CHICAGO (WBBM NEWSRADIO) -- A federal judge has ordered that a man convicted of the 2001 murder of a McHenry County restaurant owner be released from prison following his exoneration.
Kenneth Smith has been convicted of the murder of Raul Briseno three times.
He’s served nearly 20 years of a 67-year prison sentence for the what has come to be known as the "Burrito Express murder."
The latest conviction was overturned last year and upheld by a federal appellate court opinion last week.
He could be free next week, after U.S. District Court for the Northern District of Illinois Judge Andrea R. Wood ordered that Kenneth Smith be released “as soon as practicable," but also gave the state 120 days to retry him.
Wood’s decision Wednesday granted those motions in part, ordering Smith’s release from custody “as soon as practicable consistent with the Illinois Department of Corrections’s protocols for the COVID-19 pandemic” but no later than 4 p.m. May 10. Smith is to be released on personal recognizance, meaning he won’t be required to post any money as bond, and subject to supervision by the local U.S. Probation Office, according to the Northwest Herald.
“By keeping the stay in place while granting Smith release under Rule 23, the Court intends to permit the State to pursue all avenues of appeal before compelling it to decide whether to move forward with retrying Smith [assuming that retrial is necessary or possible],” Wood wrote.
The state is keeping its options open.
That comes as a surprise to Kent College of Law Professor Richard Kling.
He told the Northwest Herald Smith’s conviction was reversed on insufficient evidence; therefore, “to try him again at this point would be double jeopardy."
Smith has long maintained his innocence and evidence has been presented pointing to others.
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