Murderer wants new trial for 1996 Aurora slaying
A man convicted of the 1996 murder of 6-year-old Nicholas “Nico” Contreras of Aurora has appealed his case, saying his defense attorney failed to provide effective representation and that prosecutors should have been barred from speaking when he unsuccessfully argued this to a judge several years ago.
Mark A. Downs, 35, formerly of Montgomery, is serving a 70-year prison sentence for the Nov. 10, 1996, murder on the city’s east side.
Downs was charged in 2007 and convicted in spring 2008. Prosecutors argued that Downs believed he was shooting at a rival gang member when he fired an handgun into a bedroom window, killing Contreras as he slept at his grandparents’ house.
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.
Bruce Kirkham, an attorney with the Office of the State Appellate Defender, argued Downs’ case before an appellate court panel in Elgin on Tuesday.
Kirkham said Downs filed a handwritten motion after his conviction, saying this attorney, then-Kane County Public Defender David Kliment, failed to provide effective representation because he did not fully investigate and present an alibi defense on behalf of Downs because the case was so old.
On Oct. 28, 2009, Downs was transported to Kane County from a downstate prison and acted as his own attorney as he argued his motion before Judge Timothy Sheldon. Kliment, who is now a judge, presented his response and Kane County prosecutors also presented their facts from the case.
Kirkham contended the state’s involvement denied Downs a fair hearing and Downs should have been represented by an attorney.
“You have a defendant sitting there with no counsel at all against two different advocates,” Kirkham said.
Joan Kripke, an attorney at the Illinois Office of the State’s Attorney Appellate Prosecutor, disagreed. She said Kliment “did the best he could” with looking into Downs’ alibi, but Downs’ brother and sister had “completely different statements” as to where Downs was during the killing.
“When was the state ever been excluded from post trial motions?” Kripke said. “I cannot see prejudice against the defendant because of the state’s participation.”
The appellate panel took the matter under advisement and, as customary, did not specify a time frame in which to release its decision.
If the appellate panel agrees with Kirkham and Downs, it could order a new hearing to investigate Downs’ claims about ineffective counsel or a new trial entirely.