By DAMIEN FISHER, InDepthNH.org
The lawyer for Richard Smolenski, the disgraced former Lebanon Police Lieutenant facing trial for stalking his ex-girlfriend, wants the case dismissed arguing nonviolent anonymous threats are protected speech under the First Amendment.
Smolenski, 45, was fired from the department soon after he was charged with a misdemeanor for stalking his ex-girlfriend Nicole Cremo in 2021.
The ex-cop who once served as the department’s prosecutor harassed Cremo through an extensive online campaign, even creating fake online accounts to keep harassing her, according to court records.
Anthony DiPadova, Smolenski’s lawyer, filed a motion to dismiss the charge based on the argument that the alleged harassment never rose to the level of criminal conduct. According to DiPadova, the law requires a stalker to create reasonable fear in the victim, something Smolenski never did.
“The allegations in this case do not even come close to alleging any communication that would ‘cause a reasonable person to fear for his or her personal safety,’” DiPadova wrote.
Smolenski never threatened direct violence, DiPadova argues. Instead, he is alleged to have sent Cremo threats to release embarrassing information and photos to her employers, including the fact she was having an affair with her boss. Cremo is an employee with the Grafton County Department of Corrections.
That kind of communication is not only not criminal, but it is lawful under the Constitution, according to DiPadova.
“The only allegation contained in the complaint is that (Smolenski) sent (Cremo) a series of anonymous messages threatening to release embarrassing photos and information about her.
“This is in no way a threat to her personal safety. A message sent which announces an intent to expose a person’s infidelity is already constitutionally protected speech,” DiPadova wrote.
DiPadova relies on the United States Supreme Court ruling in the 2023 Counterman vs Colorado case, which found the state must prove threatening statements were objectively threatening.
Assistant Belknap County Attorney Alexander Smeaton, who was brought in to prosecute the case in order to avoid a conflict of interest, counters that DiPadova is misconstruing the legal precedent in the Supreme Court ruling, and Smolenski should go to trial.
“The (Supreme) Court doesn’t make any substantive ruling about what sort of threats the state must allege, only that the defendant was reckless in disregarding their threatening nature,” Smeaton wrote in opposition.
Smolenski knew his alleged threats would alarm Cremo, and that is enough to put her in fear for her safety, according to Smeaton.
Lebanon District Court Judge Michael Garner is expected to rule on the motion in the coming weeks.
Smolenski, who is married, had an affair with Cremo which ended in 2020. After Smolenski’s wife found an intimate photo of Cremo in his email, he contacted Cremo and demanded she lie to his wife about their relationship, according to the original arrest affidavit.
When Cremo refused, Smolenski began sending messages demanding that she lie, or he would release intimate photos of her, according to the affidavit. Smolenski threatened to contact her family, her employers, and the Grafton County Commissioners if she did not comply. Cremo told investigators she feared Cremo, a veteran law enforcement officer who had also served in the military, according to the affidavit.
During his alleged campaign of harassment, Smolenski used multiple social media accounts to target Cremo, sometimes from the police department.
At one point he allegedly created an account using Senior Officer Paul Gifford’s identity in order to continue harassing Cremo on social media, according to the affidavit.
Smolenski and Gifford ended up suspended from the department for months before Smolenski was charged and Gifford cleared.
Grafton County officials spent $9,000 investigating Cremo after learning of the alleged affair between her and her supervisor in 2021. The report from that investigation has not been released.
This is not the first time Smolenski broke the rules as a police officer over an affair.
Smolenski was disciplined for having an extramarital affair with an 18-year-old woman while on duty and in uniform in 2006. He received a three-day suspension and six months probation for the affair and sexually inappropriate emails he sent while on duty. He had also gotten involved in a harassment case involving the teen, and ordered someone with whom she had a conflict to stop harassing her, according to court records.
That 2006 affair has resulted in at least one criminal conviction being overturned. This year, Grafton Superior Court Judge Peter Bornstein vacated the 2007 assault conviction of Scott Traudt, based on the fact the Lebanon Police Department and Grafton County Attorney’s Office hid Smolenski’s discipline record at trial. Smolenski was a key witness in the Traudt case.