Nicole Diar

Case identification

Nicole Diar was convicted of aggravated murder of her 4-year-old son, Jacob Diar, and aggravated arson and other felonies.

Timeline

• August 27, 2003 — A fire seriously damaged the Lorain, Ohio home of Nicole Diar; Jacob Diar’s body was found in the bedroom, and later investigation determined that gasoline was used to start the fire and that Jacob had been killed before the fire began.
• August 27, 2003 — Jacob Diar’s funeral was held.
• September 3, 2003 — Detective David Garcia and Sergeant Albert Rivera conducted a videotaped interview of Diar.
• April 2004 — Diar was indicted on aggravated-murder and other charges.
• May 20, 2003 — A pharmacist, Sahar Sarkis, filled a prescription for acetaminophen with codeine for Taylor Diar.
• July 1, 2003 — Diar and Jacob moved into a rental home at 910 W. 10th Street in Lorain.
• August 30, 2003 — Jacob Diar’s funeral was held.
• October 2, 2003 — Chad Diar and Edward Diar gave police three keys that opened the front and back door locks.
• October 17, 2005 — Diar was found guilty of aggravated murder, arson, and eight other felonies for killing her son Jacob, and for setting fire to her apartment and charring the boy’s body to destroy evidence.
• November 3, 2005 — Diar was sentenced to death by lethal injection for the killing.
• November 8, 2005 — Diar was sentenced to death.
• December 10, 2008 — The Ohio Supreme Court upheld Diar’s aggravated murder conviction but reversed the death sentence and remanded the cause for a new mitigation hearing.
• December 11, 2008 — The Ohio Supreme Court ruled that Diar would be removed from death row because of a court error; Diar would be re-sentenced at a later date in Lorain County.
• June 4, 2010 — Nicole Diar was removed from death row and would spend the rest of her life in prison for the 2003 murder under an agreement with prosecutors approved by a three-judge panel; prosecutors dropped an unrelated theft case in which Diar was accused of stealing from a furniture rental company.

Background

Nicole Diar was a burn victim. At age four, her pajamas caught fire and she suffered burns with permanent scarring. She underwent 61 operations over the next 14 years and received a structured settlement providing approximately $3,000 per month and other periodic lump-sum payments.

Diar’s family described her as a loving mother and presented evidence of her relationship with Jacob. Marilyn Diar testified that Diar had been unsure she could ever get pregnant due to taking steroids during burn treatments and that Diar was thrilled when she learned she was pregnant. Marilyn testified that after learning about the fire, Diar appeared to be in shock and was upset. Edward Diar testified that after Diar’s police interview on September 3, she told him that her house keys were in her purse.

The prosecution presented evidence tying Diar’s lifestyle to the crimes and contending that she killed Jacob and set ablaze her home to cover up the crime. The defense argued that no drug was found in Jacob’s body and that no gasoline was found in the home; the defense also presented evidence that Diar was burned badly at age four and therefore was protective and loving towards her son.

The offence

On the morning of August 27, 2003, a fire seriously damaged the Lorain, Ohio home of Nicole Diar. Jacob Diar, age 4, died from homicide prior to the fire beginning; his body was found in the bedroom.

Forensic and investigative evidence showed that gasoline was used to start the fire. Fire investigators concluded that the fire was started with gasoline and that burn patterns indicated an accelerant spread from the living room to the dining room and into the bedroom.

Multiple witnesses testified about the circumstances of the child’s death and the fire scene:

• Jacob’s body was found severely burned on the bed in the first-floor bedroom.
• Jacob’s puppy was found dead under the bed.
• Fire officials testified about gasoline smell and burn patterns consistent with an accelerant spread.

In testimony about Diar’s actions, the prosecution contended she medicated Jacob with codeine, strangled or otherwise killed him, and then set the fire to cover up the crime. The defense denied killing Jacob and argued Diar lacked the capacity or circumstances to start the blaze, pointing to Diar’s own severe burns as a child and to the evidence that no gasoline container was recovered.

Investigation

The Ohio Supreme Court described the key investigative determinations:

• Subsequent investigation determined gasoline was used to start the fire and Jacob had been killed before the fire began.
• Fire investigator Lee Bethune concluded the fire was started by “the direct act of a human hand and flame device with an accelerant,” and identified gasoline as the accelerant based on samples testing positive for gasoline.
• Bethune concluded the bedroom was the targeted area with a trail being poured from the living room to the dining room and into the bedroom.
• Bethune testified that a quart of gasoline might have been sufficient to start and spread the fire, and that he was unable to find a gasoline container or the remains of such a container in the house or surrounding area.
• Fire investigator Genevieve Bures conducted an investigation and concluded the “fire was set; it was not accidental.”
• Electrical expert Ralph Dolence examined wiring and other systems and determined there was no electrical failure or malfunction that might have caused or contributed to the fire.

