Federal judge orders Kenneth Smith released ‘as soon as practicable’

Ruling allows state ‘to pursue all avenues of appeal before compelling it to decide whether to move forward with retrying Smith’

A federal judge ordered Wednesday that Kenneth Smith, whose third conviction for the 2001 Burrito Express murder was overturned last year and upheld by a federal appellate court opinion last week, be released “as soon as practicable” but also gave the state 120 days to retry him.

The ruling from U.S. District Court for the Northern District of Illinois Judge Andrea R. Wood came less than a week after the U.S. Court of Appeals for the Seventh Circuit upheld her March 2020 decision exonerating Smith.

The panel’s ruling last week called for Smith’s “immediate” release and his attorneys filed emergency motions intended to expedite his freedom.

Wood’s decision Wednesday granted those motions in part, ordering Smith’s release from custody “as soon as practicable consistent with the Illinois Department of Corrections’s protocols for the COVID-19 pandemic” but no later than 4 p.m. May 10. Smith is to be released on personal recognizance, meaning he won’t be required to post any money as bond, and subject to supervision by the local U.S. Probation Office.

“By keeping the stay in place while granting Smith release under Rule 23, the Court intends to permit the State to pursue all avenues of appeal before compelling it to decide whether to move forward with retrying Smith [assuming that retrial is necessary or possible],” Wood wrote.

The state has 120 days to retry Smith under the order.

If the state retries Smith, it would be his fourth trial since the 2001 murder of Raul Briseno, a McHenry restaurant owner. Smith has served nearly 20 years of a 67-year prison sentence he received for the murder.

Smith has long maintained his innocence, although the McHenry County state’s attorney and the victim’s family continue to believe his guilt.

Since the murder, statements and court records have pointed to another group of individuals as being responsible for Briseno’s death. Charges were never filed against those individuals, including Russell “Rusty” Levand.

Levand, 37, who has been alleged as the shooter in court filings, currently is serving a five-year sentence on unrelated charges of involuntary manslaughter for the overdose death of a McHenry woman.

“Mr. Smith is an innocent man who has waited long enough for his freedom,” wrote Smith’s attorney, David Jimenez-Ekman, in his latest motion filed Tuesday evening. " … there is no conceivable reason for Mr. Smith to remain in custody any longer.”

The Illinois Attorney General’s Office had argued that Smith remain in prison during the 21-day mandate, a period designed to give the losing party time to consider its options.

Richard Kling, clinical professor at Chicago Kent College of Law who practiced criminal law for nearly 50 years, said Wednesday, ahead of Wood’s decision, that he did not understand why the state would make that request or what they are planning on doing. Smith’s conviction was reversed on insufficient evidence, therefore “to try him again at this point would be double jeopardy,” Kling said.

The state also has the option of filing for en banc, a re-hearing of last week’s opinion, within 14 days, according to Jimenez-Ekman’s motion.

Civil rights attorney Kathleen Zellner, who is not connected to the Smith case, also said the state could ask for an en banc review, which means more federal judges would hear the case. However, this is “unlikely because [Smith’s appeal] is a unanimous opinion.”

Smith’s appeal was upheld by the entire panel of three appellate judges.

Zellner, who secured the exoneration of Mario Casciaro in 2015 after his conviction for the disappearance and presumed murder of Brain Carrick in Johnsburg, said that if one judge had dissented, then the en banc hearing would be allowed.

This scenario occurred in the case of Brendan Dassey, who remains in prison in Wisconsin for the 2005 murder of Teresa Halbach even after winning an appeal.

The state stepped in, blocked his release and held an en banc rehearing because one of the three appellate judges had cast a dissenting vote.

“En banc reviews are incredibly rare,” Zellner said.

In 2019, the U.S. Court of Appeals Seventh Circuit heard 548 cases and only one was an en banc re-hearing, according to data provided by the Seventh Circuit.

“The efforts by the state to delay Mr. Smith’s release seem ill-conceived and will ultimately be self-defeating when Mr. Smith files his civil rights lawsuit which he is bound to do,” Zellner said.

Calls to the attorney general’s office were not returned Wednesday.