Judge rejects Smith's bid to be released from prison amid spiking COVID-19 cases

Kenneth Smith's motion seeking release from prison pending his appeal due to the spiking numbers of the COVID-19 virus was denied in spite of his having asthma and being diagnosed with the disease, according to a written motion released last month by U.S. District Judge Andrea R. Wood.

Smith, 45, is housed in the Lawrence Correctional Center in Sumner, where he is serving a 67-year prison term for the 2001 murder of McHenry restaurant owner Raul Briseno.

He is awaiting final ruling from the U.S. Court of Appeals for the Seventh Circuit on his third appellate victory issued last March. The panel, made up of three judges, heard oral arguments in November. Smith could be tried a fourth time for the murder or freed.

Smith, who denies he is the killer, needs two of the three judges to rule in his favor.

In the meantime, Smith, who has asthma, filed a motion for "immediate release on bond" for fears of spiking COVID-19 cases in the prison.

Smith has since tested positive for the virus. He reported experiencing difficulty breathing, body aches and headaches, and claimed to not have received adequate medical care, according to the ruling.

The recent appeal, argued in November, asked his conviction be vacated and pointed to "evidentiary errors," which lawyers said "violated (Smith's) constitutional rights to present a complete defense."

His attempt at being released while his appeal is pending was denied, in part, because although the judges' questions may "strongly" indicate they will side with Smith and grant his release - and may have reflected "sympathy" to Smith's case - it is not an indication of how the panel will ultimately rule, according to the written ruling.

During November's oral arguments, judges questioned the omission of certain pieces of evidence, pointing the finger at another potential shooter. They also questioned the strength of evidence presented. Their questions seemed to cast doubt on the state's case and indicated they thought Smith was denied a fair trial.

"It is hard for me to imagine a case with thinner evidence," Chief Judge Diane P. Wood said at the time. " ... I just don't see the jury getting the full story about the strength of the motive evidence."

However, in the ruling denying Smith's release due to COVID-19, Judge Andrea R. Wood wrote: "(T) he nature and tone of any particular judge's questioning is not necessarily predictive of how they will ultimately rule."

It could take months before the Seventh Circuit announces its ruling.