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Attorneys again pointed to another group of alleged killers in McHenry’s 2001 Burrito Express murder in seeking a certificate of innocence for the man who says he didn’t do it.
Kenneth Smith, now 47, was convicted by three juries and sentenced each time to 67 years in prison for the murder of Raul Briseño Sr., for which Smith served almost 20 years.
Three others were convicted in the murder, two of whom entered into guilty pleas that Smith’s attorneys said were fabricated.
In 2021, Smith was released from prison after U.S. 7th Circuit Court of Appeals upheld a 2020 decision of the U.S. District Court for the Northern District of Illinois exonerating him.
Now his attorneys are arguing that he should be granted the certificate declaring he is in fact innocent and clearing his name.
The hearings began in October and concluded Friday.
Smith’s attorney, Russell Ainsworth, referred to another group of three people who were not charged in the murder but had made “remorseful confessions” that they had killed Briseño in a botched robbery.
This other group, referred to as the “the DeCicco group” in court documents, had nothing to gain by making such statements, Ainsworth said.
Among several points presented Friday, Ainsworth said there is no physical evidence connecting Smith or the others convicted in the murder to the crime scene.
Justin Houghtaling of Burlington, Wisconsin, and David Collett of Spring Grove, pleaded guilty in connection with the murder.
Jennifer McMullan, the alleged getaway driver, was convicted of first-degree murder and armed robbery by a jury in 2002 and sentenced to 27 years in prison.
McMullan maintains her innocence even though she allegedly confessed after being coerced by police – later saying it was a false confession. She entered into a plea deal in 2021 saying she was present that night, and was released from prison in exchange. She also served about 20 years in prison.
Ainsworth argued McMullan, Houghtaling and Collett also are not guilty of Briseño’s murder. He also said the other group knew details of the crime that were not disclosed publicly, and that they had motive.
Ainsworth claimed the “DeCicco group” produced the gun allegedly used in the shooting. In doing so, he argued that even though the bullet was “deformed” and authorities could not make a “perfect match,” all other characteristics of the gun, evidence at the scene and Briseño’s wounds matched the .22-caliber revolver believed to have been used.
The gun belonging to a family member of the other group has since gone missing, he said.
“The facts are the facts,” Ainsworth said, arguing the evidence against Smith “is unreliable and doesn’t confirm the facts of the case.”
As to the guilty pleas Houghtaling and Collet entered in court, Ainsworth said they were scared of being convicted at trial for murder. He also said Houghtaling later recanted his statements linking the group to the crime.
But prosecutors stand by their case and maintain that Smith murdered Briseño.
Assistant State’s Attorney William Bruce said though the higher court may have found Smith was “not guilty,” he is “not innocent.”
Bruce said that even though the other group told people they committed the crime, those supposed confessions were vague, and there were “inconsistencies” and recantations of those alleged confessions.
Bruce noted that in court during the plea deal, Houghtaling apologized to the Briseño family.
The prosecutor also said that just as with the other group, there were inconsistencies and contradicting details provided by Smith and others about the night Briseño was killed.
He challenged details of the moments surrounding the actual shooting, such as whether the gunman was walking up to Briseño while shooting him or, as the other group said, whether the assailant was running away at the time and shooting behind him.
During the hearings in October, several witnesses testified to Smith’s claimed innocence. Bruce said those witnesses statements were “incredible” and “not to believed.”
Smith also has filed civil lawsuits against multiple police officers involved in his case, as well as against the McHenry Police Department and the McHenry County Sheriff’s Office, his attorneys said.
Judge James Cowlin is due to render his ruling Dec. 20.