Nicole Diar OH DR Resentenced to LWOP in 2003 Murder

[ScoopD (aka: Pam)]

Summary of Crime: On 8/27/03, Diar murdered her 4-year-old son, Jacob, in their Lorain apartment. Diar suffocated her son before pouring gasoline throughout her home and setting it on fire to destroy any evidence of foul play. Jacob's badly-burned body was found on his bed, the body of his new puppy laying nearby.
http://www.ag.state.oh.us/le/prosecuting/capital/detail.asp?id=497

[Michael]

Nicole Diar of Lorain has appealed her 2005 conviction and death sentence for the aggravated murder of her four-year-old son, Jacob Diar. The child’s charred body was found inside Diar’s home by firefighters after putting out a fire that investigators found had been deliberately set using gasoline as an accelerant.  A coroner’s examination found that Jacob had died of “homicidal violence of an undetermined origin” before the fire began.

Diar’s attorneys have asserted 15 assignments of legal and procedural error by the trial court that they say are grounds for the Supreme Court to overturn her conviction or reduce her death sentence to a term of life imprisonment. These include claims that:

The trial judge’s instructions to the jury were defective because 1)  he failed to advise jurors that a single member’s dissent would prevent a death penalty recommendation; 2) the instructions did not identify the single “aggravating circumstance” in the case (the age of the victim) or specify what “mitigating factors” jurors must balance against the aggravating circumstance in deciding whether to impose a death sentence.
The judge erred in allowing the state to present irrelevant and prejudicial “other acts” testimony to the jury portraying Diar as an irresponsible “absentee” mother and reporting her social activity on the day of her son’s funeral. Defense counsel also assert that the court erred further by allowing the same prejudicial evidence to be reintroduced during the penalty phase despite its irrelevance to the aggravating or mitigating factors in the case, and by failing to give the jury any instruction limiting their reliance on Diar’s “other acts” as probative evidence that she killed her son or was deserving of the death penalty.
They assert that the judge erred in immediately affirming the jury’s recommendation of a death sentence on the same day the jury announced its verdict, despite a defense motion seeking a presentence investigation and report on Diar, who had no prior criminal record.  They argue that in doing so the judge did not conduct a required independent balancing of the specific aggravating and mitigating factors in the case, and did not prepare a sentencing decision setting forth his reasoning until after he had affirmed the death penalty.
Diar’s attorneys also assert that her trial was tainted by extensive prosecutorial misconduct, including the repeated use of leading questions that asserted the state’s theory of the case rather than eliciting factual testimony from witnesses. Defense counsel also allege that the prosecutor made statements that urged jurors to rely on facts not in evidence, and misstated the law regarding what aggravating and mitigating factors the jury should consider in making a death penalty recommendation.
The state responds that the trial court’s jury instructions and sentencing procedures complied with state guidelines and case law applicable to Ohio capital cases. Prosecutors contend that the “other acts” evidence cited by Diar was properly held admissible by the trial court because it established the defendant’s motive for killing her son, which they say was to escape her obligations as a parent and free her to live the “single” lifestyle that they say she had indulged in at the expense of  her parental duties prior to Jacob’s death.

With regard to the “leading” questions and other alleged prosecutorial misconduct referenced in Diar’s appeal, the state points out that most of the cited statements were not objected to at trial, and thus can be grounds for reversal of the trial court’s decision or sentence only if they constitute “plain error” so serious that, but for that conduct, the outcome of the trial would have been different. The prosecutor disputes the claim that the cited statements and questions were prejudicial to Diar; and argues that even if some prejudice did result, it was insufficient to qualify as plain error and thus cannot be the basis for reversal of Diar’s conviction or sentence.

http://www.sconet.state.oh.us/Communications_Office/oral_arguments/08/0826/0826.asp

[Jeff1857]

COLUMBUS, Ohio (AP) - Citing a judge's error, the Ohio Supreme Court on Wednesday threw out the death sentence of a woman who killed her 4-year-old son and set a fire to hide evidence of the crime.

It was the second time the court has thrown out a death sentence for a woman condemned to die in Ohio. The court also rejected the death sentence for a Trumbull County woman in 2006, though that woman again received the death penalty in 2007 after a re-sentencing.