The coroner’s findings were:

• Dr. Paul Matus determined Jacob’s manner of dress was “very peculiar and somewhat alarming,” noting the warm weather and that Jacob was dressed in long pants, a T-shirt, and a hooded sweatshirt with the hood pulled down over his face.
• Dr. Matus determined Jacob’s cause of death was “homicidal violence * * * of an undetermined origin.”
• Dr. Matus found Jacob did not die as a result of the fire, because his mouth and nasal passages were clear of soot, foam, or debris, and his larynx, trachea, and lungs were clear of soot and debris.
• Dr. Matus could not determine whether Jacob had died from a head injury due to “near total destruction * * * of the skull itself.”

The State Fire Marshal Forensic Lab examiner Christa Rajendran determined that Jacob’s velvet hood and underwear and the mattress pad tested positive for the presence of gasoline.

Diarsi’s statements to investigators included:

• In an ambulance interview during the fire, Diar said she woke up to black smoke everywhere, tried to find her son, but was overcome by smoke and left the house; she asked Garcia whether her son had been burned beyond recognition.
• In a taped interview on August 27, Diar stated she was home on the night before the fire, that she changed her door locks earlier in the day because she lost her keys, and that she suspected John Walker may have taken her keys.
• Diar said Jacob went to sleep on the chaise lounge in the living room at about 11:00 p.m. and she went to sleep on the living room couch at about 1:30 a.m.; she stated that at 4:30 a.m. Jacob woke up and she gave him juice; Diar stated that she woke up between 8:50 and 9:00 a.m. and saw black smoke everywhere, called out for Jacob without an answer, went into the dining room looking for Jacob, left because she could not breathe, and then went back into the house a second time to look for Jacob but was unsuccessful; she said she did not know what caused the fire.
• In the videotaped interview on September 3, Diar discussed the events leading up to the fire, said her house keys were missing about a week before the fire, stated that after learning about a break-in she changed her door locks, stated that her windows were locked except for the attic window in the front of the house and the window holding the air conditioner, and described Jacob sleeping on the chaise lounge and Diar sleeping on the couch.
• As investigators confronted Diar with scientific and medical evidence, Diar said: “[N]o way” and began sobbing; she also said: “I did not harm my son. He was my life.”

Investigators recovered locks and keys and analyzed entry possibilities:

• Police recovered new front doorknob and back door locks that were on the doors at the time of the fire.
• On October 2, 2003, Chad Diar and Edward Diar gave police three keys, opening the front and back door locks.
• Investigators checked the hardware store where the locks were purchased and found that the locks were sold with four keys; police suspected Chad removed one key to suggest a stranger had accessed the house the night of the fire.
• Police examined front and rear attic windows as possible entry points but found they could not be reached without a ladder.

Arrest

Diar was indicted in connection with the fire and the killing.

Trial

Diar was charged with aggravated murder and other felonies and pleaded not guilty to all charges. The jury convicted Diar of aggravated murder of Jacob and of eight additional counts including aggravated arson and tampering with evidence, along with complicity to corrupt another with drugs, felonious assault of Jacob, murder, and felonious assault of fireman Griffith.

Charges and specifications

The Ohio Supreme Court described:

• Count 6 charged Diar with aggravated murder of Jacob with prior calculation and design.
• Count 7 charged Diar with aggravated murder of Jacob, a child under the age of 13.
• Both counts contained a death-penalty specification for murder of a child under 13 years of age, R.C. 2929.04(A)(9).
• Counts 1 and 10 charged Diar with complicity to corrupt another with drugs.
• Count 2 charged felonious assault of Jacob.
• Count 3 charged murder.
• Counts 4 and 5 charged Diar with aggravated arson.
• Count 8 charged tampering with evidence.
• Count 9 charged her with the felonious assault of fireman Griffith.

Prosecution’s theory and evidence presented

The prosecution presented evidence and argued that Diar killed Jacob and set the fire using gasoline to cover up the crime. The prosecution’s evidence included testimony and exhibits regarding gasoline smell and burn patterns, as well as testimony about Diar’s parenting and conduct before and after the fire.

