Man serving 70 years prison for murder of Aurora boy again wants new trial

  • Mark A. Downs

    Mark A. Downs

Updated 2/21/2020 11:44 PM

A man serving a 70-year prison term for killing a 6-year-old boy as he slept in his grandparents' Aurora home in a 1996 shooting intended for a rival gang member wants a new trial.

Mark A. Downs, 43, formerly of Montgomery, argued Friday his attorney didn't follow up on an alibi defense and that jurors didn't know the full context of a key witness who made a deal with prosecutors to testify.


Downs was convicted in April 2009 of first-degree murder of Nico Contreras on Nov. 10, 1996. Prosecutors said Downs believed he was shooting at a rival gang member when he fired a handgun into a bedroom window on Aurora's east side, killing Nicholas as he slept. The case remained unsolved until 2006, when authorities uncovered new evidence.

Nicholas "Nico" Contreras was killed by a stray bullet in 1996 that was intended for a gang member.
Nicholas "Nico" Contreras was killed by a stray bullet in 1996 that was intended for a gang member.

An appellate court later overturned the conviction, stating a judge erred when a juror asked to define "reasonable doubt." The state's Supreme Court later reinstated the conviction.

On Friday, Downs' new attorney, Don Zuelke, argued jurors were banned from hearing all the details about 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.

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"The jury is back there deliberating (Davila's) credibility and they don't have a clear picture," Zuelke said.

Also Friday, Downs testified his attorney in the 2009 trial -- then Kane County Public Defender David Kliment, now a Kane County judge -- ignored Downs' alibi defense that he was working a 6 p.m.-to-6 a.m. shift as a temporary worker at a West Chicago candle factory the night Nico was killed.

Downs' brother, Christopher, also testified Friday the two were at work from Nov. 9 to Nov. 10, 1996.

Christopher Downs testified he tried to tell Kliment when the trial began that he wanted to testify in his brother's defense, but Kliment would have none of it. On cross examination, Christopher Downs admitted he never told police, prosecutors, the FBI or anyone else about his brother's supposed alibi before the trial began.

Mark Downs also acknowledged when he was questioned by police 10 days after Nico's murder that he told investigators he was out partying with another couple, and did not say he was working at the time.

Kane County Assistant State's Attorney Mark Stajdohar argued Kliment was unable to verify with the candle factory whether Downs was working Nov. 9 and 10, 1996, and that Kliment's decision not to focus on Downs' supposed alibi came down to trial strategy. Also, Stajdohar noted Judge Timothy Sheldon, who is now retired, allowed Kliment to cross-examine Davila about parts of his plea agreement after Sheldon initially ruled against that line of questioning.


"The defendant is entitled to receive a fair trial, not a perfect trial," Stajdohar said.

In April 2008, Downs' co-defendant, Elias R. Diaz, 40, of Aurora, was convicted of first-degree murder for ordering the supposed gang hit, and he is serving a 60-year sentence.

At his sentencing in 2010, Downs said "I'm absolutely 100 percent not guilty of this crime." But a judge issued a 70-year sentence that would be served consecutive to a 17-year term Downs was already serving for an attempted murder conviction in Kane County in 2004. The earliest he could be released is April 2054.

Kane County Judge D.J. Tegeler will issue his decision April 3.

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