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Jim Kenyon: Man argues something’s rotten with the cops who accused him

Valley News Columnist
Published: 11/12/2022 11:10:50 PM
Modified: 11/12/2022 11:10:48 PM

When a criminal defendant files an appeal after losing a jury trial, the prosecutor will often argue that since the people have already spoken, the case should be considered over.

As the legal expression goes, the losing side only gets “one bite at the apple.”

Fourteen years after getting his “one bite,” Scott Traudt returned to Grafton County Superior Court on Nov. 4, seeking a retrial in the case that sent him to state prison for a year after a jury found him guilty of assaulting a Lebanon police officer in 2007.

Traudt’s argument?

The Lebanon cops who arrested him were bad apples.

For years, Traudt, 57, has tried without much success to make a case in state and federal courts that he was a victim of police misconduct.

This is likely his final — and best — chance at correcting what he claims was a grave injustice. “For me, this entire almost 16-year process (since the incident) has been about firing a shot across the bows of the bad cops out there,” he told me via email.

Here’s some background:

On Jan. 14, 2007, Traudt and his then-wife were pulled over after leaving the now-defunct Electra Nightclub in West Lebanon. Police alleged that she had run a red light.

While officer Phil Roberts, who is now Lebanon’s police chief, was giving her a field sobriety test, Scott Traudt got out of the car. (A judge later threw out charges of driving while intoxicated and a red light violation lodged against Traudt’s former wife.)

The traffic stop occurred before Lebanon police cruisers were equipped with dashboard cameras, putting what happened next in dispute.

Police said Scott Traudt punched Roberts in the head and body-slammed officer Richard Smolenski to the ground. Traudt claimed he was acting in self-defense during the altercation in which he was clubbed with a nightstick and blasted with pepper spray.

The jury acquitted Traudt, who lives in Strafford, of assaulting Smolenski. He was found guilty, however, of disorderly conduct and simple assault against Roberts. Judge Peter Bornstein sentenced Traudt, who had no criminal record, to one to three years in state prison.

How did Traudt, a commercial fisherman, manage to get back into Bornstein’s court after all these years?

In May 2020, the New Hampshire Supreme Court ruled information about alleged police misconduct was no longer automatically exempt from the state’s right-to-know law.

After years of stonewalling Traudt, Lebanon officials had no choice but to turn over Smolenski’s file locked up inside City Hall.

Just as Traudt had suspected, the city was hiding something. It turns out that Smolenski had a “credibility problem,” said Mark Sisti, a longtime New Hampshire criminal defense attorney who represented Traudt in the 2008 trial and testified on his behalf at the Nov. 4 hearing.

By law, prosecutors must tell anyone accused of a crime about all evidence, including disciplinary records of police officers, that might help their case.

City records showed Smolenski was suspended for three days in March 2006 — 2½ years before Traudt’s trial — for conduct unbecoming an officer. Smolenski had “engaged in a romantic relationship with a young woman while in uniform,” Traudt’s current attorney, Jared Bedrick, of Portsmouth, said at the hearing.

In his testimony, Sisti repeated what he told the jury in 2008. He argued Traudt acted in self-defense against “renegade police officers who were out of control.”

Last week, I asked Roberts about Sisti’s comments. Sisti has “no basis for saying that” about him, the chief argued. In his nearly 25-year law enforcement career, Roberts said, he’s had “no disciplinary action against him.”

Without video evidence, the “entire case rested on testimony,” Sisti said. The information about Smolenski’s suspension would have “fit beautifully with what we were presenting,” he added.

Grafton County Attorney Marcie Hornick argued that even if the defense had known about Smolenksi’s suspension, “there’s nothing to say it would have been admissible at trial.”

The jury simply “didn’t buy” Traudt’s account of events, said Hornick, a former public defender who was elected county attorney for the first time in 2018.

Traudt’s defense took a hit when Nancy Gray, an assistant county attorney who tried the case, talked to the jury in her closing argument about the “spotless records of the officers,” Bedrick said.

Which in the case of Smolenski was far from accurate. “Police had a duty to tell Gray, and Gray has a responsibility to tell the defense,” Bedrick said.

It’s unclear whether Gray knew about Smolenski’s suspension. Bedrick told me that he couldn’t locate Gray, who retired several years ago, before the hearing. My online search came up empty as well.

Having written numerous times about Traudt’s one-man effort (In 2018, I called it a crusade) against Lebanon police, I’ve sometimes wondered why he can’t let go. Most people would have moved on by now.

But that’s easy for me to say. Traudt is the one who spent a year behind bars and got saddled with a criminal record.

After sitting in the gallery at the hearing, I have no idea how Bornstein will rule. But if the judge sides with Traudt, the Grafton County Attorney’s Office will have to think hard about dropping the matter rather than pursue a second trial.

Smolenski, a Lebanon cop for 18 years, was fired last year, after being charged with stalking a woman he’d previously had a romantic relationship with. Smolenski, who has pleaded not guilty to the misdemeanor, is scheduled for trial in March.

Regardless of the outcome, putting Smolenski on the witness stand in another Traudt trial would certainly lead the defense to question his credibility.

Or put another way, his testimony might upset the apple cart.

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


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