Jurors from Foad Afshar trial recount deliberations

  • Foad Afshar (left) walks back from a bench conference during a re-trial hearing at Merrimack County Superior Court. A judge will decide whether two jurors who did not disclose their status as sexual assault survivors during jury selection, but did so during deliberations, warrants Afshar a new trial. Caitlin Andrews—Monitor staff

  • Foad Afshar (right) confers with attorney Ted Lothstein during a re-trial hearing in Merrimack County Superior Court. A judge will decide whether two jurors who did not disclose their status as sexual assault survivors during jury selection, but did so during deliberations, warrants Afshar a new trial. Caitlin Andrews—Monitor staff

  • Foad Afshar appears during a re-trial hearing at Merrimack County Superior Court. A judge will decide whether two jurors who did not disclose their status as sexual assault survivors during jury selection, but did so during deliberations, warrants Afshar a new trial. Caitlin Andrews—Monitor staff

Monitor staff
Published: 2/23/2017 12:14:48 AM

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’ revelations during deliberations that they had been victims of childhood sexual abuse should be reason enough to grant former Concord child psychologist Foad Afshar a re-trial after that jury convicted him of sexually assaulting one of his patients, Afshar’s attorney argued in a hearing Wednesday.

The two jurors were called back to Merrimack County Superior Court to explain how the revelation came about during deliberations and why they didn’t mention their experiences during jury selection.

By bringing up their personal experiences during a critical moment in the child psychologist’s trial, they were no longer offering opinions, but a level of expert testimony on the subject, Afshar’s attorney Ted Lothstein argued.

One of the jurors, who served as foreman for the case, said Wednesday that he and a female juror mentioned their experiences after another juror expressed doubts over whether Afshar could have assaulted one of his patients.

The foreman said the female juror responded by saying there is no profile for a perpetrator or victim of sexual assault – which includes herself.

Lothstein said their actions were a clear example of bias and should be enough to initiate a new trial, noting that both jurors said they had told few people about their experiences before the Afshar deliberations.

Merrimack County Assistant County Attorney Kristin Vartanian argued that the jurors insisted they had acted impartially, despite the fact that they hadn’t revealed their experiences during jury selection when asked if they had ever been victims of a crime.

Vartanian noted that the two jurors insisted afterward that they had misunderstood the judge’s question.

“I think it’s a pretty far reach to suggest the two jurors, giving as little details about their lives as they did ... completely disregarded Your Honor’s instructions to remain fair and impartial,” she said.

Judge Diane Nicolosi must now decide whether the jurors’ conduct renders the verdict against Afshar invalid, necessitating a new trial.

Afshar, of Bow, 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.

Afshar said during the original trial that he has strong community support and has never had a complaint against him during his 30 years of practice.

In Lothstein’s arguments on behalf of Afshar, he questioned the jurors’ ability to remain unbiased, citing several examples that he said showed prejudice.

Lothstein noted that the jury foreman had previously excused himself from a similar sex assault trial in which the victim was a girl, citing his daughter as a reason he could not be impartial. He said the foreman befriended other jurors and ultimately used his position to sway the Afshar jury toward conviction.

The foreman even contacted state Rep. Bill Marsh to say he had an “extreme difficult time” with House Bill 106 after the trial, Lothstein said. The bill was drafted in response to Afshar’s conviction and would have required victims to corroborate sexual assault allegations if the defendant had no prior convictions.

A House committee recently recommended killing the bill.

The foreman, 64, said he had been abused when he was 5 but was unaware of the abuse until 10 years ago, when his abuser walked into his workplace. The revelation was “breathtaking,” and he found it difficult to function normally for days, he said, because he had “buried” the memory. The only people he told, the foreman said, were his children and former wife.

A second, female juror called Wednesday was unable to speak in open court about her experiences, becoming distressed and causing the judge to call for a recess when she was unable to continue. The entirety of her testimony was held during a bench conference, but Lothstein said she had also testified to telling few people about her experience.

Vartanian argued that jurors can have some experience as a victim of a crime to sit on a jury, but must be certain they will be impartial throughout the trial.

She said the rest of the jury may need to be called in to testify on whether they had been swayed.

 

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




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