By DAMIEN FISHER, InDepthNH.org
The New Hampshire Attorney General’s Office won’t investigate a former police chief or a county prosecutor for allegedly hiding exculpatory evidence in a case that landed a man in jail for one year.
“They did nothing,” said Scott Traudt, a Strafford, Vt. man who has been fighting for years to clear his name.
Traudt filed a complaint with Attorney General John Formella’s Office in February, soon after his 16-year-old conviction for assaulting a police officer was thrown out because of the hidden evidence, and the fact it was hidden by state authorities, had come to light.
Traudt’s complaint was referred to the Attorney General’s Public Integrity Unit, where it seems it was sent to die.
Assistant Attorney General Joe Fincham sent Traudt a letter this week, informing him that after not conducting an investigation into the complaint, it was decided there would likely be no evidence found.
“After a review of this information available in this matter, the PIU has concluded there is no reasonable suspicion to believe that further investigation will lead to probable cause that a crime occurred,” Fincham wrote.
Much of the information available in the case has come out due to Traudt’s persistence proving that he was wronged by police and the state. His efforts culminated in Judge Peter Bornstein’s January ruling that vacated the conviction.
Bornstein found that the state did in fact hide evidence of former Lebanon Police Officer Richard Smolenski’s prior misconduct.
“First it is undisputed the state, either by the prosecutor or by the Lebanon Police Department, knowingly withheld evidence of Smolenski’s investigation from the defendant,” Bornstein wrote.
Smolenski was one of the Lebanon officers who arrested Traudt in 2007, and one of the witnesses at the 2008 trial that resulted in Traudt going to jail for a year.
The case against Traudt rested exclusively on the testimony and therefore the credibility and reliability of Smolenski and Officer Phil Roberts who were the only witnesses present during the physical altercation who could testify at trial about the charges, according to Bornstein’s ruling.
Smolenski’s credibility as a witness was so key to the prosecution of the case, that during the closing arguments at the trial, then Grafton County prosecutor Nancy Gray told jurors there was “absolutely no evidence of any disciplinary mark on (Smolenski’s) record, no evidence of any prior complaint.”
In state v Laurie in 1995, the state Supreme Court concluded that prosecutors’ failure to disclose the troubled employment history of a testifying police officer violated the defendant’s right to a fair trial in a murder case. The court overturned the conviction.
Traudt has maintained he was defending himself during the incident. Roberts is now the chief of the Lebanon police department.
According to court records, either Gray or former Lebanon Police Chief James Alexander hid the fact that in the months before Traudt’s arrest Smolenski was disciplined by his own department for carrying on an extramarital affair with an 18-year-old woman while he was on duty for the department.
Michael Garrity, communications director for the New Hampshire Attorney General’s Office, said Wednesday that the information hidden from Traudt during his trial would not have been admissible, and that Bornstein had found Gray was likely unaware of Smolenski’s record.
“Judge Bornstein’s Order makes it clear that this matter had previously been disclosed to the Grafton County Superior Court in another case, which ruled that the material at issue was non-discoverable. Judge Bornstein’s Order also makes clear that but for the prosecutor’s statements during closing argument, this material would have likely also been non-discoverable in Mr. Traudt’s case. Further, Judge Bornstein found that the existence of this material was ‘[u]nbeknownst to the parties,’ including the prosecutor in the case. Therefore, there is no evidence that the prosecutor’s misstatement about the non-existence of the material at issue was intentional,” Garrity wrote in an email to InDepthNH.org.
Smolenski was fired from the department in 2021 after he was charged with stalking an ex-girlfriend, also while on duty for Lebanon. The trial on that charge is pending in Lebanon District Court.