Editor’s note: All sexual assault charges against former Concord psychologist Foad Afshar, who was accused of molesting a patient, were dropped by the Merrimack County Attorney’s Office in October 2018.
Two jurors didn’t disclose their status as child sexual abuse survivors in the sex assault trial of Concord psychologist Foad Afshar because they didn’t view themselves as victims of a crime, according to the prosecutor in the case.
Both jurors misunderstood the question posted about whether they or a family member had ever been a victim of a crime, because neither involved the police after being sexually assaulted at a young age. In addition, both jurors repeatedly confirmed they felt they could be “neutral and objective,” Assistant Merrimack County Attorney Kristin Vartanian wrote in an objection to Afshar’s request for a new trial.
“There is no indication that either of the jurors withheld this information from the court due to bias, or that their experiences prevented them from being fair and impartial in such a way that improperly produced the verdict,” the objection, filed last week, reads.
Afshar accused the jurors of misconduct in January and asked a judge to grant a new trial because they failed to disclose their status as victims of a crime to the judge but still brought up their personal experiences during deliberations.
Afshar of Bow was sentenced Aug. 26 to a three- to six-year prison sentence on one count of aggravated felonious sexual assault and an alternative misdemeanor count of simple assault, as well as two counts of unlawful mental health practice, both misdemeanors.
The jury determined Afshar touched a young patient’s genitals during a session Jan. 6, 2015. Prosecutors say he had allowed his license to practice medicine to expire before he committed the sexual assault. He is incarcerated at a facility in Massachusetts, according to the state prison’s website.
In his argument for a new trial, Afshar’s attorney Ted Lothstein said one juror spoke during deliberations about being touched inappropriately by a neighbor when she was younger, but was “determined to be a good juror,” and wanted to be as impartial as possible.
After her disclosure, another juror said he had experienced a similar situation in the Catholic church. Two jurors who had been on the fence about Afshar’s guilt switched their votes to guilty afterward, according to the defense.
But according to interviews conducted by the prosecution, the jurors never felt obligated to disclose their experiences because they never pursued criminal prosecution. The female juror never stated that she was the victim of a crime because “she doesn’t really think of what happened anymore and that nothing really came of it,” and because she viewed a crime as “something bigger that went through the process with police and courts,” Vartanian said.
Vartanian argued that the male juror also said he did not think of his experience as a crime because “it had never been reported and no one was ever arrested or charged.” He later said he would have disclosed his experience had the judge’s question been specific to sexual assault.
“This is not a situation where the jurors were deliberately dishonest,” Vartanian wrote. “Rather, both jurors honestly misunderstood the court’s question. Moreover, in New Hampshire, the relevant standard is not whether the juror misbehaved, but whether the conduct produced the verdict.”
Afshar has also argued he received ineffective counsel during the trial because his prior attorney failed to call two potential expert witnesses who could have refuted the victim’s testimony and did not require the judge to ask specific questions to jury members about whether they had been victims or knew victims of sexual assault.
In a separate filing, Vartanian asked the court to deal with the question of jury misconduct promptly because the more time that passes, the more unreliable the jurors’ memories get.
It’s been seven months since the guilty verdict was reached, and “after such a lengthy period of time, any further inquiry would be … limited to jurors’ after the fact statements as to the deliberation process,” Vartanian wrote. “Anything the jurors might say would be subject to question for the simple reason that jurors can change their minds after rendering a verdict.”
Should the court decide to reconvene the jury, Vartanian asked for a hearing to be held no less than 30 days from Feb. 3. If the court denies Afshar’s request for a new trial, the question of ineffective counsel would then be taken up separately.
The case garnered an outpouring of support for Afshar and sent a chill through the psychology community, causing many to question whether they could continue to work with young children without finding themselves facing similar accusations. Dozens of former clients, family members and professional colleagues attended Afshar’s sentencing hearing, and another colleague, Michael Kandle, created a website called Justice for Foad.
(Caitlin Andrews can be reached at 369-3309, candrews@cmonitor.com and on Twitter @ActualCAndrews.)