The prosecution contended Diar drugged Jacob with codeine and also argued that Diar had a motive connected to her lifestyle and that Jacob’s care interfered with her style of life. Witnesses described Diar’s use of babysitters and instructions given to babysitters to give Jacob codeine. Evidence included multiple babysitters’ testimony about codeine administration:

• Luis Agosto babysat for Jacob and Taylor after Diar and Rebecca asked him to give Jacob some medicine because of his hyperactivity; the medicine bottle contained Tylenol 3 with codeine prescribed for Taylor; Agosto gave Jacob a teaspoon; Jacob became sick and vomited.
• Destiny Faulkner babysat for Jacob and Diar asked her to give Taylor’s codeine to Jacob to make him sleepy on multiple occasions.
• Pharmacist Sahar Sarkis testified that on May 20, 2003, he filled a prescription for acetaminophen with codeine for Taylor Diar and that possible side effects included upset stomach, vomiting, nausea, and drowsiness.

Additional evidence included the coroner and forensic conclusions and evidence that Diar’s appearance and clothing were not covered in soot:

• Fireman John May testified that Diar’s skin and clothing were not covered in soot and he did not smell gasoline on her person.
• Fireman Steve Griffith testified about his search and that the fire trapped him in the upstairs hallway.
• Paramedic evaluation during the fire found Diar’s lungs were clear and everything appeared normal.

Defense arguments and evidence presented

The defense denied killing Jacob and argued that:

• No drug was found in Jacob’s body, and the defense emphasized the absence of gasoline in the home.
• Diar’s own severe burns as a child supported that she was protective and loving towards her son.
• The defense highlighted testimony from witnesses that Diar was caring and loving, and testimony that Diar’s demeanor was consistent with grief.

The defense also argued about the investigation and evidence:

• Dr. Matus was unable to determine whether Jacob died from a head injury due to destruction of the skull.
• The defense argued for an alternative explanation for the fire and contested whether Diar could have started it, including the absence of gas canister recovery and disputes about whether Diar smelled like smoke.
• Family witnesses testified that Diar’s medication and alcohol were responsible for her seemingly odd behavior after the funeral.
• The defense presented evidence regarding a previous fire that destroyed a detached garage before Diar and her son moved into the house where the fire occurred.

The defense quoted statements at trial including Diar’s denial of killing:

• Diar told the original judge that “I didn’t kill my son. I couldn’t show remorse for something I didn’t do.”

Jury verdict

After a one-day hearing described for the final phase, the jury took only 4 hours to convict Diar of the murder and arson. The jury found Diar guilty on all 10 charges against her, including aggravated murder, aggravated arson, and tampering with evidence.

Sentencing

After conviction, the jury decided on death penalty sentencing after weighing aggravating and mitigating factors. Diar received a death sentence.

The Ohio Supreme Court later vacated the death sentence:

• The Ohio Supreme Court upheld Diar’s aggravated murder conviction but reversed the death sentence and remanded for a new mitigation hearing because jurors were not properly instructed that any single juror could have saved Diar’s life by refusing to consider the death penalty.
• The cause was remanded for a new mitigation hearing pursuant to R.C. 2929.06.

A later agreement resulted in a change in sentence:

• In June 2010, Nicole Diar will spend the rest of her life in prison for the 2003 murder under an agreement with prosecutors approved by a three-judge panel.
• Counsel stated the life without parole sentence would keep Diar from returning to death row.

Appeals

Ohio Supreme Court (December 2008)

In State v. Diar (December 10, 2008), the Ohio Supreme Court:

• Affirmed Diar’s convictions.
• Reversed her death sentence.
• Remanded the cause for a new mitigation hearing.

The Supreme Court’s decision included discussion of:

• The denial of a “solitary juror” instruction at the penalty phase.
• The trial court’s refusal to give the defense requested instruction requiring the jury to go down to life without parole if a single juror concluded that the aggravating circumstances did not outweigh mitigating circumstances beyond a reasonable doubt.
• The prosecution’s concession that the failure to provide such instruction constituted error, requiring remand for a new mitigation hearing.

Outcome

Diar avoided retrial for the death penalty after being resentenced through an agreement with prosecutors. In June 2010, the agreement approved by a three-judge panel resulted in Diar serving life without parole for the 2003 murder of Jacob Diar.

