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Jim Kenyon: Long road to reversal for man convicted of assaulting Lebanon cops

Valley News Columnist
Published: 1/14/2023 6:15:18 PM
Modified: 1/14/2023 6:12:03 PM

After more than 14 years of legal wrangling to erase his conviction for assaulting a Lebanon police officer during a late-night traffic stop, Scott Traudt can finally claim victory.

In an 18-page ruling released Jan. 3, Grafton County Superior Court Judge Peter Bornstein vacated a jury’s verdict from Traudt’s 2008 trial.

But the 57-year-old Traudt seems far from satisfied. When I sat down with him at a West Lebanon pizza place last week, he was in no mood to forgive and forget.

Since his arrest on Route 12A in January 2007, he’s been “playing defense,” Traudt said. “Now I’m playing offense.”

Who can blame him for not letting go?

Traudt spent a year behind bars at the Northern New Hampshire Correctional Facility in Berlin — 120 miles from his home in Strafford — that he can never get back. That loss of freedom alone is enough to give a person reason to continue the fight.

“As much as I’ve been beaten down, the system works,” Traudt said. “You just can’t quit. Cops and prosecutors have the power to destroy someone’s life and must be held accountable.”

In his ruling, Bornstein did more than wipe out Traudt’s criminal record. The judge all but called Traudt’s case a miscarriage of justice.

It’s “undisputed” that either the Grafton County Attorney’s Office or the Lebanon Police Department “knowingly withheld evidence” that would have aided Traudt’s defense, Bornstein wrote.

By law, the government must inform anyone accused of a crime about exculpatory evidence that could be used to impeach a police officer’s testimony or challenge a prosecutor’s statements.

Traudt and his trial attorney weren’t told that then-Lebanon police Cpl. Richard Smolenski had been suspended for three days and placed on a six-month probation following an internal investigation in 2006 — a year before Traudt’s arrest.

The investigation found that during an extramarital affair with an 18-year-old woman, Smolenski had “used his position” as a police officer to help the woman by “contacting an individual with whom she had had a conflict and ordered the individual to stop harassing her,” Bornstein wrote.

Why was failing to disclose the information a big deal?

With no video record of the roadside encounter, the case hinged largely on the testimony of Smolenski and then-Sgt. Phil Roberts. The jury found Traudt not guilty of simple assault against Smolenski, but convicted him of assaulting Roberts.

Nancy Gray, an assistant county attorney, made a point of telling the jury in her closing argument about the “spotless records of the officers.”

Traudt’s trial attorney Mark Sisti countered that his client had acted in self-defense against “renegade police officers who were out of control.”

(In an interview, Roberts, now the city’s police chief, vehemently disagreed with the characterization of him, which was repeated at a court hearing in November. Sisti, a longtime criminal defense lawyer, had “no basis for saying that,” Roberts told me. In his 25-year law enforcement career, Roberts said he’s had “no disciplinary action against him.”)

It’s still unclear who decided to keep Smolenski’s disciplinary record a secret. Was it the county attorney’s office? Was it Lebanon police or someone else higher up in city government?

Gray retired several years ago. Jared Bedrick, a Portsmouth attorney who now represents Traudt, said attempts to locate Gray have proved unsuccessful.

It’s almost certain Smolenski’s disciplinary history wouldn’t have become public if not for the state Supreme Court. In May 2020, the court ruled in another case that internal investigations into alleged police misconduct were no longer automatically exempt from the state’s right-to-know law.

Still it took the city more than a year to turn over the investigative report, which “opened the door” for him to return to court in November, Traudt said.

What’s next?

Grafton County Attorney Marcie Hornick has until Tuesday to refile charges. I can’t think of a good reason why she would — unless she’s trying to curry favor with cops. Hornick, a former public defender, doesn’t have a dog in the fight. She wasn’t elected county attorney until 2018. I emailed Hornick last week to ask about her intentions, but didn’t hear back.

Regardless of what Hornick decides, Traudt plans to return to court to get Lebanon police and Hornick’s office to turn over the names of people who Smolenski arrested or testified against after he was disciplined.

“How many others have had the same thing happen to them that happened to me?” Traudt asked.

Smolenski, a Lebanon police officer for 18 years, was fired in 2021 after being charged with stalking a woman he’d previously had a romantic relationship with. He’s pleaded not guilty to the misdemeanor and is scheduled for trial in March.

I’d lay strong odds that Traudt, who works as a commercial fisherman, will end up suing the city for malicious prosecution under a federal civil rights law.

A doctrine known as qualified immunity shields police misconduct from lawsuits, making the cases very difficult to win. Anyone who claims police violated their constitutional rights must show “clearly unreasonable conduct,” Norwich attorney Wayne Young explained to me.

In 2017, Young and a California law firm earned a $625,000 settlement for a Windsor man who was falsely accused by town police of sexually abusing his learning-disabled grandson.

At first glance, it appears Traudt has Lebanon on the ropes. “Spending a year in prison would give you grounds for arguing pain and suffering,” said Young, who isn’t involved in Traudt’s case. “It’s quantifiable.”

Unless I’m missing something, the city — or at least its insurance company — will eventually be getting out its checkbook.

When the government doesn’t play by the rule of law, as was the case here, we all pay.

Jim Kenyon can be reached at jkenyon@vnews.com.


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