Kane County prosecutors are weighing their options after a state appellate court vacated the conviction and ordered a new trial for a former Montgomery man serving a 70-year prison term for the 1996 slaying of a 6-year-old Aurora boy.
Attorneys for Mark A. Downs convinced the Second District Appellate Court that the trial judge erred in instructing the jury in response to its question on the definition of reasonable doubt.
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Kane County State's Attorney Joe McMahon's office said it will respond in court after reviewing its options.
In April 2009, Downs was convicted of the first-degree murder of Nicholas "Nico" Contreras, who was killed while at his grandmother's house on Aurora's east side. The case had remained unsolved until 2006, when authorities uncovered new evidence.
The state's primary witness, Ruben Davila -- a gang member who had an agreement under which he was not charged in Nico's killing and pleaded guilty to a reduced charge in an unrelated murder -- testified that he and Downs went to the home of a member of Davila's previous gang. Davila said Downs shot through the outside wall and windows into the room where they believed the gang member was sleeping.
Instead, it was Nico who was fatally wounded.
Another man, Elias R. Diaz, 42, of Aurora was sentenced to 60 years in prison after his conviction on first-degree murder charges for ordering the gang hit.
During deliberations, the jury sent several questions to the judge, among them, "What is your definition of reasonable doubt?" -- whether it was 80, 70 or 60 percent.
Downs' public defender told the judge that Illinois is one of the few states that can't give a definition.
The prosecutor, however, suggested, "What if we only answer, 'It's yours to define?'"
The judge then responded with a written reply, "We cannot give you a definition it is your duty to define."
Downs argued before the appellate court that by telling the jury it had a duty to define reasonable doubt, the trial judge ran afoul of the state's prohibition. As a result, Downs contended, there is a reasonable likelihood the jury used a lesser standard to convict him, which is grounds to reverse any conviction.
In granting Downs the reversal, the appellate court acknowledged that Downs had not raised the reasonable doubt issue during the trial or during an initial appeal.
However, the court may review a forfeited claim if there was a clear or obvious error that either tipped the balance in a close case or was so serious that it affected the integrity of the judicial process.
"By asking if reasonable doubt was 80%, 70%, or 60%, the jury clearly showed that it was already contemplating a standard less than the reasonable-doubt standard required under the law," the appellate court wrote in the opinion released Friday. "By instructing the jury that it was 'your duty to define [the term 'reasonable doubt'],' the trial court gave the jury clear license to continue down its mistaken pathway of equating reasonable doubt to some percentage of confidence."
Before he received his sentence in 2009, Downs said in court he was wrongly convicted and blamed the murder on a witness who testified against him.
"I'm absolutely 100 percent not guilty of this crime," he said.