Judge upholds decision granting ex-Concord psychologist new trial

  • 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

  • Foad Afshar (left) walks back from a bench conference during a re-trial hearing at Merrimack County Superior Court recently. Judge Diane Nicolosi threw out Foad Afshar’s sexual assault conviction in March and upheld that ruling this week. Monitor file

  • 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
Published: 6/20/2017 2:06:25 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 judge has upheld her decision to grant a former Concord psychologist a new trial despite an objection from county prosecutors.

Judge Diane Nicolosi threw out Foad Afshar’s sexual assault conviction in March, ruling that he had not received a fair and impartial trial last year in Merrimack County Superior Court in Concord. Nicolosi found that two jurors – including the jury foreman – did not disclose their status as sexual assault survivors until deliberations and were biased.

Assistant Merrimack County Attorney Kristin Vartanian filed an 11-page objection in April, asking Nicolosi to reconsider her March 28 ruling granting Afshar a new trial. Nicolosi has since denied the request, meaning the county attorney’s office must now decide whether it will retry the case.

Afshar of Bow was sentenced last summer to three to six years in prison after a jury determined he touched a young patient’s genitals during a session Jan. 6, 2015. Afshar was found guilty of aggravated felonious sexual assault, simple assault and unlawful mental health practice.

Afshar, who was serving his sentence at a Massachusetts prison, was released on personal recognizance bail after Nicolosi’s ruling in late March.

In the months since the verdict, Vartanian has maintained that all jurors acted impartially, despite the fact that two of them failed to disclose their experiences as victims when the topic was raised during jury selection. She said the two jurors had simply misunderstood the judge’s question about whether they’d been victims of a crime, noting that neither situation had involved the police.

Nicolosi ruled the male foreman had a clear bias in favor of victims, while the other juror showed emotional difficulty with her own experience, and both jurors should have been excused from the jury pool.

Before the trial, the foreman had read a book about a female sexual assault survivor, contacted the author and corresponded with her directly. After the trial, the foreman contacted state Rep. Bill Marsh to say he had an extremely difficult time with a bill that would have required a higher burden of proof in sexual assault cases if the defendant had no prior convictions, according to court records. The bill was later killed in a House committee.

The two jurors explained how their experiences as survivors of sexual abuse had come to light during a hearing in Concord in late February.

Vartanian had objected to a public hearing, arguing that an open court process would infringe upon the survivors’ privacy rights. The court, however, ruled against her.

She said the defense being allowed to grill two jurors in front of dozens of Afshar supporters and several members of the press left both jurors feeling humiliated, vulnerable, upset and revictimized, Vartanian said.

In her latest ruling, Nicolosi said she understood both jurors were negatively affected by the proceedings, and that she would seek to “minimize any such harm in future proceedings to the extent possible.” While the state had argued that the emotional state of jurors and their demeanor had been a byproduct of an ill-executed judicial process, Nicolosi said she considered the “totality of the evidence” – and not just jurors’ demeanor – in granting a new trial.

“The court is not persuaded that its conclusion was erroneous or should be changed,” Nicolosi ruled.

Attorneys are expected to meet in the next few weeks to discuss the status of the case against Afshar and how it will proceed.

 

(Alyssa Dandrea can be reached at 369-3319, adandrea@cmonitor.com or on Twitter @_ADandrea.)




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