Kenneth Smith seeks certificate of innocence, says he was ‘wrongfully convicted’ in 2001 murder of McHenry restaurant owner

Kenneth Smith, who was released from prison last year after serving almost 20 years in prison for the murder of a 34-year-old McHenry restaurant owner, filed a petition for a certificate of innocence Tuesday.

Smith, 46, was convicted three times for shooting to death Raul Briseno Sr. on March 6, 2001, in what prosecutors have called a botched robbery. Each time the conviction was overturned on appeal.

Following the latest appeal, the U.S. District Court for the Northern District of Illinois found there was insufficient evidence to sustain Smith’s conviction and ordered his release.

Smith, who now lives out of state and works in pest control, is “trying to move on with his life,” said Russell Ainsworth, partner with Chicago-based civil law firm Loevy and Loevy, which filed the petition seeking the certificate of innocence on Smith’s behalf.

“The certificate of innocence is crucial in clearing Mr. Smith’s name,” Ainsworth said. “[This is] a judicial pronouncement that he is innocent of this murder as he has maintained all along. He is innocent and he is fighting to clear his name. It would allow Mr. Smith to expunge his arrest and conviction from his criminal history and allow Mr. Smith to live his life as a free man and not be held back by a wrongful conviction.”

McHenry County State’s Attorney Patrick Kenneally said his office stands by its case and thinks Smith is guilty of Briseno’s murder.

“Three juries found Mr. Smith guilty beyond a reasonable doubt,” Kenneally said Tuesday. “His conviction was affirmed by the appellate court and Illinois Supreme Court. A federal judge, selectively considering evidence, and preferring her own opinion to that of 36 ordinary citizens found the evidence insufficient to sustain the charges beyond a reasonable doubt. That is not the same as ruling Mr. Smith was innocent. In order to not further compound this tragedy and the truth of Raul Briseno’s death, we will be contesting the petition.”

One of Briseno’s children, Raul Briseno Jr., 33, of Chicago, said he and his family still think Smith killed their father.

“I know that they [had] the right people in jail,” Briseno Jr. said. “I am upset with the American justice system in general [and] the federal appeals court that we have even gotten to this point. Thirty-six jurors found this man guilty, and I can’t even believe we are at this point. Tell him I said, ‘Good luck with your innocence certificate. You are not going to get it.’”

Smith was sentenced to 67 years in prison following the third jury trial – despite, his attorneys note in the petition, him maintaining his innocence, a lack of any physical evidence like fingerprints or blood connecting him to the crime scene, and confessions allegedly made by another group of individuals.

The petition argues Smith “never confessed” and those who made statements leading to Smith’s convictions were “fed” crime scene details by police.

“Smith’s wrongful conviction hinged almost entirely on the uncorroborated statement of a co-defendant, Justin Houghtaling, who provided statements while under the influence of hallucinogenic drugs in exchange for a plea deal,” according to the petition.

Houghtaling, now 40, was convicted in connection to Briseno’s death along with Smith, David Collett, 39, and Jennifer McMullan, 40.

Among many details of his father’s murder that Briseno Jr. said prove Smith’s guilt is Houghtaling leaving on a bus to California after the murder, the same day Collett and Smith were arrested.

Houghtaling was captured by police in Omaha, Nebraska, and taken to a police station where he was questioned. Briseno Jr. considers his leaving Illinois as a sign of guilt.

“Innocent people don’t run,” he said.

Houghtaling was convicted of murder and sentenced to 20 years in prison, according to court documents.

Collett entered into a negotiated plea of guilt to one count of attempted aggravated robbery and sentenced to five years in prison. After two years, he went home on work release, court records show.

McMullan, convicted of attempted robbery and murder and accused by prosecutors of being the getaway driver, was originally sentenced to 27 years in prison.

Currently represented by the Illinois Innocence Project, McMullan has maintained and still maintains her innocence. However, last June she agreed to plead guilty to a lesser felony that would vacate her original conviction and secure her release from prison.

McHenry County Judge Robert Wilbrandt granted prosecutors’ petition to vacate McMullan’s original charges for which she was convicted. He then allowed her to plead guilty to a new charge of armed violence, for which she was sentenced to 22 1/2 years in prison. That term is considered complete after accounting for the time McMullan had already served.

At the time, McMullan and her family said she agreed to the deal, which still makes her a convicted felon, so she could be home with her family and help care for her ailing father.

McMullan’s sister Amanda Carlson said she wishes Smith “all my best in [pursuing] his certificate of innocence.”

“I feel any win for Ken is ultimately a win for Jennifer and helps them both with the injustice that has been dealt to both,” Carlson said.

Without the certificate of innocence, each time a police officer runs Smith’s license plate or he applies to volunteer or for a job or housing, the conviction would still appear, Ainsworth said.

If he is granted the certificate, he would be entitled to compensation from the state in an amount determined in a court of claims based on Smith’s years of incarceration. This amount could range between $200,000 and $230,000, Ainsworth said.

“Mr. Smith simply wants justice,” Ainsworth said. “He can’t get back those years he lost while incarcerated, but he can get a new shot at life through that certificate of innocence.”

The next court date for the state’s response to the petition is set for Oct. 6.