N.H. High Court Upholds Ruling

Concord Monitor
Published: 10/12/2018 11:46:47 PM
Modified: 10/12/2018 11:46:49 PM

Concord — The state’s Supreme Court unanimously agreed with a lower court judge who threw out a sexual assault conviction of a former Concord psychologist and granted him a new trial.

In a nine-page ruling released on Friday, Supreme Court Chief Justice Robert Lynn wrote that Foad Afshar, of Bow, N.H., was not given a fair trial because two jurors did not disclose that they were sexual assault victims during the jury selection of Afshar’s trial on charges he molested a patient.

“We’re absolutely thrilled with this ruling,” Afshar’s attorney Ted Lothstein said. “This affirms everything we’ve been arguing all along, that there was false info during jury selection that if the judge had known the truth about that juror, they never would have been seated.”

The ruling focuses on the jury’s foreman, identified as Juror 6, who testified after the trial that he did not disclose that he was assaulted by a babysitter as a child because he did not see himself as the victim of a crime.

Lynn wrote that although the foreman did not intend to be dishonest during the selection, his actions and experiences showed he was too biased to be impartial during the trial.

“Juror 6’s prejudicial bias was evidenced by his ‘defensive posture’ when asked about his possible biases toward sexual assault victims, and his inclination to communicate with the State rather than the defense team post-verdict,” Lynn wrote.

The foreman testified during the appeals process that he had been sexually assaulted by a babysitter at a young age. He did not remember the incident for 50 years until the perpetrator entered his business, which caused the foreman to experience distress for several days.

He also told the prosecution’s investigator that he did not believe the court’s question applied to him because he measured a crime by an arrest and conviction, something that had not occurred after his sexual assault. The court noted, however, that the foreman had also been a victim of various other crimes that he did not disclose during jury selection, one of which had resulted in a conviction.

“The explanation offered by Juror 6 for not doing so — that he regarded the victim of this crime as being his business rather than himself as the business owner — could readily be found to strain credulity,” Lynn wrote.

In addition, the foreman told the court he viewed himself as “an advocate for people,” which he demonstrated before and after the trial.

Prior to Afshar’s trial, the foreman reached out to a sexual assault victim who had authored a book he read. After the trail, he contacted Rep. William Marsh, R-Wolfeboro, who drafted a bill that would have required a victim’s testimony in a sexual assault case to have corroboration in instances where the defendant has no prior convictions for sexual assault. That bill was killed in 2017.

“Juror 6’s demeanor, as well as ‘his actions and communications before, during and after trial,’ demonstrated ‘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,’ ” Lynn wrote.

Finally, the foreman testified at the post-verdict hearing that he would not be able to sit on a sexual assault case involving a girl due to his feelings about his daughter, “an admission the trial court found troubling given that Juror 6 has a son as well,” Lynn wrote.

Lothstein said focusing on the foreman was appropriate. “Everybody recognized, including the trial judge, that the case was much more clear in regards to Juror 6,” he said.

“Even small children understand that when a decision is made by someone who is biased, the decision is unfair and can’t be trusted,” he added.

The decision means the County Attorney’s Office will need to decide whether to pursue a new trial in Superior Court.

Friday’s ruling was the latest turn in an emotional case that has spanned more than two years.

Afshar was sentenced in August 2016 to a three- to six-year prison sentence after a jury determined he touched a young patient’s genitals during a Jan. 6, 2015, session. 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.

Afshar appealed, arguing two jurors who were previous victims of crime brought up their personal experiences during a critical moment in deliberations when other jurors were questioning Afshar’s 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 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.

Merrimack County Superior Court Judge Diane Nicolosi disagreed, saying 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.

Amanda Grady Sexton, director of public affairs for the New Hampshire Coalition Against Domestic Violence and Sexual Violence, said sexual assault survivors are not inherently biased as jurors and are capable of serving on juries without bias.

“Considering that 1 in 4 women and 1 in 20 men in N.H. have been sexually assaulted, a jury of one’s peers will likely always include sexual assault survivors,” she said in an emailed statement.

“It is extremely concerning that jurors who were survivors of childhood sexual abuse were examined in open court without proper notice of the rights afforded in N.H.’s victim’s bill of rights. It’s critical that our criminal justice system recognize that many citizens have experienced victimization, and to ensure that jurors are also treated with the dignity and privacy that they deserve.”

Afshar has maintained his innocence throughout the process and has received enduring support from friends, family and colleagues, many of whom showed up at court proceedings wearing “Justice for Foad” buttons.

Lothstein gave special thanks to those supporters, who he said helped fund his legal representation and provided emotional support.

“We could not have been in this case without them,” he said.

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