An appellate court panel has ordered a new hearing on whether a 35-year-old man convicted in the November 1996 murder of 6-year-old Nicholas "Nico" Contreras of Aurora had ineffective counsel during trial.
Mark A. Downs, formerly of Montgomery, was convicted in spring 2008 and sentenced to 70 years for the boy's murder on Aurora's east side that was supposed to be gang hit.
No hearing date has been set and prosecutors have a month to decide whether to appeal to the state's Supreme Court.
In its ruling, the appellate panel ruled that Kane County Judge Timothy Sheldon erred when he heard a post-trial argument from Downs, who was representing himself, that he had ineffective counsel.
Downs has dozens of allegations, the most pertinent that Public Defender David Kliment, who is now a judge, did not investigate and present an alibi defense for Downs and that Kliment didn't push for a bench trial instead of a trial in front of a jury.
At a September 2009 hearing, Downs presented his argument and Kliment and Kane County prosecutors also presented their counter arguments to Sheldon.
The appellate court ruled that Downs should have at least had an attorney there to argue on his behalf.
"The trial court erred when it converted the preliminary investigation of the factual bases for defendants claims into an adversarial hearing on the merits by allowing the defendant to read each claim, then having the trial counsel comment or argue its substance, followed by the state being allowed to comment or argue the substance of the claim," read part of the ruling.
No date has been set for Downs' case to return to Kane County court for a hearing in which Downs will be appointed an attorney to make his case. Then, if a judge ultimately rules Downs had ineffective counsel, a new trial could be ordered.
Prosecutors also have a month to appeal the ruling to the Illinois Supreme Court.
Lawrence Bauer, deputy director of the Illinois State's Attorneys Appellate Prosecutor Second District Office, said no decision has been made yet on whether to appeal.
Downs was charged in 2007 with Nico's murder.
Prosecutors argued that Downs believed he was shooting at a rival gang member when he fired an handgun into a bedroom window, killing Nico as he slept at his grandparents' house on Aurora's east side.
Another man, Elias R. Diaz, 43, of Aurora, was sentenced to 60 years in prison after his conviction on first-degree murder charges for ordering the gang hit.