The Ohio Supreme Court on Wednesday overturned the death sentence of Nicole Diar, but upheld her 2005 conviction on aggravated murder and other charges for killing her 4-year-old son and then setting her Lorain home ablaze to cover up the crime.
The Supreme Court ordered a new sentencing hearing for Diar, 33, who has 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 before they began deliberating on Diar’s sentence.
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.
Diar’s mother, Marilyn Diar, said she was “elated” by the decision.
“We just pray that the right thing is done this time,” she said.
One of the original jurors in Diar’s case, who asked that her name not be used, said that’s exactly what she and her fellow jurors did.
“Honestly, I think we made the right decision,” she said.
Diar, who was burned when she was 4 when her nightgown caught fire, repeatedly denied that she had anything to do the death of her son, Jacob, which occurred in 2003.
“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.”
Marilyn Diar said she and her family will continue to fight to clear her daughter.
“We’ve held true that she was innocent,” Marilyn Diar said. “She’s never wavered, and neither have we.”
Lorain County prosecutor Dennis Will said his office conceded during the arguments before the Ohio Supreme Court that Glavas made a mistake, a decision that prosecutors in the case asked him to make.
Will said at the time that the law had recently changed and prosecutors didn’t believe the “solitary juror” instruction was proper.
Diar’s attorneys from the Ohio Public Defender’s Office, which did not return calls seeking comment, had also had argued that Diar’s conviction should be overturned on numerous grounds, including prosecutorial misconduct, and that Bradley hadn’t done a good enough job defending her.
The Supreme Court rejected those arguments and didn’t rule on others.
Bradley said he still believes Diar is innocent and should be spared death.
“I hate to see anybody be on death row, especially in a case where there was not absolute evidence of her guilt,” he said.
Will said he will push for death again based on “the circumstances of the crime, the method of death and the age of the victim.”
Will said his office hasn’t figured out exactly how a new sentencing hearing will be conducted, but he doubts the original jury will be recalled. Will said he believes a new jury will have to be picked and it will recommend a sentence for Diar.
That will be a lengthy process, he said.