Victory on Appeal, and Dismissal, for Therapist Wrongfully Accused

October 27th, 2018
Posted By
Theodore Lothstein

In our most recent and perhaps our greatest victory, we won an appeal granting a new trial to a beloved and esteemed therapist wrongfully accused of sexual assault by a client.

The Decision by the New Hampshire Supreme Court

On October 12, 2018, the New Hampshire Supreme Court upheld a critical victory we had already won in the Superior Court - a victory that freed a therapist from prison who had been wrongfully accused of sexual assault by a client, and cleared his name. The Court held that the Superior Court was right to vacate the jury verdicts and sentences, and grant a new trial, for the therapist because juror bias infected the proceedings, resulting in an unfair trial.

Charges Dismissed

On October 17, 2018, the Merrimack County Attorney's Office issued a press release, announcing the State would not bring the case to trial again. Instead, the State dismissed the charges. This dramatic ending to the case was widely reported in the media:

The Story - How Could this Happen?

In early July, 2016, Dr. Foad Afshar hired our firm to represent him on appeal and in postconviction proceedings. We were inspired when we discovered that his incredible army of supporters raised the funds for his defense. They launched a website to publicize his case and raise funds for his defense. Scores of them had showed up in court proceedings to support Dr. Afshar, and they continued to do anything they could to support his cause.

His story, as told to us by his supporters and in the case record, was compelling. He had just been convicted by jury of a terrible crime, aggravated felonious sexual assault of a young patient. He was in prison. And the story made no sense. He was one of the most esteemed child therapists in New Hampshire. He had been the former President of the New Hampshire Psychological Association, demonstrating that his professional peers viewed him with the highest esteem. He had counseled and helped literally hundreds of children, teenagers and their families over the decades, including children with serious emotional disturbances, and none had ever made the slightest accusation of improper conduct. In fact, scores of them came forward to tell the Concord Police and prosecutors that Dr. Afshar was a great therapist, and a good man, who could not possibly have done such a thing.

How could this have happened?

Defense Investigator Rebecca Dixon

Our firm hired the State's preeminent investigator, Rebecca Dixon. Her task: try to interview jurors, in order to figure out - what went wrong? How could this happen? It was a long shot. The jurors had been through a grueling 9-day long jury trial. They have no obligation whatsoever to talk to a defense investigator. But somehow, Rebecca got jurors to tell their stories, and learned the unthinkable: two jurors had lied to the judge during jury selection, saying they had never been the victim of a crime, in order to get seated on the jury. But both jurors had been the victim of a terrible crime - the same crime that the government accused Dr. Afssar of committing - child sexual abuse. And both of these jurors disclosed their victimization to the rest of the jurors during deliberations - the same victimization that they had withheld from the presiding judge.

The Motion for New Trial

While Dr. Afshar's appeal was pending - and while he was suffering in prison - we filed a 50-page motion for new trial. In that motion, we argued that Dr. Afshar's former defense lawyer had rendered ineffective assistance of counsel, and more importantly, juror bias had infected the trial and jury deliberations, rendering the trial fundamentally unfair. The essence of our argument was simple and powerful: Even small children understand that when a decision maker is biased, the process can't be trusted, and the outcome can't be trusted.

The Court Granted the New Trial, Freeing Dr. Afshar from Prison.

After a contentious hearing, the Merrimack County Superior Court granted Dr. Afshar's motion for new trial. On March 28, 2017, the court ordered that the convictions were vacated, the sentence was vacated, and Dr. Afshar had the right to a new jury trial. Dr. Afshar was freed from prison and returned to his wife and children that day. This great victory was widely reported in the media:

The State's Appeal.

Subsequently, the government appealed the lower court's ruling. The government said that the convictions and sentence should be reinstated. Thus, the government did everything it could to take away Dr. Afshar's victory, and put him back in prison. This is how criminal litigation works in real life. It's not for the faint of heart.

The Oral Argument

In late June, 2018, Ted Lothstein and the government's lawyer argued the case to all five justices of the New Hampshire Supreme Court. The Union Leader printed this article, and this picture of Ted Lothstein and his client and supporters outside the courthouse:

Victory on Appeal

On October 12, 2017, the New Hampshire Supreme Court issued its written ruling. It's a published, landmark ruling that will have longstanding positive effects for the fairness of jury trials in our State. Fairness, not just to the accused, but to the government as well, and to parties in civil cases as well. All parties have the right to jurors who can make their decision free of bias, prejudice or sympathy. This is not a "criminal defendant's right." The justice system as a whole cannot achieve justice for anyone unless trials meet minimum standards for fundamental fairness. This case decision was widely reported in the media.

The End of the Journey

On October 17, 2018, the State announced it would not retry Dr. Afshar. Instead, the State dismissed all charges against him. Case over.

Once again, this announcement resulted in widespread media coverage:

Case Materials

Categories: Appeals, Criminal Cases In The News, News about Lothstein Guerriero PLLC