Murder conviction overturned for third time

Nineteen years ago, two masked men entered the Burrito Express in McHenry in an attempted armed robbery. Restaurant owner Raul Briseno and an employee chased the men outside into the parking lot, shots were fired and Briseno was killed.

Three times, Kenneth E. Smith, 44, formerly of Park City has been convicted of first-degree murder and attempted armed robbery. But a federal judge has ruled he is entitled to yet another trial.

Smith's brother, Robert Smith, 39, of Ringwood, said he and his family "are praying" the McHenry County state's attorney's office "does the right thing" and sets him free without a fourth trial.

Calling the state's case against Smith "extremely thin" and his conviction a "miscarriage of justice," U.S. District Court Judge Andrea R. Wood cited numerous errors violating Smith's constitutional rights -- including the exclusion of evidence that pointed to another possible suspect.

McHenry County State's Attorney Patrick Kenneally, who was not the state's attorney at the time and did not try the case, noted that "the conflicting testimony in this case was heard and considered by 36 jurors, all of whom resolved the conflicts in the testimony against Mr. Smith beyond a reasonable doubt.

Kenneally added that Smith's case had been appealed to the Illinois Second District as well as the Illinois Supreme Court, each of which "ultimately affirmed the decision of the unanimous jury."

Smith was convicted along with three other defendants. Justin Houghtaling, 37, formerly of Round Lake, pleaded guilty in 2001 to first-degree murder and was sentenced to 20 years in prison. Jennifer McMullan of Round Lake was convicted of murder and attempted armed robbery in 2002 and sentenced to 25 years in prison. She is appealing her sentence and is being represented by the Illinois Innocence Project. David Collett, 37, of Spring Grove pleaded guilty to aggravated armed robbery in September 2001 and was sentenced to five years in prison.

After learning this week of the federal judge's ruling, Briseno's widow, Leticia Briseno, had only a few words.

"When and if this goes to court, we will stand united as a family, as we have for the last 19 years," she said. "This will not bring us down."