The court said in its unanimous decision Wednesday that the judge in the trial of Nicole Diar of Lorain made a mistake by not telling the jury that a single juror's negative vote could prevent a death sentence.

Visiting Judge Kosma Glavas, a retired Lorain County judge, sentenced Diar to death in 2005. Glavas died in 2007.

Messages were left for the Lorain County prosecutor's office and for Diar's attorney. Diar, 33, was convicted of killing her son, Jacob, whose body was found after a fire in their house in Lorain on Aug. 27, 2003.

Prosecutors said Jacob was suffocated or drowned before Diar burned his body to cover up evidence. The boy's puppy also died in the fire. Jacob's body was so badly burned that the coroner was unable to determine the cause of death. The state Supreme Court ruled in 1996 that judges should tell jurors about the impact a single juror can have.

In Diar's case, the court said that violations of its 1996 decision haven't always resulted in death penalty reversals. But in this instance, prosecutors themselves recommended that the mistake was enough to reverse the death sentence and require a new sentencing.

"We accept the state's concession of error," Justice Maureen O'Connor said in the opinion.

The court upheld Diar's aggravated murder conviction. Diar was one of two women on Ohio's death row. Donna Roberts of Trumbull County was returned to death row in 2007 after the state Supreme Court reversed her first death sentence.

http://www.wxix.com/Global/story.asp?S=9498166

[Jeff1857]

Nicole Diar's Lawyers Ask State's High Court to Reconsider Conviction


Attorneys for Nicole Diar want the Ohio Supreme Court to reconsider its decision to uphold her aggravated murder conviction for the 2003 death of her 4-year-old son.

Earlier this month, the high court threw out Diar's death sentence because of a technical error made by the judge during the sentencing phase of her trial, but upheld her conviction.

In court documents filed this week, Linda Prucha, Diar's attorney from the Ohio Public Defender’s office, said the Supreme Court should have overturned Diar's conviction because of prosecutorial misconduct.

While the Supreme Court found that some comments and questions from prosecutors in the case were improper, they held that they weren't bad enough to justify overturning the case.

But Prucha said the justices only looked at the individual instances and not the cumulative effect.

"It prejudiced the jury because it painted her in a very negative light because of the prosecutor's words and not the evidence," she said Friday.

Assistant Lorain County Prosecutor Tony Cillo, who helped convict Diar, said Prucha was rehashing the same arguments that the Supreme Court has already rejected, but he still plans to respond.

Prucha conceded that the Supreme Court justices rarely change a decision once it's been made, but she said her request was worth a try.

Meanwhile, prosecutors and defense attorneys are preparing to hold a new sentencing hearing for the 33-year-old Diar. County Prosecutor Dennis Will has said he still believes Diar's crime warrants the death penalty.

It's unlikely that the old jury, which recommended Diar be executed for her crimes, will be brought back to offer another recommendation. Instead, a new jury will likely be selected to handle that decision.

The Supreme Court ruled that the late county Common Pleas Judge Kosma Glavas erred when he failed to tell jurors that any one of them could stop Diar from being sentenced to death.

Police say Diar killed her son, Jacob, and set her Lorain home ablaze to cover up the crime. She has maintained her innocence since her conviction in 2005.

(source: Chronicle-Telegram)

[Morticiaa1979]

that poor little boy.  I can only imagine the horror he must have been going through.  When is she going to be on DR and put to death? Has a date been set yet?

[Jeff1857]

COLUMBUS — The Ohio Supreme Court denied the Lorain County Prosecutor's Office appeal to reconsider its ruling that threw out the death penalty of Nicole Diar and ordered a resentencing.

Diar was sentenced to death by lethal injection in November 2005 for the aggravated murder of her 4-year-old son Jacob. In December, the Supreme Court upheld her aggravated murder conviction but vacated the death penalty because visiting Lorain County Common Pleas Court Judge, the late Kosma Glavas, did not give the jury complete instructions before deliberations.

"I think the Supreme Court was correct," Attorney Jack Bradley, who represented Diar in the trial, said in December when the court made its ruling. "The jury should have been instructed that one person had the power to give something less than the death sentence."

Lorain County Prosecutor Dennis Will said when the ruling was made that he still believes that Diar deserves the death penalty.

"There will be another sentencing phase and we will seek the death penalty again," Will said then. "We'll put forth the same evidence."

