Judge dismisses Nico shooter’s appeal, closes 1996 murder case again
By Matt Hanley mhanley@stmedianetwork.com October 22, 2012 4:50PM
The appellate court has agreed to hear the appeal of Mark Downs, sentenced to 70 years in prison for the 1996 murder of 6-year-old Nico Contreras of Aurora.
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Updated: October 23, 2012 11:07AM
The man convicted of shooting 6-year-old Nico Contreras has lost an appeal of his murder conviction.
On Friday, Judge Tim Sheldon dismissed a post-trial appeal by Mark Downs, the 35-year-old Montgomery man who was sentenced to 70 years in prison for the 1996 murder of the Aurora boy. Nico was sleeping at his grandmother’s house on Aurora’s near East Side when he was shot by gang members targeting his uncle. The crime went unsolved for 11 years, until a fellow gang member identified Downs as the shooter.
After Downs was convicted, he filed several standard post-trial motions. In those motions, he argued that David Kliment, then the Kane County public defender, was ineffective as his attorney. Downs said Kliment, who is now a judge, did not properly investigate Downs’ alibi claims and he pursued a jury trial when Downs asked for a bench trial. At one point in the post-trial motions, Downs had no attorney while facing arguments from both prosecutors and a defense attorney.
In June, the appellate court gave Downs a second chance to argue his ineffective counsel claims. If Downs had won that argument, he could have been granted a new trial. It is not uncommon for defendants to argue ineffective counsel, but it is very difficult to prove.
A new attorney was appointed for Downs. The attorney who pursued a single claim of ineffective counsel. Sheldon dismissed the claim Friday after a short hearing.
Kane County Assistant State’s Attorney Mark Stajdohar was glad the appeal was dismissed, but expected Downs to continue his appeal.
“Every time it’s over, I’m glad it’s over,” Stajdohar said. “Hopefully, the healing will continue.”
The appeal had been painful for Nico’s family. Although Downs’ chances of winning were remote, the idea haunted Nico’s mother, Sandy Contreras.
“I’m grateful that it’s over with again. I’m grateful I can put this behind me,” she said. “He did it. Unfortunately, we’ve to keep proving the fact. No matter what happened, it won’t change the fact that he’s guilty.”
Sandy Contreras knows that Downs will likely appeal his sentence or conviction again. But she vowed to be at every hearing.
“I don’t know if he (Downs) knows how much he puts me through,” she said. “I’m sure if he does, he doesn’t care. When bad people do terrible crimes, I don’t know if they understand what it really does to the families.”
According to prosecutors, Elias Diaz drove Ruben Davila and Downs to Nico’s grandparents’ house. Diaz wanted Davila to shoot Nico’s uncle, whom Diaz blamed for a shooting a week earlier. Davila testified that he decided he did not want to do the shooting, and handed the gun to Downs, who fired into the home.
The murder shocked a community that was being plagued by gang violence. More than a decade later, Diaz, 38, was found guilty in the murder and has been sentenced to 60 years.
Davila was sentenced to eight years in prison after pleading guilty to aggravated discharge of a weapon in a separate case.
