May 15, 2024
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Burrito Express murder case timeline: Conviction tossed 3 times for Kenneth Smith; now he’s back in court

Smith is now back in McHenry County court trying to win a certificate of innocence

By Amanda Marrazzo
Northwest Herald newspaper cover Burrito Express Murder case

Northwest Herald newspaper cover Burrito Express Murder case

March 6, 2001, about 7:15 p.m.: Two masked men enter Burrito Express in McHenry. Owner Raul Briseño Sr. and employee Eduardo Pardo chase them into the parking lot, an altercation ensues, shots are fired and Briseño is killed. The immigrant and father was 34.

That night, Kenneth Smith, a 25-year-old Park City man, drives to a friend’s house located less than 100 yards from the restaurant. Smith later testifies that he sees a commotion outside the restaurant along the way and then spends the night drinking and watching movies at his friend’s house without leaving again.

March 7, 2001: In the morning, police show up at Smith’s friend’s house and question Smith.

May 2001: Police question Jennifer McMullan, 19, about Briseño’s killing and, after a long interrogation, she tells police that she drove Smith, Justin Houghtaling, 19, and David Collett, 18, to a location near the Burrito Express that night, later drove Smith and Houghtaling away from the scene and that Smith told her he shot someone.

Authorities arrest Collett, and Houghtaling is taken into custody in Omaha while headed by bus to California. Houghtaling would also give incriminating statements to authorities. Smith is arrested days later.

All four are charged in McHenry County court with first-degree murder and attempted armed robbery.

Houghtaling would later recant his statements, claiming prosecutors offered him what to say to convict Smith, and attorneys would claim Houghtaling had taken hallucinogenic drugs the day of the questioning.

Northwest Herald archive shows the article from when Raul Briseno was murdered at the Burrito Express

Northwest Herald archive shows the article from when Raul Briseno was murdered at the Burrito Express (Northwest Herald archive)

September 2001: Collett pleads guilty to aggravated armed robbery and is sentenced to five years in prison. He agrees to testify against the other defendants. He would be granted work release after about two years in prison, court records show.

November 2001: Houghtaling pleads guilty to first-degree murder and is sentenced to 20 years in prison and also agrees to testify against Smith and McMullan, though he later invokes the Fifth Amendment on the stand at Smith’s trial.

2002: A jury convicts McMullan of attempted armed robbery and murder based on the theory of accountability as the alleged getaway driver. She is sentenced to 27 years.

June 2003: Smith is convicted for the first time by a McHenry County jury of killing Briseño and is sentenced to 67 years in prison.

2004: An Illinois appeals court tosses out Smith’s conviction and orders him to be retried.

Raul Briseno Sr. makes one of his famous 6-foot burritos at Raul's Burrito Express in Wauconda in this 1996 photo, when Briseno was 31. Briseno was murdered in 2001, and Kenneth Smith, inset, was convicted three times in his murder. Smith's conviction has been overturned each time, and the U.S. Court of Appeals ruled Thursday that Smith is to be released immediately and not stand for a fourth trial.

Raul Briseno Sr. makes one of his famous 6-foot burritos at Raul's Burrito Express in Wauconda in this 1996 photo, when Briseno was 31. Briseno was murdered in 2001, and Kenneth Smith, inset, was convicted three times in his murder. Smith's conviction was eventually overturned again and he was ordered released. (Provided photos)

2005: A McHenry County woman, Susanne “Dallas” DeCicco, tearfully tells police that her boyfriend and her cousin were the ones who killed Briseno, and that they jumped in her car after the shooting when she went looking for them.

This alternative explanation of the murder would become key in efforts by Smith’s lawyers to exonerate him.

2008: Smith is tried for a second time. This time Houghtaling testifies against Smith but under cross examination recants his incriminating statements. Smith is convicted of murdering Briseño. DeCicco and her cousin were called to testify but both deny involvement.

2009: Houghtaling pleads guilty to perjury for stating during the second trial that Smith did not kill Briseño.

2010: The state appeals court reverses Smith’s conviction a second time.

2011: McHenry County Jail inmate Patrick Anderson comes forward to claim that another inmate – “Dallas” DeCicco’s boyfriend – confessed to him that he killed Briseño.

February 2012: Following a long deliberation that took place over a few days, a McHenry County jury convicts Smith for a third time of murdering Briseño.

