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New trial for Concord psychologist debated before Supreme Court

  • Foad Afshar shakes hands with a supporter outside the New Hampshire Supreme Court on Wednesday, June 27, 2018. The court heard oral arguments on whether two jurors who did not disclose their status as sexual assault survivors affected a sexual assault trial Afshar was convicted in. That conviction was thrown out last year. Caitlin Andrews—Monitor staff

  • Foad Afshar (center) stands with his supporters outside the New Hampshire Supreme Court on Wednesday, June 27, 2018. The court heard oral arguments on whether two jurors who did not disclose their status as sexual assault survivors affected a sexual assault trial Afshar was convicted in. That conviction was thrown out last year. Caitlin Andrews—Monitor staff

  • Foad Afshar (center) stands with his supporters outside the New Hampshire Supreme Court on Wednesday, June 27, 2018. The court heard oral arguments on whether two jurors who did not disclose their status as sexual assault survivors affected a sexual assault trial Afshar was convicted in. That conviction was thrown out last year. Caitlin Andrews—Monitor staff

  • Supporters of Foad Afshar (foreground) listen to oral arguments at the New Hampshire Supreme Court on Wednesday, June 27, 2018. The court heard arguments on whether two jurors who did not disclose their status as sexual assault survivors affected a sexual assault trial Afshar was convicted in. That conviction was thrown out last year. Caitlin Andrews—Monitor staff



Monitor staff
Wednesday, June 27, 2018

As attorneys debated before the state’s Supreme Court whether a Concord psychologist whose sexual assault conviction was thrown out should get a new trial, they kept returning to a central theme: how bias affects a trial’s outcome.

Lawyer Ted Lothstein, representing Foad Afshar of Bow, maintained Wednesday that two jurors who did not disclose their status as childhood sexual assault victims during the jury selection process – but did so during jury deliberations – prevented his client from having a fair trial and should have been excused, regardless of whether their disclosures influenced other jurors’ decisions.

Assistant Attorney General Sean Locke argued the trial court judge was wrong to rule that the jurors were biased based on their previous life experiences, regardless of their demeanor during questioning or actions before or after the trial.

Justices questioned how those jurors’ actions affected the outcome of the trial.

“There wasn’t any testimony from other jurors that (the two jurors’ disclosure) impacted their decision,” said Associate Justice James Bassett. “...Shouldn’t that matter to us? Wouldn’t that be useful information?”

Lothstein said only the two jurors were questioned, adding that it would be “problematic” and “inappropriate” to ask other jurors whether the disclosures had an impact. Further, Lothstein said it didn’t matter whether their conduct affected the deliberations because defendants have a right to an impartial trial.

“The state points out there wasn’t any evidence that this affected deliberations,” Bassett said.

At issue is whether Afshar deserves a new trial after he was convicted almost two years ago of a felony count of aggravated sexual assault, an alternative misdemeanor count of simple assault and two misdemeanor counts of unlawful mental health practice.

Merrimack County Superior Court Judge Diane Nicolosi, who presided over Afshar’s original trial, ruled last year that she would have excused the two jurors from the jury pool had they answered “yes” to a question of whether they or someone they knew had been the victim of a crime.

Nicolosi wrote that the male foreman had a clear bias in favor of victims that surfaced in a few actions, including corresponding with a female sexual assault victim who wrote about her experience; opposing a bill that would have required a higher burden of proof in sexual assault cases if the defendant had no prior convictions that was drafted in response to Afshar’s original conviction; and excusing himself from another sex assault trial where the victim was a girl, citing his daughter as a reason he could not be impartial.

The other juror showed emotional difficulty with her own experience during questioning.

Prosecutors have maintained that the jurors did not disclose their status because they did not view what happened to them as a crime. Both the male jury foreman and another female juror revealed they had been sexually assaulted during their childhood.

Locke criticized Nicolosi’s methods of bias-finding, particularly where the judge examined the jurors’ demeanors during questioning. Nicolosi had written that the male juror seemed to have a hard time seeing himself as a victim, while the female juror became emotional during questioning.

“(Nicolosi’s decision) was reached on conclusions that the jurors are continuing to suffer trauma,” he said. “That’s a hard question that goes beyond demeanor. ...It’s saying ‘I know better than you what you’re going through and what you’re thinking.’ ”

But Associate Justice Patrick Donovan wasn’t so sure the information was irrelevant.

“This is significant information isn’t it?” he asked. “This isn’t a question of where someone worked 10 years ago...this has to do with someone who suffered a crime similar in nature to the same crime being litigated, isn't that significant?”

Not if jurors followed instructions to prevent their pre-conceived notions from affecting their decisions, Locke said. 

Lothstein argued that the jurors’ histories affected their conduct during deliberations, noting the female juror brought up her own experiences after another juror said they had a hard time imagining Afshar – who had no prior criminal record – of committing sexual assault. 

But Chief Justice Robert Lynn questioned whether being a victim of a crime legally requires a judge to excuse a potential juror from a pool.

“The second part of this is not could the judge have excused a juror from cause, but would this have required an excuse from cause,” he said. “...It might mean a judge could exercise her discretion, but doesn't mean she must, right?”