of something no one should be under the influence of at 9 a.m.

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