Ex-coach who arranged player injury seeks retrial or chance to appeal in Fayette court
By Bob Stiles
Published: Saturday, Oct. 5, 2013, 12:01 a.m.
A former T-ball coach who was found guilty of arranging to injure an autistic player is asking Fayette County Court for a new trial or to allow him an appeal to state Superior Court.
Mark R. Downs Jr., 36, formerly of South Union, contends in a motion filed on Friday that his counsel was ineffective.
A hearing has been scheduled for Oct. 20 before Judge Ralph Warman.
Downs, who is being housed in SCI-Retreat, made national headlines in 2005 when he was accused of arranging to have one of his T-ball players injure the autistic player. The 8-year-old player testified his first toss bounced off the ground and hit the autistic boy in the groin, and Downs told him to “try hitting him harder in the face.”
At trial, Downs testified that the case was a misunderstanding and that the ball-thrower and his family were lying.
Downs was convicted in 2006 of corruption of minors and conspiracy to commit simple assault. He was sentenced to serve up to six years in prison.
He served the one-year minimum, then was ordered to serve three to six months in jail for violating a protection-from-abuse order involving his estranged wife in 2010, according to court records. He remains in prison on a parole detainer.
In the motion, Monroeville attorney Patrick J. Thomassey contends that Downs should get a new trial or be given an opportunity to appeal to Superior Court because his trial attorney, Thomas Shaffer, and his appellant counsel, Nicholas Timperio, were ineffective.
According to the motion, Downs lost his chance to appeal his conviction to Superior Court when Timperio missed a filing deadline by one day. Timperio, according to the brief, was awaiting a trial transcript as new counsel in the case and was denied an extension by Warman.
The motion challenges Shaffer's decision to call Darlene Reese as a witness during the trial. Reese's son threw the baseball that injured the other player, according to trial testimony.
When Reese did not testify that the ball's throwing was the result of a misunderstanding — as Shaffer wanted — the attorney attempted to call Eric Forsythe, president of the Robert W. Clark League, to impeach Reese's testimony, according to the motion.
Warman did not permit Clark's testimony for impeachment purposes.
“(Downs) contends that failure on the part of Shaffer to know what Mrs. Reese would testify to constitutes an unreasonable failure to prepare for trial and is thus, ineffectiveness, which acted to (Downs') prejudice,” Thomassey said in the motion. “Shaffer then compounded this error by attempting to impeach his own witness with testimony from Forsythe, which the court did not permit, leaving a negative impression on the jury and prejudicing them against his defense.”
Bob Stiles is a staff writer for Trib Total Media. He can be reached at 724-836-6622 or firstname.lastname@example.org.
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