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AG’s office files Supreme Court appeal in Foad Afshar case 

  • Foad Afshar sits in Merrimack County Superior Court on Friday, July 7 during a status conference in a sexual assault trial. Caitlin Andrews—Monitor staff

  • Supporters of Foad Afshar sit in Merrimack County Superior Court on Friday, July 7 during a status conference. Caitlin Andrews—Monitor staff



Monitor staff
Friday, July 07, 2017

The state Attorney General’s office has appealed a Superior Court judge’s decision to grant a new trial to a former Concord psychologist convicted of sexually assaulting a 12-year-old patient.

Foad Afshar of Bow had his conviction thrown out and was granted a new trial in March by Judge Diane Nicolosi, who found evidence of juror bias. Nicolosi ruled that two jurors, including the jury foreman, eliminated Afshar’s right to a fair trial by not disclosing their status as sexual assault survivors during the jury selection process.

In the Attorney General office’s appeal, Assistant Attorney General Sean Locke is asking the state Supreme Court whether the correct legal standard was applied in Nicolosi’s ruling, according to court documents.

The case is unique, Locke said, because the Supreme Court has never ruled on the process of questioning jurors when information about them comes to light after a conviction.

“Most of the law in New Hampshire deals with questions related to jurors that come up before a trial, and whether that results in a dismissal or not, and whether that was the correct decision,” he said. “This is after a conviction, and the Supreme Court hasn’t addressed what standards need to apply in that case.”

Locke also questions the court’s decision to question the jurors in open court during a hearing on Afshar’s request for a new trial.

“Our concern is that the open court proceeding, with the media and Foad Afshar’s supporters there, may have affected the jurors and the process, along with the court’s ability to evaluate,” Locke said.

He went on to say the two jurors did not know the questioning was going to be held in open court, which may have affected their demeanor, which was prominent in Nicolosi’s decision to grant a new trial.

Nicolosi based her decision off of the testimony of the two jurors, who appeared before her in February. She wrote in her ruling that the male foreman had a clear bias in favor of victims, while the other juror showed emotional difficulty with her own experience. In each circumstance, the jurors would have been excused from the jury pool, the judge said.

Both jurors brought up their status as victims of sexual assault during jury deliberations as other jurors were expressing doubt about Afshar’s guilt, according to court documents.

“In this case, bias went to the heart of the matter in dispute, the credibility of the complainant,” Nicolosi wrote. “Such a bias necessarily produced the jurors’ verdicts and deprived the defendant of an impartial jury. The court concludes that justice was not done.”

Nicolosi wrote in her decision that neither juror could be considered impartial, although for different reasons.

Afshar was sentenced Aug. 26 to a three- to six-year prison sentence after a jury determined he touched a young patient’s genitals during a session Jan. 6, 2015. He was found guilty on one felony count of aggravated sexual assault and an alternative misdemeanor count of simple assault, as well as two counts of unlawful mental health practice, both misdemeanors. He was incarcerated for six months and released after he was granted a new trial. Afshar has also appealed his conviction to the state Supreme Court.

Afshar’s attorney Ted Lothstein said his client is still moving forward with his appeal, although it is unclear if the two appeals will be handled separately or together.

“This has been very hard on his wife and children,” Lothstein said. “It’s been a long ordeal.”

The Attorney General’s appeal was filed Wednesday, two days before Afshar appeared in court, along with friends and family, for a status conference on Friday. Afshar has been out on $5,000 personal recognizance bail since March.

(Caitlin Andrews can be reached at 369-3309, candrews@cmonitor.com or on Twitter at @ActualCAndrews.)