August 30, 2014

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Convicted child killer Nicole Diar avoids retrial, will serve life

ELYRIA — Convicted killer Nicole Diar will spend the rest of her life in prison for the 2003 murder of her 4­year-old son under an agreement with prosecutors that was approved Thursday by a three-judge panel.

Nancy Diar, convicted in 2005 for the 2003 murder of her son, Jacob, leaves a courtroom in the Lorain County Justice Center on Thursday. Diar will spend life in prison without the possibility of parole after a deal was approved that allowed her to avoid a retrial. (CT photo by Bruce Bishop.)

Nancy Diar, convicted in 2005 for the 2003 murder of her son, Jacob, leaves a courtroom in the Lorain County Justice Center on Thursday. Diar will spend life in prison without the possibility of parole after a deal was approved that allowed her to avoid a retrial. (CT photo by Bruce Bishop.)

Diar, 34, originally had been sentenced to death after being convicted in 2005 of aggravated murder for killing Jacob Diar, but in 2008 the Ohio Supreme Court upheld her conviction while overturning her death sentence. The high court said jurors weren’t properly instructed that any single juror could have saved Diar’s life by refusing to con­sider the death penalty.

Diar’s parents, Marilyn and Ed Diar, who have said publicly that they believe their daughter had nothing to do with Jacob’s death, sat in the back of the courtroom during Thursday’s brief hearing and declined to comment as they left the Lorain County Justice Cen­ter.

Kreig Brusnahan, one of Nicole Diar’s attorneys, said after the hearing that accepting the life without parole sentence will keep Diar from returning to death row at the Ohio Reformatory for Women, where she was kept in virtual solitary con­finement. Instead, he said, she will remain in the prison’s general population.

Both Brusnahan and county Prosecutor Dennis Will said that the life sen­tence minimized the risks to both sides.

“It’s a difficult day for Ms. Diar and her family, but, given the choices we had, life without parole is cer­tainly a better choice than the possibility of facing the death penalty,” Brusnahan said.

Will said he agreed to the deal to avoid the possibility of a jury imposing a lesser life prison term on Diar that would have eventually allowed her a shot at parole. “We were attempting to ensure an outcome that held her to the highest level of accountability,” he said.

Bev Suckow, who served on the original jury that convicted Diar and recom­mended the death sentence, said the original sentence was appropriate.

“There was sufficient evi­dence presented to us that we all came to the conclu­sion that she deserved the death penalty,” Suckow said. “I think that as the original jury, we were right the first time.”

During the trial, assistant county prosecutors Tony Cillo and Mike Nolan argued that Diar had killed Jacob in August 2003 and set ablaze her West 10th Street home in Lorain to cover up the crime.

They contended that Diar had long feared that she wouldn’t have a child because of injuries she sus­tained when her nightgown caught on fire when she was 4 years old. That incident left her with a substantial settlement from the night­gown’s manufacturer and physical and mental scars that defense experts con­tended should keep her off death row.

But when Diar had Jacob, her son became a burden, putting a crimp in her lifestyle and keeping her from going out, prosecutors argued during the trial. Instead of caring for the boy, prosecutors argued, Diar would farm out his care to relatives and teenage babysitters, whom she told to dose Jacob with an elixir of codeine and acetaminophen to get him to sleep.

The drugs led to stomach problems for Jacob, which further imposed on his mother’s ability to go out, prosecutors said.

“The fact that she medicated her kid just so she could go out and party really bothered us,” Suckow said.

But Will said prosecutors would have been limited in what evidence they could present to the new jury that would have needed to be chosen to decide whether to reimpose the death penalty on Diar. Evidence of Diar’s partying lifestyle and drugging Jacob to get the boy to sleep would have been difficult to share with the new jurors, he said.

Diar maintained her innocence during her 2005 trial and sentencing hearing, telling the original judge on the case, the late Kosma Glavas, that “I didn’t kill my son. I couldn’t show remorse for something I didn’t do.”

During Thursday’s hearing before the three-judge panel, which consisted of Visiting Judge Judith Cross and county Common Pleas judges Raymond Ewers and Christopher Rothgery, she politely declined to make a statement.

Brusnahan declined to comment after the hearing when asked if Diar still maintains her innocence.

Diar also had told Lorain police detectives that she had tried to save her son from the fire, which her trial attorneys argued was set by someone else.

But prosecutors and police argued that during the eight months they investigated the case before Diar was indicted, they discovered evidence that showed she hadn’t tried to save the boy, including evidence that she didn’t have soot on her clothing despite insisting she had tried to go back into her burning house to save Jacob.

An autopsy performed on Jacob’s charred remains never determined the exact cause of death, but it did show that he didn’t have any evidence of soot in his lungs and he had a low carbon monoxide level in his bloodstream, both indications he was dead before the fire was set.

The lead detective on the Diar case, Dave Garcia, who now works as an investigator for Will’s office, said it was a difficult case for he and other officers.

“It was a diabolical, heinous act of violence against an innocent child,” he said.

Garcia said he’s glad the case is now over — Diar gave up most of her appeal rights as part of the sentencing agreement and prosecutors dropped an unrelated theft case in which Diar was accused of stealing from a furniture rental company.

“I certainly believe that justice is intact,” Garcia said.

Contact Brad Dicken at 329-7147 or bdicken@chroniclet.com.