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Kenneth Smith, Convicted 3 Times Of 2001 Burrito Express Murder, Released On Appellate Ruling; Victim's Family Maintains Smith Is Guilty

CHICAGO (CBS) -- Kenneth Smith was out of prison Thursday night after 20 years – always maintaining he never committed the high-profile murder of a local restaurant owner.

The Seventh Circuit Court of Appeals agreed that he did not commit the murder - granting Smith an immediate release. He walked out of the downstate Lawrence Correctional Center a free man.

But the victim's family says Smith absolutely did it. CBS 2's Charlie De Mar spoke with both sides Thursday night.

The Burrito Express murder gained a lot of attention back in 2001. Smith was convicted three times of the armed robbery and murder of the owner of the McHenry restaurant, Raul Briseno, in on March 6 of that year.

"All of this could have been prevented if they would have followed up thoroughly and done this correctly 20 years ago," Smith said.

Smith previously won appeals three times in his case and has been found guilty by a jury at each retrial.

Three others were also convicted in the Burrito Express murder. Their convictions have not been overturned.

But last week, the Seventh Circuit Court of Appeals cited issues with the evidence as reason to give Smith a second chance at life.

Moments after his release, Smith - who was surrounded by his attorneys - called his mom. There was no question what Smith was having for dinner.

"Mac and Cheese," he said. "It can be out of the box as long as its mac and cheese."

But Briseno's family was not celebrating Thursday night.

"I'm sure he did it," said the victim's brother, Alonso Briseno.

When asked if he felt like the system had failed his family, Alonso Briseno said he did.

But he added of Smith: "If he's out and does good things, it's OK. He can have another chance."

Smith added: "I feel sorry for the victim's family. The state's attorney office should bring justice. You should bring closure to this victim's family and get the right individuals."

Smith told De Mar over the phone that he plans on using his experience of being wrongfully convicted to advocate for others.

The McHenry County State's Attorney's office did not agree with the federal Court of Appeals ruling either – arguing that three juries' conclusions from evidence at trial were dismissed.

"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. 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."

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