Federal appellate court orders release of Kenneth Smith, whose conviction in 2001 Burrito Express murder has been overturned three times

Kenneth Smith, who has served nearly 20 years of a 67-year prison sentence for the 2001 murder of a McHenry restaurant owner, was granted “immediate” release from prison Thursday, the U.S. Court of Appeals for the Seventh District said in its ruling.

Smith, 45, who is housed at Lawrence Correctional Center in Sumner, had been convicted three times of armed robbery and first-degree murder of Raul Briseno, the 34-year-old owner of Burrito Express.

He won appeals on each of his convictions and following the first two appeals, was tried again, resulting in another conviction and the re-sentencing of 67 years in prison.

This time appellate judges ruled he is to be freed outright and not face a fourth trial.

His latest conviction was overturned last March, appealed by the state then argued before appellate judges in November.

“We reverse the district court’s holding that the evidence was constitutionally sufficient to sustain Smith’s conviction,” according to the ruling released Thursday. “Accordingly, we remand the case to the district court with instructions to grant the petition for a writ of habeas corpus unconditionally and order the immediate release of Kenneth Smith from state custody.”

[ Read the full opinion here. ]

Smith’s brother, Robert Smith, said though the news is good, he has been “on pins and needles” over the years with each appeal. He only hopes this time it is for real.

“Hopefully, I can gain my feelings back,” Robert Smith said. “I’ve just become numb to everything.”

Others convicted of Briseno’s murder were Jennifer McMullan of Round Lake, Justin Houghtaling of Burlington, Wisconsin, and David Collett of Spring Grove. McMullan was convicted of murder and attempted armed robbery and sentenced to 27 years in prison. She currently is appealing her conviction.

Houghtaling pleaded guilty in 2001 to first-degree murder and was sentenced to 20 years in prison. Collett pleaded guilty to aggravated armed robbery in September 2001 and was sentenced to five years in prison.

After hearing the news of Smith’s pending release, Raul Briseno Jr. said he is “very upset” and believes that Smith, Collett, Houghtaling and McMullan are in fact guilty of his father’s murder.

“I’m very upset with McHenry County, and I feel like with everything that has happened within these last years, they could have done a little bit more,” Briseno Jr. said. “Thirty-six jurors found these guys guilty.”

McHenry County State’s Attorney Patrick Kenneally criticized the opinion Thursday, saying, “It strains credulity that three life-appointed federal judges can find that ‘no rational jury could find proof of guilt beyond a reasonable doubt’ in this case where three McHenry County juries did just that.”

“The American legal system is premised on the belief that jurors represent the conscience of the community and will act diligently and thoughtfully in applying the law,” Kenneally said in the written statement. “We are increasingly distressed at the recent trend of remote judges, years and decades later, elevating their own judgments of selectively considered evidence and witness credibility over those of ordinary citizens to reach preferred case outcomes. We wish to express our deepest sympathy to the Briseno family who now have to continue to live with this open wound.”

Briseno Jr. said the news hurts his entire family, especially his mom and his sister.

In particular, he points to Houghtaling who was arrested in Omaha while headed to California and questioned by police. He then gave a statement which, in part, led to Smith’s convictions.

“If you are not a guilty person you don’t run away from anything,” Briseno Jr. said of Houghtaling.

Briseno Jr. also said Collett apologized to his mother in court and asked if Collett was not guilty, why would he have apologized.

Houghtaling also apologized in court, according to the opinion.

However, the appellate judges wrote that while it “is conceivable” those apologies came from a place of guilt it also is “just as conceivable … that they apologized in the hope of securing a lower sentence.” The opinion also stated that Houghtaling only gave such statements implicating Smith because “the police told him that he already had been incriminated, promised to take it easy on him if he cooperated and he was high on hallucinogens.

Through the years, statements have been made in and out of courtrooms and police departments pointing to another group of individuals as the alleged murderers.

Referred to as “the DeCicco Group,” the group includes Russell “Rusty” Levand of McHenry as the alleged shooter; his girlfriend, the now deceased Susanne “Dallas” DeCicco as the alleged getaway driver; and Adam Hiland as an accomplice.

Before she died, DeCicco had made statements that Levand was the shooter, according to Smith’s appeal.

Levand, 37, was never charged in the crime. He currently is serving five years in prison for involuntary manslaughter in an unrelated fatal drug overdose.

The federal ruling based its opinion, in part, on the exclusion of “critical testimony” and evidence pointing to the DeCicco group’s culpability. The ruling noted the multiple “confessions” made by members of the group and their supposed knowledge of a drug dealings at the restaurant prompting the attempted robbery.

The ruling also noted “insufficiency of the evidence;” discrepancies over what type of gun was used; questions over the authentication of Houghtaling’s Omaha interview, which he later recanted; the lack of Smith’s blood or DNA at the scene; the lack of any physical identification of the shooter or his accomplices; and questions of whether a green jacket presented at trial was the same one worn by Houghtaling the night of the murder.

Briseno Jr. has defended his father’s reputation as a hard-working family man and self-made successful businessman, and scoffs at the notion his father ever dealt drugs.

He said he has been preparing himself for this day to come.

“I had a feeling this was going to go this route,” he said.