Kenneth Smith, released from prison after serving 20 of his 65-year sentence for the 2001 murder of a McHenry restaurant owner, claims prosecutors “overlooked evidence” pointing to the real killer, court records show.
Smith, who has petitioned the court to issue him a certificate of innocence, made the argument in a rebuttal filed last week, pushing back against prosecutors’ objections to his request.
Smith, 47, was convicted of first-degree murder and attempted armed robbery in connection to the March 6, 2001, shooting of Raul Briseno Sr., who was killed in what prosecutors have called a botched robbery at his restaurant, Burrito Express.
Smith’s conviction was overturned twice on appeal, and he was convicted again in a third trial. With each conviction, he was sentenced to 65 years in prison.
The higher court ruled that “taking all evidence in favor of the prosecution, the evidence was insufficient to sustain Mr. Smith’s conviction, and no reasonable jury could have found him guilty.”
Earning the certificate of innocence would expunge Smith’s record of the conviction. Evidentiary hearing dates were set Friday for May 16 through 19 in McHenry County courthouse before Judge James Cowlin.
But Briseno’s Sr.’s son, Raul Briseno Jr., said Monday he still believes Smith is guilty in the shooting death of his father.
“No amount of court dates or tears shed will bring my father back,” the younger Briseno said. “There is nothing that will bring him back, and I have made peace with that. My father is gone, and my kids will never meet their grandpa. He will never meet my wife. .. I’ve learned to live with the pain the best I can.”
In objecting to Smith’s attempts to obtain a certificate of innocence, the state argues that he “proceeds on (a) flawed premise.”
Smith has not “proved any fact that prove beyond a preponderance of the evidence that he is ‘actually innocent,’ ” Assistant State’s Attorney Randi Freese wrote in the state’s objection to Smith’s petition. “Rather (Smith) relies on the Seventh Circuit’s ruling and evidence presented over a course of his three trials to support his claim that he is ‘actually innocent.’ ”
The higher court’s ruling does not sustain Smith’s “legal burden of supporting his innocence,” Freese wrote. “A finding of not guilty is not the legal equivalent of innocent.”
Freese wrote that the evidence referenced in Smith’s petition – including a lack of physical evidence tying him to the murder and evidence that another group confessed to the murder – does not prove that he is innocent.
But Smith’s attorney Quinn Rallins, with the firm Loevy and Loevy of Chicago, wrote that in prosecuting Smith, the state “overlooked evidence pointing to the real perpetrators and employed tunnel vision in focusing” on Smith and his friends.
Also convicted in connection with Briseno’s murder was Jennifer McMullan, who lived in Round Lake at the time. McMullan, 41, ultimately took a deal with prosecutors to say she was the getaway driver that night and was released from prison in 2021. She served 22 of her 27-year sentence.
Justin Houghtaling of Burlington, Wisconsin, and David Collett of Spring Grove also were convicted in connection with Briseno’s death.
Smith’s attorneys say in their petition that prosecutors “ignored evidence” pointing to another group of people “unknown and unrelated” to Smith. They are referenced in documents as “the DeCicco Group” – Russell Levand, the alleged shooter; Adam Highland, an accomplice; and Susanne DeCicco, the would-be getaway driver.
The petition also notes the absence of any physical evidence or fingerprints tying Smith or the others to the scene. It further states there were conflicting and contradictory statements made by Houghtaling proving the fact that he “had no personal knowledge of the murder.”
Houghtaling was “fed” details of the crime by interrogators and he has since “recanted,” Smith’s attorney wrote. He also has said he was under the influence of hallucinogenics when he made the statements that ultimately led to Smith’s arrest.
“Since giving the statement, Houghtaling has recanted under oath many times explaining that he and Smith had nothing to do with the murder and that he was told that his plea agreement would be revoked unless he continued to inculpate Smith,” Rallins said in the petition.
Houghtaling pleaded guilty as part of a plea deal to murder and was sentenced to 20 years in prison in exchange for testifying against Smith and the others.
He later wrote a letter apologizing to McMullan. The letter said, “I’m sorry about what I did to you at your trial. I know I lied and I was bogus,” according to the petition.
At Smith’s third trial in 2012, Houghtaling “flatly denied that he and Smith were involved in the shooting,” according to the petition.
The filing also states that since the early days of the investigation members of the DeCicco group “have confessed to committing the crime and provided critical facts that only the perpetrators would know to family, friends and law enforcement.”
Additionally, DeCicco’s mother told police she had the .22-caliber revolver used to kill Briseno and had turned it over to police. The gun was analyzed, but authorities could not “make a perfect match of the gun to the bullets found recovered,” according to the petition.
Smith’s attorney wrote that the DeCicco group had motive to rob the restaurant because Levand allegedly had knowledge that Briseno kept “large amounts of cash inside the restaurant.”
Still, Raul Briseno Jr. who carries on his father’s legacy with a new business, Taco’s by Raul, says to Smith: “At the end of the day, Kenny, you served 20 years in prison, and I believe you and the group you were involved with are guilty for what you have done.”