State attempts to delay Kenneth Smith’s ‘immediate’ release

‘Mr. Smith is irreparably prejudiced by each additional day he is kept in custody,’ Kenneth Smith’s attorney argues in motion

In spite of the U.S. Court of Appeals for the Seventh Circuit ordering Thursday the “immediate” release of Kenneth Smith from prison “without conditions,” he remained in custody at Lawrence Correctional Center in Sumner Monday evening.

Smith, 45, has served nearly 20 years of a 67-year prison term for the 2001 murder of Raul Briseno, owner of Burrito Express. His conviction has been overturned three times.

After the federal appeals court issued its ruling Thursday, David Jimenez-Ekman, Smith’s attorney from Jenner and Block, filed an emergency motion ordering his “immediate release.”

“The state no longer has any likelihood of success on the merits and has no interest in keeping Mr. Smith, an innocent party who the state has been ordered not to retry, incarcerated,” according to the motion. “… Mr. Smith is irreparably prejudiced by each additional day he is kept in custody, and the public interest is also best served by his immediate release.”

However, Assistant Illinois Attorney General Eldad Z. Malamuth filed a motion Friday against Smith’s release.

The motions were then argued that afternoon in a phone conference held between the lawyers and federal district court Judge Andrea Wood.

According to Malamuth’s motion, Wood does not have jurisdiction to release Smith and that he be held for the 21-day mandate. The 21-day mandate allows the losing party time to seek a re-hearing before the appellate judges.

In a supplemental motion filed Saturday, Jimenez-Ekman cited several examples of case law that indicated that Wood does have jurisdiction to release Smith.

As of Monday evening, Wood had not given her decision on Smith’s release.