Kenneth Smith, convicted 3 times of Burrito Express murder in McHenry, back in court for innocence certificate

A man convicted by three McHenry County juries of killing a McHenry restaurant owner and sentenced to 67 years in prison each time – but was exonerated in 2021 – is arguing for his certificate of innocence.

Kenneth Smith, now 47, was back in a McHenry County courtroom Tuesday, where he repeatedly denied having any involvement in the fatal shooting of Raul Briseño Sr., owner of Burrito Express in McHenry, on March 6, 2001.

[ Burrito Express murder timeline: 'Long, strange trip' over 22 years since the killing of Raul Raul Briseño  ]

Smith served nearly 20 years in prison before being ordered by a federal judge to be released in May 2021.

Prosecutors at each trial alleged Smith killed Raul Briseño in a botched robbery.

Although no longer fighting for his freedom – but a certificate that clears the record and helps to clear the name of those wrongfully convicted – Smith testified Tuesday that he was offered a plea deal before going to trial, which he turned down because “I wasn’t going to admit to something I didn’t do.”

“Kenneth Smith is an innocent man,” his attorney Quinn Rallins said.

Smith was convicted along with three others who Rallins said were coerced and gave false statements to police while the “real perpetrators” provided “detailed facts” that police never released to the public and details that only they would know.

Rallins also said the “real murder weapon was provided [to police] by the perpetrators’ own family member.”

Smith cooperated with police and was “willingly” answering questions, Rallins said.

There was no physical evidence, DNA, fingerprints, shoe prints or blood evidence linking Smith to the crime scene.

The police made their “mistaken theory” within 48 hours of the murder and had “tunnel vision” focusing on Smith as the shooter, he said.

Smith “wants the certificate of innocence to get his life back on track,” Rallins said.

However, Assistant State’s Attorney William Bruce argued that although the U.S. Court of Appeals for the 7th Circuit upheld the March 10, 2020, decision of the U.S. District Court for the Northern District of Illinois exonerating him, Smith may be considered not guilty, but he is not an “innocent” man.

During the hearing held before Judge James Cowlin, which is scheduled to continue throughout the week, testimony was heard detailing the night’s events.

Smith testified he and three others, also convicted in the killing – Jennifer McMullan, Justin Houghtaling and David Collett – drove from his home in Park City, to Twin Lakes, Wisconsin, to pick up a laptop, then headed to McHenry to visit his friend James Weisenberger.

Weisenberger, who lived within 100 yards of the Burrito Express, did not answer the door when the group initially showed up. Smith said they drove to a smoke shop nearby then headed back to Weisenberger’s house.

On their way they saw flashing lights, police, emergency vehicles and commotion at the restaurant and continued back to Weisenberger’s house.

Smith said he never left the house that night and that he slept over while the others left.

Weisenberger, now 45, testified Tuesday that he and Collett left the house twice that night; once to walk to a nearby store to buy beer, and again saw all the commotion. After not being able to buy beer at the convenient store, they left the house again in McMullan’s car to drive to a grocery store, Weisenberger testified.

Smith’s attorney Russell Ainsworth asked Weisenberger if he saw any blood in McMullan’s vehicle and he said he did not.

When the group arrived, he did not see any blood or cuts on anyone in the group and none was acting oddly.

The police knocked on Weisenberger’s door the next morning and began questioning Smith.

The defense attorneys pointed to another group of individuals long-rumored to have been the assailants.

Smith’s attorney’s played a tape from a 2005 police interview with Susanne “Dallas” DeCicco, in which she tearfully says that her boyfriend and her cousin were the ones who killed Raul Briseño, donning masks and going into the restaurant with her father’s gun to commit robbery.

DeCicco said she had gone looking for them that night and saw four men running out of the restaurant. A man yelled for her to call for help. She was scared and drove off and she heard gunshots.She then saw her cousin and boyfriend running, her cousin’s face covered in blood. She said they jumped in her car and she saw her boyfriend throw the gun into the backseat, where her cousin was sitting. She saw him cleaning the gun, she said.

Months later she said her car was stolen and found burnt up in Wisconsin. She said her boyfriend threatened her to keep her from going to police.

Prior to the 2005 interview, DeCicco had told this account to family members, including her mother, who reported the statements to police. DeCicco’s mother also turned over the gun but police were unable to make an exact match.

Defense attorneys also said that DeCicco’s boyfriend was more likely the killer because he allegedly knew that Raul Briseño was an alleged drug dealer and believed he would have large amounts of cash at the restaurant.