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Kenneth Smith on Thursday was denied a certificate of innocence that he’d sought with the hopes of clearing his name in the 2001 Burrito Express murder.
Smith, 47, formerly of Park City, had been convicted by three juries for the murder of McHenry restaurant owner Raul Briseño, 34.
With each conviction, Smith was sentenced to 67 years in prison and served almost 20 before he was released.
Before announcing his decision, McHenry County Judge James Cowlin said he wanted “everyone to know I took many, many hours” in reviewing all evidence and arguments presented.
Cowlin said he based his decision on “evidence” and not “speculation,” of which there was plenty.
“This was a very difficult undertaking,” Cowlin said.
Smith had to prove his innocence “by a preponderance of the evidence,” which he did not, Cowlin wrote at the conclusion of a 16-page decision on file in the McHenry County courthouse.
Cowlin wrote Smith’s “proceedings did not include the presentation of any newly discovered evidence.”
Smith served about 20 years until 2021, when the U.S. 7th Circuit Court of Appeals upheld a decision of the U.S. District Court for the Northern District of Illinois exonerating him.
During hearings in October and closing arguments earlier this month, Smith’s attorney, Russell 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 she was released from prison in exchange. She also served about 20 years in prison.
Cowlin also wrote in his ruling there is no credibility or physical evidence supporting the argument that another group referred to as “the DeCicco group” is responsible for the murder.
And although there is no physical evidence tying Smith’s group to the scene either, McMullan, Houghtaling and Collett “made statements” placing Smith at the crime scene.
Cowlin said a sketch provided by Eduardo Pardo, an employee at the restaurant who was present during what has been called a botched robbery, “strongly resembles” Houghtaling.
The judge also referred to an alleged confession that Houghtaling gave to police placing himself and Smith at the scene.
Although he later recanted these statements, Cowlin said, “there is no competent evidence” to find Houghtaling gave a false confession.
Cowlin also noted what appeared to a be a “sincere” apology Houghtaling gave to the Briseño family during his sentencing hearing.
Ainsworth argued that McMullan, Houghtaling and Collett also are not guilty of Briseño’s murder. He also asserted that the DeCicco group knew details of the crime that were not disclosed publicly, produced the gun used in the shooting and that they had motive.
Cowlin said statements made by Susanne “Dallas” DeCicco, implicating herself and two others in the killing “lack credibility,” “were inconsistent” and more than likely were “fabricated.”
After Thursday’s hearing, Raul Briseño’s youngest sibling Paul Briseño said he still believes Smith killed his brother. Smith being denied his certificate of innocence, which would wipe the conviction off his record, is “good news for us,” Paul Briseño said.
He, too, has heard all the “rumors” pointing to the DeCicco group, but they do not change his mind.
Among other reasons, Paul Briseño said that during each trial and each conviction, Smith never acted like a man who was being wrongly accused.
“I never saw any emotions on his face,” he said. “He never showed any signs of remorse like, ‘Why am I still here?’”
Like Cowlin, Paul Briseño also noted Houghtaling’s apology pointed to his guilt.
Briseño said he wishes Raul’s children would have had their dad to raise them.
When Raul Briseño was killed, his daughter Alexandra was 5 years old and his son Raul Jr. was 11.
“It destroyed the family,” Paul Briseño said. “His kids have been struggling a lot. It’s sad. it’s sad to see that. I think the kids would have had a better life with him in their lives.”
Raul Briseño Jr. also believes Smith killed his father. In response to learning that Smith was denied the certificate, Briseño said: “He got what he deserves. His life will never be the same.”
McHenry County State’s Attorney Patrick Kenneally lauded the judge’s decision as “thoughtful and comprehensive.”
“What gets lost in this case ... is the victims who have been denied justice by the 20-year paper churn caused by pearl-clutching reviewing courts who think they know better than jurors,” Kenneally said.