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.
The state’s attorney general’s office will argue before the Supreme Court that a Concord psychologist whose sexual assault conviction was thrown out doesn’t deserve a new trial.
Foad Afshar of Bow was found guilty two years ago of molesting a 12-year-old patient, but was granted a new trial in March 2017 by Merrimack County Superior Court Judge Diane Nicolosi, who ruled two jurors, including the jury foreman, were potentially biased against Afshar. The jurors eliminated Afshar’s right to a fair trial because they did not disclose their status as sexual assault victims during the jury selection process, Nicolosi ruled.
Prosecutors appealed Nicolosi’s decision in July and will argue on June 27 that the trial court erred in its decision because it did not consider whether the jurors gave false answers during the selection process and their motivations for providing “any allegedly false answers.”
Ted Lothstein, Afshar’s attorney, maintains that Nicolosi’s ruling should be upheld, writing that the procedures ensuring a defendant get a fair trial “cannot function when jurors do not answer questions accurately during jury selection,” according to the defense’s brief.
Moreover, he’ll be arguing that one of the jurors “was actually biased, that both jurors were unfit to serve in this case, and that they disclosed they had been victimized to other jurors, contaminating the deliberations and inflicting prejudice,” the defense’s brief says.
“Both jurors were unfit to serve in this case, and that they disclosed they had been victimized to other jurors, contaminating the deliberations and inflicting prejudice,” Lothstein wrote.
Nicolosi based her decision on the testimony of the two jurors who appeared before her in February last year. 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.
But Assistant Attorney General Sean Locke says the jurors did not willfully conceal they were sexual assault victims because they did not consider themselves to be victims of a crime and therefore did not have “actual bias” against Afshar.
Locke said the jury’s foreman, who testified to being sexually assaulted by a baby sitter when he was young, was “penalized” for taking action against a failed bill inspired by the Afshar case. That bill would have required a victim’s testimony in a sexual assault case to have corroboration in instances where the defendant has no prior convictions for sexual assault.
Locke also questions the decision to have the jurors testify in open court before the media and Afshar, saying the circumstances may have affected their demeanor.
(Caitlin Andrews can be reached at 369-3309, candrews@cmonitor.com or on Twitter at @ActualCAndrews.)