Ex-therapist wants new trial in sex abuse case after learning jurors had been abused

  • Foad Afshar

Monitor staff
Published: 1/4/2017 7:02:18 PM

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.

A former Concord child psychologist convicted of molesting a 12-year-old boy is asking for a new trial in Merrimack County Superior Court after learning that at least two of the jurors who sat on his case did not disclose that they were victims of childhood sexual abuse.

Foad Afshar of Bow was sentenced Aug. 26 to three to six years in prison for 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.

The charges stemmed from an accusation that Afshar touched a young patient’s genitals during a session Jan. 6, 2015, and had allowed his license to practice to lapse at the time of the crime. He is incarcerated at a facility in Massachusetts, according to the state prison’s website. 

Separately, Afshar has appealed to the state Supreme Court asking for his conviction to be overturned, but that issue is on hold until a judge decides whether to grant a new trial, according to attorney Ted Lothstein, who did not represent Afshar in the initial trial. Lothstein filed the appeal in September, citing ineffective counsel.

But Lothstein did not learn about the jurors’ history as survivors of abuse until October when he hired an investigator to conduct a post-trial assessment, he said.

A juror identified as L.J. told the investigator that she had been touched inappropriately by neighbors when she was younger, according to the request for a new trial, filed Jan. 3. The juror was “determined to be a good juror,” and wanted to be as impartial as possible; however, when she heard the defendant was charged with sexual assault, she told the investigator she felt “God must have put me in this position to help someone else in life.”

L.J. allegedly disclosed this to the other jurors during deliberations, according to the motion. After the disclosure, another juror identified as C.L. said he or she had experienced a similar situation in the Catholic church. The motion states two jurors who had been on the fence about Afshar’s guilt then switched their votes to guilty after the disclosures. C.L. refused to speak with the investigator on Nov. 25, according to court documents.

“They infected the entire jury by their disclosures during deliberations,” Lothstein wrote. This “violated Dr. Afshar’s fundamental right to a fair and impartial jury and to due process of law.”

Lothstein also wrote that the trial judge firmly believed that jurors who had been childhood victims of sexual abuse should not be seated on the jury.

“This is apparent from the record, because when a juror voluntarily disclosed that the juror or someone close to the juror had been the victim of childhood sexual abuse, this court immediately excused the juror, without any further effort to ‘rehabilitate’ the juror,” he wrote. According to the documents, at least four potential jurors were excused when they disclosed they either worked with sexual assault survivors or were survivors themselves.

However, the defense did not ensure that the question of whether a juror or a juror’s family member was a survivor of sexual assault was asked of everyone during jury selection, Lothstein wrote.

The motion also argues Afshar received ineffective counsel when his prior attorney failed to call to the stand two potential expert witnesses and a school counselor who met with the victim two days after he said he was assaulted. According to court documents, the counselor told police the victim never disclosed any inappropriate actions to her and had said he liked Afshar. However, the boy stated during the trial that he told the counselor about his assault during that same session. Lothstein alleges the boy’s testimony was unreliable and that he had invented the accusation as a way to get out of his next session with Afshar.

Lothstein said if the lower court does not grant Afshar a new trial, he will continue to seek an appeal through the Supreme Court.

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 in a similar situation. Dozens of former clients, family members and professional colleagues of Afshar attended his sentencing hearing, and a colleague of Afshar’s, Michael Kandle, created a website called “Justice for Foad.”

Kandle previously said in June 2016 that he took on a 12-year-old client whose mother was emotionally unstable. After meeting with the child following an outburst from the mother, Kandle said she threatened to accuse him of molesting the child after learning about the session’s focus.

Kandle said in September he created the website as a way to foster communication on the law, as well as a place to learn about the case and offer support. He maintains that Afshar is innocent.

“It’s so incompatible with what he is and who he is. He’s a healer,” Kandle said of Afshar after the conviction.

The appeal can be viewed at justiceforfoad.com

 

(Reporter Alyssa Dandrea contributed to this report. Caitlin Andrews can be reached at 369-3309, candrews@cmonitor.com or on Twitter at @ActualCAndrews.)

 

Editor’s note: The story has been updated to correct the spelling of Foad Afshar’s last name.

 

 




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