AG Asks Court to Nix Molestation Retrial

  • Foad Afshar sits in Merrimack County Superior Court on Friday, July 7 during a status conference in a sexual assault trial. Caitlin Andrews / Monitor file

  • 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. Concord Monitor file photograph

Concord Monitor
Published: 6/7/2018 12:10:13 AM
Modified: 6/7/2018 12:10:22 AM

The state Attorney General’s Office will argue before the state Supreme Court that a Concord psychologist whose sexual assault conviction was thrown out doesn’t deserve a new trial.

Foad Afshar, of Bow, N.H., was found guilty two years ago of molesting a 12-year-old patient, but was granted a new trial in March 2017 by Merrimack County Superior Court Judge Diane Nicolosi, who ruled two jurors, including the jury foreman, potentially were biased against Afshar. The jurors eliminated Afshar’s right to a fair trial because they did not disclose their status as sexual assault victims during the jury selection process, Nicolosi ruled.

Prosecutors appealed Nicolosi’s decision in July and will argue on June 27 that the trial court erred in its decision because it did not consider whether the jurors gave false answers during the selection process and their motivations for providing “any allegedly false answers.”

Ted Lothstein, Afshar’s attorney, maintains that Nicolosi’s ruling should be upheld, writing that the procedures ensuring a defendant get a fair trial “cannot function when jurors do not answer questions accurately during jury selection,” according to the defense’s brief.

Moreover, he’ll be arguing that one of the jurors “was actually biased, that both jurors were unfit to serve in this case, and that they disclosed they had been victimized to other jurors, contaminating the deliberations and inflicting prejudice,” the defense’s brief says.

Nicolosi based her decision on the testimony of the two jurors who appeared before her in February last year. She wrote in her ruling that the male foreman had a clear bias in favor of victims, while the other juror showed emotional difficulty with her own experience.

In each circumstance, the jurors would have been excused from the jury pool, the judge said.

Both jurors brought up their status as victims of sexual assault during jury deliberations as other jurors were expressing doubt about Afshar’s guilt, according to court documents.

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