By NANCY WEST, InDepthNH.org
A Strafford man has filed a motion seeking a new trial in a 2007 case claiming the two Lebanon police witnesses against him in Grafton Superior Court had undisclosed discipline or an excessive force complaint against them that would have impacted their credibility at trial and created a different outcome.
Scott Traudt, 53, was convicted of assaulting Lebanon police officer Phillip Roberts, who is now deputy chief, and disorderly conduct stemming from an altercation Jan. 14, 2007 after Traudt’s then-wife was pulled over for allegedly going through a red light. Traudt was found not guilty of assaulting Richard Smolenski, who is now lieutenant bureau commander of the detective division.
Traudt spent 364 days in state prison on the misdemeanor convictions despite having no previous criminal record. At the time, Traudt was working private security that took him to Iraq and Afghanistan. He is now working as a commercial fisherman out of Point Judith, R.I.
In the motion for a new trial filed Friday by Jared Bedrick of the Concord law firm Douglas, Leonard and Garvey, Traudt claims his rights to a fair trial were violated because the prosecutor told the jury that neither officer involved had disciplinary records.
That would include Laurie discipline, which is sustained police discipline involving dishonesty or excessive force that is constitutionally required to be turned over to the defense, including police wrongdoing.
Traudt was a passenger in the car that night when he claims he got out of the car to check on his then-wife while she was performing a field sobriety test. Bedrick said Traudt became embroiled in an altercation with Smolenski and Roberts, who said Traudt refused orders to get back in the car.
Police alleged Traudt punched Roberts in the head and body slammed Smolenski to the ground and they both testified at his trial, but Traudt maintained he was defending himself.
InDepthNH.org attempted on Tuesday to reach Roberts and Smolenski at Lebanon police department, but was told only Chief Richard Mello can discuss the matter and he is unavailable until Friday.
Bedrick’s motion said affidavits filed in a federal civil suit Traudt filed against Lebanon police revealed the state’s representations about Smolenski’s and Roberts’ records were untrue.
“Even in their redacted form, it is apparent that either Roberts or Smolenski had at least one sustained disciplinary finding during his employment with the Lebanon Police Department that predated the trial at issue,” Bedrick wrote. “Furthermore he learned that claims of excessive force had been made against then-Lieutenant Roberts.”
Traudt deserves a new trial for two reasons, both based on the state’s closing argument at trial, Bedrick said.
“First when the state invited the jury to believe that the lead witnesses were free from disciplinary history and complaints based on a lack of evidence presented to the contrary – later confirming the same by stating affirmatively that the officers ‘had no history of misconduct,’ it asked the jury to draw an inference that was plainly false,” Bedrick wrote.
Bedrick said the police records law requires that the duty to disclose exculpatory evidence – or evidence that is favorable to the defendant – that should have been disclosed prior to trial extends beyond a finding of guilt.
“Here the state collectively gained and exploited an unfair advantage in a credibility contest. Were the parties all apprised of Roberts’ and Smolenski’s histories of complaints and discipline the jury would have been able to render a fair verdict, which Mr. Traudt believes would have been different from that rendered at trial,” Bedrick wrote.
Bedrick cited a federal complaint stating in July 2001 Roberts, who was then working for Springfield, Vt., police, was accused of wrongfully pointing a gun at a person’s head, among other things.
“According to public court records it appears that either Smolenski or Roberts was the subject of a disciplinary hearing with the Lebanon police in 2006,” Bedrick wrote.
In the federal civil lawsuit, Lebanon police asked the judge in 2013 to review material that had been expunged from an unnamed police officer’s disciplinary file.
“In 2010, pursuant to the Union collective bargaining agreement the disciplinary material was expunged from the officer’s personnel file,” the motion said. It was then kept in a confidential file by the Lebanon Police Department.
“(Traudt) is under the mistaken belief that such information constitutes exculpatory evidence, i.e. Laurie material, that should have been produced to him before his criminal trial in 2008. Plaintiff also wants to introduce the expunged material in this civil case,” Roberts, Smolenski, then chief James Alexander and the city of Lebanon filed in a motion for in-camera review of expunged personnel information.
They asked the judge to review the expunged record and determine that it wasn’t Laurie material and wasn’t relevant or admissible in the civil case.
The motion said in 2006 an internal affairs investigation was completed on an unnamed officer but that Chief of Police James Alexander and Interim Chief of Police Gary Smith determined at that time “and continue to believe that the officer’s conduct did not constitute a Laurie offense and the personnel information did not require disclosure under Laurie” and the officer had no further disciplinary issues during his career.
The motion went on to complain that Traudt had been able to find out “certain confidential and privileged personnel information regarding this matter from undisclosed sources.” It appears that Traudt notified criminal defense counsel in the area and Grafton County prosecutor’s office that the officers and others have Laurie issues, the motion said.
Traudt’s federal lawsuit was dismissed in 2013.
It is not known which officers are on the state’s Laurie list of dishonest police that contains 264 redacted law enforcement names. Although a judge ruled the list should be made public with the names, the Attorney General’s Office appealed that ruling to the state Supreme Court, which hasn’t yet ruled.