Man convicted of killing restaurant owner wants out of prison while awaiting appeal

Lawyers cited "a rapid spike" in COVID-19 cases in Lawrenceville Correctional Center - where the man accused of killing a McHenry restaurant owner in 2001 awaits news of the appeal that could set him free - in asking that the man be released.

Lawyers for Kenneth Smith, 44, formerly of Park City, filed their motion Dec. 16 seeking his "immediate release on bond" from prison pending the ruling of the U.S. Court of Appeals for the Seventh Circuit.

Smith, who was convicted three times in the case, has served about 20 years of 67-year sentence for the murder of Raul Briseno, owner of the Burrito Express. In March, a federal judge vacated his latest conviction based on "evidentiary errors" that lawyers said "violated (Smith's) constitutional rights to present a complete defense.

In the prison where he is housed, 210 COVID-19 cases have been reported among inmates. Thirty-two cases have been reported among guards and other staffmembers, according to the motion.

Smith is at a higher risk for COVID-19 complications because he has asthma and other respiratory ailments, and reports show prisons and jails are the single-biggest source of COVID-19 infections in Illinois, Smith's lawyer David Jimenez-Ekman of Chicago-based Jenner and Block wrote in his motion.

Smith "suffers irreparable harm each day that he is imprisoned in violation of the United States Constitution," Jimenez-Ekman wrote. He also wrote that if released on bond, Smith would not be a threat to the public or a flight risk.

Should he be released, he would be required to wear an electronic monitoring device and follow other conditions, such as reporting to a probation officer, drug testing, refraining from committing crimes or associating with people who commit crimes, possession of weapons and excessive alcohol use.

Smith's attorneys sought his immediate release on bond in March, but the state's objection was upheld.

In November, oral arguments on the state's appeal were heard via Zoom before the U.S. Court of Appeals for the Seventh Circuit. It could be months before their final decision is announced. Smith needs two of the three judges to agree in his favor.

The reasoning to blocking Smith's release in March, was in part, there were "no reported cases of COVID-19" in the prison, Smith's attorneys wrote.

However, nine months later, this is no longer the case.

During oral arguments in November, Judge Diane Wood, one of three judges who listened to details of the case against Smith and his arguments for release, said, "It is hard to imagine a case with thinner evidence. ... I just don't see the jury getting the full story about the strength of the motive evidence."

The federal judges also called the state's case "weak" and said Smith's convictions "fell below constitutional minimums." Viewing the errors cumulatively, the Seventh Court panel concluded that "but for the errors, Smith probably would have been acquitted," Jimenez-Ekman wrote.

But as it was, Smith was convicted of first-degree murder and armed robbery for the shooting of Briseno on March 6, 2001, in what has been called a botched robbery.

However, in the last 20 years, rumors, purported confessions to friends, family members and police, and witness testimony have pointed to another man as the shooter and three different accomplices.

Those convicted along with Smith include Jennifer McMullen, who also is appealing her conviction. The Illinois Innocence Project has filed petition in McHenry County to retest DNA from the crime scene.

In the 301-page petition, lawyers claim McMullen, 39, who was sentenced to 27 years in prison, was "intimidated" and "coerced" into giving a false confession after 12 hours of questioning by police.

McHenry County State's Attorney Patrick Kenneally did not respond to a request for comment.