May 2013: After an appeal by Smith, the Illinois Appellate Court upholds the verdict of first-degree murder against him.

2015: Attorneys for Smith file a request in federal court for a writ of habeas corpus, arguing he was denied a fair trial because his lawyers weren’t allowed to present all evidence pointing to the other group as the perpetrators.

March 2020: Smith’s conviction is overturned for a third time, this time by U.S. District Court Judge Andrea R. Wood, who calls the case against Smith “extremely thin” and his conviction a “miscarriage of justice.” Wood cites numerous errors that violated Smith’s constitutional rights – including the exclusion of evidence that pointed to another possible suspect.

She orders his release, but the Illinois Attorney General appeals that decision.

Still, Smith’s brother Robert Smith has new hopes for his release, calling the saga “such a long, strange trip.”

April 2020: McHenry County State’s Attorney Patrick Kenneally, who was not involved in trying the case, defends the convictions handed down by three juries and affirmed by a state appeals court and the Illinois Supreme Court, saying the federal court “cherry-pick[ed] and fram[ed] the facts in an unbalanced way.”

Briseño’s family also maintains that Smith is responsible for the killing.

October 2020: In a letter from prison to a Northwest Herald reporter, Smith claims that McHenry County prosecutors had offered him deals of 20 to 25 years in prison if he pleaded guilty. Smith said he would “rather die in prison” than plead guilty to a crime he says he didn’t commit.

November 2020: The U.S. Seventh Circuit Court of Appeals hears the case.

Dec. 16, 2020: Smith’s attorneys seek his release on bond amid a spike in COVID-19 cases inside the prison.

May 6, 2021: Smith walks out of downstate Lawrence Correctional Center, a day after a federal judge ordered him released from prison.

Kenneth Smith, 45, puts his arm around attorney David Jimenez-Ekman after walking out of Lawrence Correctional Center in Sumner on Thursday, May 6, 2021. Smith was greeted by members of the law firm Jenner and Block of Chicago, who helped secure his release after serving nearly 20 years for the 2001 murder of Raul Briseno.

Kenneth Smith, 45, puts his arm around attorney David Jimenez-Ekman after walking out of Lawrence Correctional Center in Sumner on Thursday, May 6, 2021. Smith was greeted by members of the law firm Jenner and Block of Chicago, who helped secure his release after serving nearly 20 years for the 2001 murder of Raul Briseno. (Corryn Brock for Shaw Local)

June 16, 2021: Jennifer McMullan, the convicted getaway driver, is released from prison after serving 20 years of her 27-year sentence. That comes after prosecutors agree to vacate her initial charges and allow her to plead guilty to a lesser charge of armed robbery, with her time in prison fulfilling her new sentence. “It’s been a long and nightmarish experience for you ...” the judge tells McMullan. “Hopefully, you can get on with the remaining part of your life.”

July 2022: Smith files a request for a certificate of innocence, aiming to clear his record and his name. The certificate could also make compensation available to him.

March 2023: Smith files a federal lawsuit against multiple agencies involved in his prosecution, including the McHenry Police Department and the McHenry County Sheriff’s office, claiming they violated his civil rights in prosecuting him for Briseño’s killing.

Kenneth Smith testifies Tuesday, Oct. 24, during his certificate of innocence hearing before McHenry County Judge James S. Cowlin at the McHenry County Courthouse. 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. In 2020, the U.S. District Court for the Northern District of Illinois overturned the conviction, and the decision was upheld in 2021 by U.S. Court of Appeals for the 7th Circuit.

Kenneth Smith testifies Tuesday, Oct. 24, during his certificate of innocence hearing before McHenry County Judge James S. Cowlin at the McHenry County Courthouse. 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. In 2020, the U.S. District Court for the Northern District of Illinois overturned the conviction, and the decision was upheld in 2021 by U.S. Court of Appeals for the 7th Circuit. (Gregory Shaver/Gregory Shaver )

Oct. 24, 2023: Smith takes the stand again, this time at a hearing over whether he deserves a certificate of innocence. He again testifies that he was not at the restaurant that night in 2001. A McHenry County prosecutor argues that although the appeals courts has determined Smith was not guilty, he is not an “innocent” man.

Raul Briseño Jr. of Wisconsin, and his sister, Alexandra Strohmaier of Algonquin, say they still believe Smith is guilty. Briseño Jr. said he is “disgusted” with the judicial system and Wood’s decision to overturn Smith’s conviction.