On March 28, 2017, the Hon. Justice Diane Nicolosi of the Merrimack County Superior Court granted the Motion for New Trial that we filed and litigated in a hearing on February 22, 2017 on behalf of Dr. Foad Afshar. The Court vacated Dr. Afshar’s convictions and sentence. The Court ordered that Dr. Afshar’s prior bail be reinstated. The Court's Order resulted in his immediate release from prison, the same day that the Order was issued.
As has been widely reported over the last many months, Dr. Afshar, a therapist, was accused by a young client of a sexual assault by inappropriate touching. Represented by a different law firm, he took his case to trial. On June 17, 2016, the jury found him guilty. On August 26, 2016, he was sentenced to serve three to six years in prison. He has been in prison ever since.
After the jury Dr. Afshar hired our firm as new counsel and we conducted an extensive investigation. We then filed a motion, the allegations of which were confirmed by the Court’s Order on 3/28/2017. Specifically: we learned, and the Court found, that two of the jurors had failed to disclose during jury selection that they had been the victim of childhood sexual abuse. They did not disclose this fact on juror questionnaires. And, they did not disclose their status as victims when the Judge, during jury selection, asked all jurors if they had ever been “victimized” by any other person, even if the crime was never prosecuted. One of these two jurors also failed to disclose that he had been victim of other crimes in the past as well.
We learned in our investigation, and the Court found in its Order, that during the jury deliberations, both jurors disclosed to the entire jury that they had been the victim of childhood sexual abuse. The jurors acknowledged that when they made that disclosure, the jury was still divided as to whether Dr. Afshar was guilty or not guilty. After those disclosures, the jury reached verdicts of guilty.
We prepared and filed a 54-page Motion for New Trial, arguing that Dr. Afshar’s fundamental rights to due process, to an impartial jury, and to a fair trial were violated by the selection of these jurors. The State objected. The Court scheduled a hearing for February 22, 2017 and heard the testimony of both jurors during that hearing.
On March 28, 2017 the Court released an Order, granting a new trial (the Order is linked below). The Court determined that both of the jurors were biased, could not be impartial, and would have been excused during jury selection if they had disclosed their childhood victimization when asked. The Court made clear that it was expressing no view “as to the correctness of the verdict.” However, the Court reasoned that the two jurors “bias went to the heart of the matter in dispute, the credibility of the complainant. Such a bias necessarily produced the jurors’ verdicts and deprived the defendant of an impartial jury. The Court concludes that justice was not done, and the equities require a new trial.”
At each court hearing that our firm has attended, as many as 70 people packed the courtroom to show their support for Dr. Afshar. Many of them are prior patients or family members of Dr. Afshar’s patients. Many others are fellow colleagues and friends from a local college where Dr. Afshar taught psychology. They all believed in his innocence and continued to believe in him and his cause, even after the jury verdict and sentence. We are very grateful to the “Supporters of Foad.” We are touched by their devotion to Dr. Afshar, and inspired by their belief that our justice system, although imperfect, will ultimately produce justice.
Read the Order granting a new trial: 2017-3-28-Afshar-CM Article Judge rules tosses sex assault conviction, grants new trial for former Concord therapist Foad Afshar
© 2019 Lothstein Guerriero, PLLC