Oral Argument Previews
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Tuesday, Aug. 26, 2008
State of Ohio v. Nicole Diar, Case no. 2005-2264
8th District Court of Appeals (Lorain County)
Cuyahoga County Bar Association v. Anne Veneziano, Case no. 2008-0824
Disciplinary Counsel v. Don S. McAuliffe, Case no. 2008-1200
Death Penalty
State of Ohio v. Nicole Diar, Case no. 2005-2264
8th District Court of Appeals (Lorain County)
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.
Contacts
Anthony Cillo, 440.329.5393, for the state and Lorain County prosecutor’s office.
Linda E. Prucha, 614.466.5394, for Nicole Diar.
Attorney Discipline
Cuyahoga County Bar Association v. Anne Veneziano, Case no. 2008-0824
The Board of Commissioners on Grievances & Discipline has recommended that the license of Cleveland attorney Anne Veneziano be suspended for one year, with all 12 months of that term stayed on conditions, for disciplinary rule violations arising from her failures to deduct and remit payroll taxes for employees of her law office for a period of several years, or to file timely state and federal income tax returns and pay personal income taxes that she owed for the years 2001 through 2005.
Veneziano admits the conduct on which the board’s findings are based, but argues that she should not be found guilty of ethical violations or subjected to a stayed license suspension because she relied on the advice and services of her husband, a certified public accountant, to whom she entrusted all of the business functions of her law practice.
Attorneys for the Cuyahoga County Bar Association, which prosecuted the complaint against Veneziano, urge the Court to adopt the findings and recommendation of the disciplinary board. They argue that, as a licensed attorney, Veneziano was responsible for knowing and complying with the tax laws applicable to her legal practice, and that duty is not excused by her reliance on others to handle her business affairs.
Contacts
Ellen S. Mandell, 216.771.7080, for the Cuyahoga County Bar Association (now Cleveland Metro Bar Association).
Anne Veneziano, pro se: 216.464.8420.
Attorney Discipline
Disciplinary Counsel v. Don S. McAuliffe, Case no. 2008-1200
The Board Of Commissioners On Grievances & Discipline has recommended that former Fairfield County Municipal Court Judge Don S. McAuliffe be permanently disbarred for multiple violations of state judicial and attorney discipline rules arising from his convictions on federal felony charges of mail fraud, conspiracy and money laundering. McAuliffe is currently serving a 13-year term in federal prison for those convictions, which involved the filing of a fraudulent insurance claim after McAuliffe and another person conspired to set fire to a home he owned in the Lancaster area. His law license has been under an interim suspension since his felony convictions in January 2005.
McAuliffe has entered objections to the board’s recommendation of disbarment. He notes that he has a motion for post-conviction relief still pending before a federal court, and requests a continuance of the disciplinary case against him based on his felony convictions until that motion has been resolved. McAuliffe also asks the Court to consider whether its 1998 decision in Disciplinary Counsel v. Gallagher, holding that a judge found guilty of a felony was subject to disbarment despite mitigating factors that led the disciplinary board to recommend only an indefinite suspension, effectively deprives a judge convicted of a felony of any meaningful legal recourse in the disciplinary process by precluding any sanction less severe than disbarment.
Contacts
Jonathan Coughlan, 614.461.0256, for the Office of Disciplinary Counsel.
David J. Graeff, 614.226.59, for Don McAuliffe.
These informal previews are prepared by the Supreme Court's Office of Public Information to provide the news media and other interested persons with a brief overview of the legal issues and arguments advanced by the parties in upcoming cases scheduled for oral argument. The previews are not part of the case record, and are not considered by the Court during its deliberations.
Parties interested in receiving additional information are encouraged to review the case file available in the Supreme Court Clerk's Office (614.387.9530), or to contact counsel of record.