After being convicted by three juries and serving nearly 20 years in prison for the 2001 murder of a McHenry restaurant owner, Kenneth Smith walked out of Lawrence Correctional Center as a free man Thursday.
As the sun began to peek through gray skies outside the Sumner prison, the 45-year-old Smith hugged his attorney, and they talked about what was left in his commissary account, his new shoes and where to meet up with his family.
Then, one of the legal associates called Smith’s mom and said, “We’re here in the parking lot with Ken.”
His mom could be heard shouting joyfully.
“Hey, Mama, how are you?” Smith asked. His mom: “Freedom!”
Smith’s attorneys filed multiple emergency motions calling for his “immediate” release after the U.S. Court of Appeals for the 7th Circuit last week upheld the March 10, 2020, decision of the U.S. District Court for the Northern District of Illinois exonerating him.
On Thursday morning, the 7th Circuit sent Smith’s attorneys from the Chicago law firm Jenner & Block an order issuing his immediate release without conditions. This meant that he is free from prison and will not be required to report to parole or a probation officer despite a Wednesday opinion saying he would need to.
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“We are grateful that, at long last, the justice system recognizes Ken Smith’s innocence, ending his almost two-decade nightmare,” said Smith’s attorney, David Jimenez-Ekman. “The evidence of Ken’s innocence is overwhelming, and it is a tragedy it took so long for the justice system to acknowledge that. Ken looks forward to the hard and bittersweet task of rebuilding his life. But the nightmare continues for Jennifer McMullan, also innocent but languishing in prison, and the family of Raul Briseno, whose real killers remain unpunished.”
Smith was serving a 67-year prison sentence for the 2001 murder of Raul Briseno, 34, owner of Burrito Express.
Although Smith and his supporters maintained throughout the years that he was innocent of the fatal shooting, Briseno’s family, McHenry police and McHenry County prosecutors stand by their belief that he is guilty of the crime.
McHenry County State’s Attorney Patrick Kenneally criticized the federal courts’ decision to overturn Smith’s conviction.
“We are increasingly distressed at the recent trend of remote judges, years and decades later, elevating their own judgments of selectively considered evidence and witness credibility over those of ordinary citizens [who served on the juries that convicted Smith] to reach preferred case outcomes,” he said last week.
Jimenez-Ekman said the appeals courts did no “disrespect to jurors.”
“The courts ruled those jurors were repeatedly told only half the story, and the facts those jurors never heard doomed the state’s case,” he said. “I am very proud of my team’s work and of Jenner & Block’s pro bono commitment that allowed us to fight for Ken without charge for more than 15 years.”
Also convicted in connection with the 2001 murder was McMullan of Round Lake, who currently is serving 27 years in prison, for murder and attempted armed robbery. McMullan also is appealing her conviction and is being represented by the Illinois Innocence Project.
Stephanie Kamel, attorney with the Illinois Innocence Project, said she is “pleased” to hear of Smith’s release.
“The Illinois Innocence Project is pleased for Mr. Smith and glad his day of justice has finally arrived,” Kamel said. “We will continue to advocate on behalf of our client Jennifer McMullan’s innocence.”
Justin Houghtaling of Burlington, Wisconsin, and David Collett of Spring Grove also were convicted in connection with Briseno’s murder.
Over the years, statements have been made in and out of police departments and courtrooms implicating Russell “Rusty” Levand, 37, of McHenry as the shooter, according to court records. Records also show alleged statements and confessions implicating the late Susanne “Dallas” DeCicco, 32, and Adam Hiland, 35.
Charges have never been brought against either of these individuals in connection with the murder. However, appellate judges weighed heavily their decision to exonerate Smith on statements and alleged confessions made by Levand, DeCicco and Hiland.
Judges also noted evidence that juries never heard before and said Smith was not given a fair trial any of the three times that led to juries convicting him.
Kenneally said Thursday he stands by the conviction.
Moving forward, the state has options to pursue en banc, a rehearing of the case before a panel of appellate court judges, or to petition the U.S. Supreme Court, he said. But in both of these options, the case would need to be accepted for hearing and this would need to occur within 90 days of last week’s ruling.
As of Thursday, it was unclear what the Illinois Attorney General’s Office planned to do. Calls to the Illinois Attorney General’s office were not returned this week.
McHenry police also stand by their case against Smith.
“The McHenry Police Department conducted a thorough investigation into the murder of Raul Briseno,” McHenry Deputy Chief of Police Thomas M. Walsh said in an emailed statement. “As a result of that investigation, the state’s attorney initiated prosecution of the criminal charge filed against Kenneth Smith. Through the legal process, Mr. Smith was tried in McHenry County courts three times. At each of the three trials, a jury found Mr. Smith guilty. The McHenry Police Department respectfully disagrees with the court’s decision and the release of Mr. Smith. Our sympathies are with the Briseno family, who have to continually relive this tragedy.”