Jacob's charred body was found by firefighters inside Diar's West 10th Street, Lorain, home following a fire on Aug. 27, 2003. Investigators found evidence that Diar used gasoline as an accelerant to deliberately set the fire. A coroner's examination found Jacob died of "homicidal violence of an undetermined origin" before the fire started.

Diar told police that she fled the house after waking up to find it full of smoke and flames. She tried to re-enter the burning house, but was driven back by heavy smoke; however, a medical examination found that Diar's lungs showed no sign of smoke inhalation and her hair and clothing contained no soot or other fire residue.

http://morningjournal.com/articles/2009/02/07/news/mj582200.txt

[Michael]

Again just technical reasons which avoid justice... I don´t think that one of the jurors wanted to save her life.

Michael

[Anne]

http://chronicle.northcoastnow.com/2010/01/26/prosecutors-defense-argue-over-jury-picking-for-diar-resentencing/

Prosecutors, defense argue over jury picking for Diar resentencing

Filed by Cindy Leise January 26th, 2010 in Top Stories.

ELYRIA — Prosecutors filed court documents Monday in preparation for the resentencing of Nicole Diar, whose death sentence in the killing of her 4-year-old son was overturned by the Ohio Supreme Court in December 2008.

Visiting Judge Judith Cross will preside over the new sentencing hearing that is expected to involve a new jury.

The documents filed Monday by prosecutors opposed the request from the defense that Cross permit the defense and prosecution to conduct individual questioning of prospective jury members.

Instead, the documents filed by Assistant Prosecutor Tony Cillo requested the court permit individual sequestered questioning only on the issues of publicity, the death penalty, mental illness and insanity, other sensitive areas and other prejudicial matters.

The court ordered a new sentencing hearing for Diar, 34, who had been on death row since a jury recommended the death sentence to now-deceased county Common Pleas Judge Kosma Glavas, who sentenced her to death.

In its ruling, the Supreme Court said that Glavas erred when he failed to issue what’s known as the “solitary juror” instruction to jurors.

Such an instruction, which Diar’s trial attorney, Jack Bradley, had asked for, would have effectively told jurors that any one of them could have stopped the death penalty from being imposed and forced their fellow jurors to consider a life sentence instead.

The Supreme Court upheld Diar’s 2005 conviction on aggravated murder and other charges in the 2003 killing of her son, Jacob. Diar also was convicted of setting her Lorain home on fire to cover up the crime.

Diar, who was burned when she was a child when her nightgown caught fire, repeatedly denied that she had anything to do the her son’s death.

“I didn’t kill my son. I couldn’t show remorse for something I didn’t do,” she told Glavas during the sentencing hearing. “I can handle sitting in prison for something I did, but I didn’t do this.”

Lorain County Prosecutor Dennis Will has said he will push for the death penalty again based on “the circumstances of the crime, the method of death and the age of the victim.”



Anne

[heidi salazar]

Special hearing in Nicole Diar case set for next week

ELYRIA — A three-judge panel will meet next week for a special hearing in the case of Nicole Diar, whose death sentence for the 2003 murder of her son was thrown out by the Ohio Supreme Court nearly two years ago.

One of Diar’s attorneys, Kreig Brusnahan, said Tues­day that Diar is considering an agreement that doesn’t involve her returning to death row. He declined to provide specifics.

“Nothing has been finalized and I don’t expect things to be finalized before next Thursday,” he said.

Diar was convicted in 2005 of setting her Lorain home on fire to cover up the death of her son, 4-year-old Jacob Diar. Before her sentencing hearing before the now-deceased Lorain County Common Pleas Judge Kosma Glavas, Diar insisted that she was innocent and had nothing to do with Jacob’s death. Diar had been burned when she was a 4-year-old when her nightgown caught on fire.

The Ohio Supreme Court upheld the jury’s finding that Diar was guilty, but ordered a new sentencing because Glavas failed to tell jurors contemplating whether to recommend the death penalty that any one of them could have stopped the implementation of the death penalty, thus forcing the rest of the jury to consider a life sentence.

Diar’s trial lawyer, Jack Bradley, had asked Glavas to give jurors the “solitary juror” instruction, but prosecutors objected and Glavas refused to grant Bradley’s request.

