Judge allows some of dying boy's statements in dad's murder trial

After her son languished in a medically induced coma for nearly two months, Nisha Patel said the 7-year-old boy awoke to tell her it was his father who hurt him and his younger brother.

A DuPage County judge ruled Wednesday prosecutors may use the Jan. 12, 2008, conversation as evidence in the Glendale Heights father's trial on charges he murdered his two sons. But Judge Kathryn Creswell barred similar statements the mother and police said the boy made that next day as two officers listened in from his hospital room doorway.

Both statements were not recorded.

The father, Kaushik J. Patel, 35, may face the death penalty if convicted of killing Vishv and 4-year-old Om after setting them on fire Nov. 18, 2007, in their home.

Om died Jan. 17, 2008 in the burn unit at Loyola Medical Center in Maywood. Vishv's condition improved, but the boy took a sudden turn for the worse and died Feb. 19, 2008, five weeks after his alleged statements blaming his father.

Attorneys on both sides disagreed whether Vishv's words, as repeated by his mother and police, were admissible. At issue was Kaushik Patel's constitutional right to confront his accuser, and Vishv cannot testify. So, it was up to Creswell to decide if the so-called "hearsay" statements were reliable enough to be allowed without violating the defendant's rights.

Both the Illinois and U.S. supreme courts have weighed in on the highly debated issue. Though legal experts often disagree while interpreting justices' opinions, case law does seem to favor protecting the defendant's 6th Amendment rights.

Creswell barred the second hospital statement on Jan. 13, 2008, in which police were present, but the judge cited Nisha Patel's testimony last week as part of her reason for allowing the first statement. Creswell found Vishv offered the statements without prompting.

"(Nisha Patel) was not acting as an agent of the police," Creswell said of the first conversation. "Her motivation while remaining at his bedside was one of love and parental concern. The timing, content and circumstances of the statement provide sufficient safeguards of reliability."

Kaushik Patel told the Daily Herald in a March 2008 jail interview he meant to harm only himself in a botched suicide attempt. He said the children burst into the bathroom unexpectedly. The father said he was despondent over marital problems that began after his mother-in-law moved in with his family.

His account of what happened runs contrary, though, to what Nisha Patel said her dying son told her. She testified during last week's court hearing that Vishv told her his father lit him and his brother on fire after having them take a bath in a gas-filled container in the parents' bathroom.

Lawyers are back in court March 25 for a hearing on the constitutionality of the death penalty. Patel remains in the DuPage County jail on a $10 million cash bond.