By NANCY WEST, InDepthNH.org

A man who was has been seeking a new trial in Grafton County Superior Court for more than a decade has filed a discretionary appeal to the state Supreme Court claiming the prosecutor withheld evidence when she told the jury that a key Lebanon police witness who testified against him didn’t have a history of discipline.

Scott Traudt, 53, of Strafford, Vt., has filed several unsuccessful appeals and a federal civil lawsuit trying to clear his name since he was convicted of disorderly conduct and assaulting Lebanon police officer Phillip Roberts, who is now deputy chief, during an altercation Jan. 14, 2007.

Traudt was a passenger in his then-wife’s car when she was pulled over for allegedly going through a red light.

An altercation ensued with Roberts and Richard Smolenski, who is now lieutenant bureau commander of the detective division, the only officers on the scene. Traudt was found not guilty of assaulting Smolenski, but spent 364 days in state prison for the Roberts assault.

Traudt’s lawyer Jared Bedrick’s filing said the case has broad public interest because it implicates the lack of transparency on the so-called “Laurie List” that is now the subject of a separate state Supreme Court appeal.

Attorney General Gordon MacDonald appealed the decision by Hillsborough County Court Judge Charles Temple ruling that the list, which includes the redacted names of about 260 sworn law enforcement officers who have sustained discipline in their personnel file, is a public record.

“This appeal highlights the dangers of concealing from defense counsel that a critical witness was subject to discipline in the past,” Bedrick wrote. “This is an issue that affects every defendant that comes before all New Hampshire courts.”

The core of the discretionary appeal:

“Is Mr. Traudt entitled to a new trial upon the discovery that the state supported the credibility of a key police witness by arguing to the jury – falsely that the witness lacked a history of discipline?”

Bedrick said the court should hear the matter because it is a case of first impression, although the court has ruled on similar issues.
“In many cases where the government secures a conviction by unfair means concerning the creditability of key witnesses, this court has reversed,” he wrote.

“Allowing the state to argue to the jury that a police witness should be believed because he has never been disciplined, when such is not the case, cuts through the principle supported by these cases: that the sanctity of the jury’s credibility determination is violated when it is radiated on bad information.”

Lebanon Police Chief Richard Mello said he would speak for Roberts and Smolenski, but added this case has been back and forth in the courts and there wasn’t much left to be said. “This seems to be endless,” Mello said.

Grafton County Attorney Martha Ann Hornick didn’t return a call seeking comment.

Traudt said he was convicted because the prosecutor lied.
“The New Hampshire Supreme Court needs to take a stand against gross prosecutorial misconduct, as this issue affects not just my case but potentially many others in the New Hampshire court system,” Traudt said.

Most recently, Judge Peter Bornstein, who presided over Traudt’s original trial, denied Traudt’s recent motion for a new trial on Aug. 9.

“The defendant has filed at least seven motions for a new trial as well as the motion for appointment of counsel…,” Bornstein wrote denying the motion.

Bedrick included that motion for a new trial with the Supreme Court filing saying that it was through the civil suit that Traudt discovered through redacted documents evidence that one or both officers had been disciplined.

“Even in their redacted form it is apparent that either Smolenski or Roberts had at least one sustained disciplinary action during his employment with the Lebanon police department that predated the trial at issue. Furthermore (Traudt) learned that claims of excessive force had been made against then-Lt. Roberts,” Bedrick wrote.

In his objection, Assistant Grafton County Attorney John Bell wrote that Traudt had known about the “newly discovered” evidence for years and had other hurdles to overcome.

Bell wrote: “The evidence alleged against Roberts fall short of a finding. The evidence against Smolenski cannot competently be established as pertaining to Smolenski,” Bell wrote.

Bell said Traudt must show that the evidence would be admissible and of such character that a different result would be probably result from a new trial.