Visiting Judge Judith Cross will serve as one of the judges, as will county Common Pleas Judge Raymond Ewers and Christopher Rothgery. They were selected randomly by Presiding Judge Mark Betleski on Tuesday.

Betleski said three-judge panels are used only in death penalty cases when a defendant waives their right to a jury trial.

The panel will hear the case and decide whether the defendant is guilty or not and what sentence to impose if they do find the person guilty. Betleski said a three-judge panel is also necessary when a defendant pleads guilty in a death penalty case.

Prosecutors and defense attorneys had been planning to pick a new jury that would have considered whether Diar should again face execution for killing Jacob. That was supposed to take place in July and was expected to last several weeks.

Brusnahan said Diar continues to maintain her innocence but has to consider whether she wants to return to the state’s female death row at the Ohio Reformatory for Women, where she was effectively held in isolation. Since her death sentence was thrown out, Diar has been held in the prison’s general population, where she has far more freedom.

“Being one of only two women on death row would tend to get you lonely for some company and socialization,” Brusnahan said.

County Prosecutor Dennis Will did not return a call seeking comment on a possible deal with Diar.

http://chronicle.northcoastnow.com/2010/05/26/special-hearing-in-nicole-diar-case-set-for-next-week/

[Angelove]

Reading that just made me really  . My son's name is Jacob and he just turned 5 years old. I can't even think what or why women that harm their children are thinking! I protect my son the best way that I can and just to think that the little boy was the same age as my son when his "mother" did this to him. It makes me what to hurt some of these women but I know that is not legal.... Anyways, I can never ever understand why a "mother" that had a child grow in her and be born from herself thinks that they can do what they want hurt to a helpless child!

I am sorry Jacob that your "mother" did what she did to you. I hope that you are in the Lords hands and that you know what real love is! 

[Anne]

This story is terrible and so shocking This bitch (sorry for this word) deserves to die    Honor and respect for Baby Jacob   






Anne

[Michael]

I think it´s time to blame the judge and prosecuter - they made a mistake. The attorneys made just what they should do.

Michael

[Jeff1857]

ELYRIA — Convicted killer Nicole Diar has agreed to serve life in prison without parole for the 2003 murder of her son, according to court documents filed today.


Nicole Diar during a break in her 2005 trial. Her sentence was overturned by the state Supreme Court in December 2008. (CT file photo.)
As part of the deal, prosecutors will no longer push for Diar, 34, to return to death row during a hearing before a three-judge panel next week.

“We’ve conferred with her and she is in agreement with those terms and we fully expect the hearing to go forward,” said Kreig Brusnahan, one of Diar’s attorneys.

County Prosecutor Dennis Will said he couldn’t comment extensively on any deal with Diar until after next week’s hearing, but he confirmed that the “preliminary discussions” between prosecutors and defense attorneys centered on a life sentence.

Diar’s death sentence from was thrown out in 2008 by the Ohio Supreme Court because the judge during her 2005 trial failed to tell jurors considering whether to recommend the death penalty that any single juror could prevent the death sentence and instead force his fellow jurors to consider a life prison term.

Diar has denied having any involvement in the death of her 4-year-old son, Jacob Diar, whose charred body was pulled from the Lorain home they shared after a fire.

Exactly how Jacob died has remained a mystery, but prosecutors argued during the trial that Diar torched her house to cover up the crime.

Diar had a history with fire — when she was 4 years old her nightgown caught on fire, leaving her with scars and a large settlement.

Under the terms of the agreement that Diar will have to officially accept next week, both prosecutors and defense attorneys will present evidence in the case to the three-judge panel, which consists of Visiting Judge Judith Cross and Lorain County Common Pleas Court judges Raymond Ewers and Christopher Rothgery.

A defendant in a capital murder case can request a three-judge panel to hear her case instead of a jury.

Diar remains in the Ohio Reformatory for Women, where she is kept in the prison’s general population. While she was on death row, she had been held in virtual isolation.

http://chronicle.northcoastnow.com/2010/05/26/nicole-diar-agrees-to-serve-life-in-prison/

[Destinee]

LWOP is too good for this woman. I hope there is some prison justice served behind those walls for this POS.

[Cema77]

This is disgusting. She should be on DR. Poor baby Jacob.

I hear that they don't like baby killers in prison.