Awaiting appeal in Burrito Express case, Kenneth Smith tries to get out of prison, citing COVID-19 ‘spike’

Lawyers cited “a rapid spike” in COVID-19 cases in Lawrenceville Correctional Center – where the man accused of killing a McHenry restaurant owner in 2001 awaits news of the appeal that could set him free – in asking that the man be released.

Lawyers for Kenneth Smith, 44, filed their motion Dec. 16 seeking his “immediate release on bond” from prison pending the ruling of the U.S. Court of Appeals for the Seventh Circuit.

Smith has so far served about 20 years of 67-year sentence for the murder of Raul Briseno, owner of the Burrito Express. Smith denies any involvement in the murder as the lawyers for the McHenry County State’s Attorney’s Office who prosecuted the case stand behind their case. If the higher court upholds Smith’s win, prosecutors could retry him for what would a fourth time.

In the prison where he is housed, 210 positive COVID-19 cases have been reported among inmates. Thirty-two positive COVID-19 cases have been reported among guards and other staff, according to the motion.

Smith is at a higher risk for COVID-19 complications because he has asthma and other respiratory ailments, and reports show that prisons and jails are the single biggest source of COVID-19 infections in Illinois, Smith’s lawyer David Jimenez-Ekman of Chicago-based Jenner and Block wrote in his motion.

Smith “suffers irreparable harm each day that he is imprisoned in violation of the United States Constitution,” Jimenez-Ekman wrote. He also wrote that if released on bond, Smith would not be a threat to the public nor a flight risk.

Should he be released, he would be required to wear an electronic monitoring device and follow other conditions, such as reporting to a probation officer, drug testing, refraining from committing crimes or associating with people who commit crimes, possession of weapons and excessive alcohol use.

Smith’s recent appeal – his third win since his first conviction in 2003 – vacating his conviction based on “evidentiary errors” that lawyers said “violated [Smith’s] constitutional rights to present a complete defense,” was won in March.

Smith’s attorneys initially filed a cross motion seeking his immediate release on bond in March while the state’s appeal was pending. The state, which had filed an appeal objecting to Smith’s appellate win, also objected to that request and the appellate court sided with the state, denying the request.

In November, oral arguments on the state’s appeal were heard via Zoom before the U.S. Court of Appeals for the Seventh Circuit. It could be months before their final decision is announced. Smith needs two of the three judges to agree in his favor.

The reasoning to blocking Smith’s release in March, was in part, that there were “no reported cases of COVID-19” in the prison, Smith’s attorneys wrote.

However, nine months later, this no longer is the case.

“The numbers have been rising rapidly over the past weeks, consistent with the drastic nationwide spike,” his attorneys wrote. “In light of this dangerous change in circumstances, Mr. Smith’s actual innocence, and the comments by the Seventh Circuit during oral argument. … Mr. Smith respectfully submits that this Court should grant his renewed motion for release on bond pending appeal.”

As of Dec. 16, the Illinois Department of Corrections has reported 5,890 inmates with confirmed cases of COVID-19, 1,283 of whom currently testing positive for COVID-19. In addition, 3,002 cases among personnel have been confirmed, including 423 currently infected staff members. Visits to IDOC inmates remain suspended until further notice, the lawyers wrote.

During oral arguments in November, Judge Diane Wood, one of three judges who listened to details of the case against Smith and his arguments for release, said, “It is hard to imagine a case with thinner evidence. … I just don’t see the jury getting the full story about the strength of the motive evidence.”

The federal judges also called the state’s case “weak” and said Smith’s convictions “fell below constitutional minimums.” Viewing the errors cumulatively the Seventh Court panel concluded that “but for the errors, Smith probably would have been acquitted,” Jimenez-Ekman wrote.

But as it was, Smith was convicted of first-degree murder and armed robbery for the shooting death of Briseno on March 6, 2001, in what has been called a botched robbery.

However, in the past 20 years, rumors, purported confessions to friends, family members and police, and witness testimony have pointed to another man as the shooter and three different accomplices.

In the appellate ruling in March, judges wrote that some “highly compelling” evidence pointing to this other group was not presented to jurors resulting in a “miscarriage of justice.”

Those convicted along with Smith include Jennifer McMullan, who also is appealing her conviction. The Illinois Innocence Project has filed petition in McHenry County to retest DNA from the crime scene.

In the 301-page petition, lawyers claim McMullan, 39, who was sentenced to 27 years in prison, was “intimidated” and “coerced” into giving a false confession after 12 hours of questioning by police.

McHenry County State’s Attorney Patrick Kenneally did not respond to a request for comment.