Other details

People, relationships, and key participants

• Jacob Diar — Diar’s son, age 4 at death.
• Nicole Diar — defendant-appellant; convicted of aggravated murder and related felonies.
• Marilyn Diar — Diar’s mother; testified for the defense.
• Ed(ward) Diar — Diar’s father; involved in giving police keys.
• Rebecca Diar — Diar’s sister; testified through description of events involving medicine.
• Taylor Diar — Rebecca’s daughter; prescribed medicine implicated in codeine administration.
• Chad Diar — Diar’s brother; drove a limousine on the day before funeral and gave police keys.
• Leroma Penn — Diar’s next-door neighbor; changed locks.
• Edgar Penn — Leroma Penn’s husband.
• John Walker and Nate Watkins — acquaintances mentioned in Diar’s discussion of possible involvement and theft of keys.
• Dennis P. Will — Lorain County Prosecuting Attorney.
• Tony Cillo — Assistant Prosecuting Attorney.
• Mike Nolan — assistant county prosecutor mentioned in trial coverage.
• Michael Nolan and Kosma Glavas — references to prosecutors and the late judge in trial coverage.
• Visiting Judge Judith Cross — part of three-judge panel described in June 2010.
• Judges Raymond Ewers and Christopher Rothgery — part of three-judge panel described in June 2010.
• Attorney Kreig Brusnahan — one of Diar’s attorneys in June 2010 coverage.
• Prosecutor Dennis Will — quoted regarding the deal and sentencing risk in June 2010 coverage.
• Juror Bev Suckow — served on the original jury and recommended death sentence; quoted about the jury’s conclusion.

Locations

• Lorain, Ohio — Diar’s home and where the case was tried and adjudicated.
• 910 W. 10th Street — the rental home Diar and Jacob moved into.
• Beavercrest Street — the apartment where Diar and Jacob lived during early 2003.
• West 10th Street home in Lorain — referenced in trial coverage.
• Lorain County Justice Center — venue referenced in June 2010 hearing coverage.
• Ohio Reformatory for Women — Diar was held there.

Specific quotations preserved from the record

• Diar: “I didn’t kill my son.
• In the videotaped interview context (as quoted): Diar said: “[N]o way” and began sobbing.
• In the videotaped interview context (as quoted): Diar said, “I did not harm my son. He was my life.”
• Prosecutor Michael Nolan (opening arguments quote in coverage): “On that day, on that hot August day, Jacob Diar met his death. He met his death at the hands of his mother,”
• Prosecutor Michael Nolan (alleged in coverage): “She's been an absentee mother, and now she doesn't have to be a mother at all because the child is dead,”
• Prosecutor Michael Nolan (statement in coverage): “Mercifully, we anticipate the evidence to show Jacob was dead by the time the fire engulfed his body,”
• Assistant Prosecutor Mike Nolan (in coverage, on demeanor and the case beginning): “This case only partially began on the day of Aug. 27, 2003,”
• Assistant Prosecutor Mike Nolan (in coverage): “It really begins on a day in 1979 when she was lit on fire.”
• Assistant Prosecutor Tony Cillo (in coverage): “This case only partially began on the day of Aug. 27, 2003,”
• Fire investigator Bethune (as quoted in the Supreme Court summary of findings): “fire was started by the direct act of a human hand and flame device with an accelerant.”
• Coroner Dr. Matus (as quoted): “very peculiar and somewhat alarming”
• Coroner Dr. Matus (as quoted): “homicidal violence * * * of an undetermined origin.”
• Diar during ambulance interview (as quoted): “My baby's inside.”
• Griffith search report (as quoted): Diar told the firefighter: “[N]o, no, I mean he's upstairs. He's upstairs.”
• Diar (as quoted in trial coverage about attending funeral night): “I want the liquor. Don't forget the liquor.”
• Prosecutor Michael Nolan (closing theme quote in coverage): “No mercy, no kindness ... He is dead at your hands, Nicole Diar.”
• Defense attorney John Pyle (in coverage): “We have the right to protect ourselves,”
• Defense attorney John Pyle (in coverage): “But I also believe that when we can extend mercy, we should do it because kindness begets kindness and mercy begets mercy.”
• Dr. Matus (as quoted about inability to determine head injury): “near total destruction * * * of the skull itself.”
• Bethune (as quoted about fire set): Bethune concluded that the fire was started by “the direct act of a human hand and flame device with an accelerant.”
• Fire investigator Bures (as quoted): “fire was set; it was not accidental.”
• Diar to neighbor Leroma about keys and lock changes (as quoted in Supreme Court narrative): Diar said she was going to change the locks to make sure that the house was safe.

Evidence details and contested points mentioned in the case

• Dr. Matus determined cause of death as homicide by undetermined origin; the exact cause of death was not determined.
• Bethune and Bures concluded the fire was set with gasoline as accelerant; no gasoline container was recovered.
• The defense argued no drug was found in Jacob’s body and no gasoline was found in the home.
• Evidence included observations that Diar’s skin and clothing were not covered in soot and no gasoline smell was detected on her person, contrasted with later claims about smell of smoke being documented in a medical report.