Concord
Foad Afshar was expected to be back in the area earlier this week after Merrimack County Superior Court Judge Diane Nicolosi granted him a new trial on charges he assaulted a 12-year-old patient during therapy.
Nicolosi ruled on Tuesday that two jurors — including the jury foreman — who disclosed their status as sexual assault survivors during deliberations were biased and eliminated Afshar’s right to a fair and impartial trial. The male foreman had a clear bias in favor of victims, while the other juror showed emotional difficulty with her own experience, Nicolosi wrote. In each circumstance, the jurors would have been excused from the jury pool, the judge said.
“In this case, bias went to the heart of the matter in dispute, the credibility of the complainant,” Nicolosi wrote. “Such a bias necessarily produced the jurors’ verdicts and deprived the defendant of an impartial jury. The court concludes that justice was not done.”
Afshar, of Bow, N.H., was sentenced on Aug. 26 to a three- to six-year prison sentence after a jury determined he touched a young patient’s genitals during a session on 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.
The judge’s decision to grant a new trial means Afshar’s conviction and sentence were thrown out and his original personal recognizance bail was reinstated, according to the ruling.
Afshar filed a motion for a new trial in Superior Court in January, claiming ineffective counsel and that he had not received a fair trial because two jurors failed to disclose during jury selection they had been victims of sexual abuse.
Afshar’s attorney Ted Lothstein argued that the two jurors inquestion brought up their personal experiences during a critical moment in deliberations when other jurors were questioning his guilt or innocence.
Assistant Merrimack County Attorney Kristin Vartanian argued that the jurors did not disclose their status earlier because they misunderstood the question posed about whether they or a family member had ever been a victim of a crime, because neither juror’s experience involved the police, according to separate post-trial interviews the prosecution conducted. In addition, both jurors repeatedly confirmed they felt they could be “neutral and objective,” according to court documents.
Nicolosi wrote in her decision that neither juror could be considered impartial, although for different reasons. The male juror was not credible in his view that he was impartial, “perhaps because he has not come to terms with his own experience,” as a victim of a crime, according to court documents.
“He seemed to have difficulty with the term even applying to him, as though it would be some kind of unacceptable vulnerability,” Nicolosi wrote.
Lothstein argued the jury foreman befriended other jurors and ultimately used his position to sway the Afshar jury toward conviction.
Before the trial, the foreman 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 “extreme 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. The bill was later killed in a House committee.
Nicolosi wrote that “the juror’s answers, his demeanor, and his actions and communications before, during and after trial … shows his personal identification with persons who report being victims of sexual assault, which resulted in at the very least a subjective bias that could not be set aside.”
Whether the second, female juror was impartial was a much harder call, Nicolosi wrote. While she believes the juror viewed herself as neutral, Nicolosi wrote that the juror’s emotional reaction to the questioning at the post-trial hearing would have led to her being excused.
“The court does not hold any view that the two jurors were untruthful in a willful manner, nor does it express any opinion as to the correctness of the verdict,” Nicolosi wrote. “The court believes both jurors intended to do their sworn duty. Sometimes, however, intention and capability are not joined.”