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NH Supreme Court upholds ruling ordering new trial for psychologist convicted of molesting patient, 12

New Hampshire Union Leader

October 12. 2018 10:28PM

CONCORD — The state Supreme Court has upheld a Superior Court ruling ordering a new trial for Concord psychologist Foad Afshar, who was found guilty two years ago of molesting a 12-year-old patient.

Two unnamed jurors were at the heart of Afshar’s appeal.

Both had been victims of sexual assault as children and both failed to disclose those assaults during questioning of potential jurors before Afshar’s trial.

In March of 2017, Merrimack County Superior Court Judge Diane Nicolosi threw out the guilty verdict and called for a new trial, citing juror misconduct.

The Attorney General appealed Nicolosi’s decision, claiming she used hindsight inappropriately and essentially recreated the jury selection process.

The state argued that it wasn’t enough for Afshar’s attorneys to prove that the jurors intentionally failed to answer the question honestly during jury selection; they also had to prove that an honest answer would have provided a valid basis for dismissing the juror.

In its decision made public Friday, the Supreme Court concluded that Nicolosi properly determined that the dishonest responses were intentional and that had the potential jurors been honest, they would have been disqualified.

A native of Iraq, Afshar has practiced for 30 years, is the father of three and was past president of the New Hampshire Psychological Association. He also taught psychology and philosophy at the New Hampshire Institute of Art.

He was charged with molesting a 12-year-old patient.

During jury deliberations Juror No. 6, a 64-year-old man who had been elected jury foreman, disclosed that he had been sexually abused at the age of 5 by a babysitter. He said that to counteract the opinion of fellow jurors who said that Afshar did not look like a molester, according to the court.

Also during jury deliberations, Juror 14 shared her view that there was no profile of an offender and that she herself had been a victim of childhood sexual assault.

In her ruling, Nicolosi emphasized that the crime perpetrated against Juror 6 was “substantially similar to the crime the defendant was accused of committing.”

“Based on these findings, the trial court sustainably exercised its discretion in concluding that Juror 6’s dishonest answer (during jury selection) demonstrated a bias that, if disclosed, would have warranted excusal for cause,” according to the Supreme Court decision.

The Afshar case inspired a failed bill in the last legislative session that would have required corroboration of a victim’s testimony in a sexual assault case if the defendant has no prior convictions for sexual assault.

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