NORTH HAVERHILL — 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 an undisclosed discipline record or 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 and disorderly conduct stemming from an altercation in January 2007 after Traudt’s then-wife was pulled over after allegedly running a red light in West Lebanon. 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 potentially include the so-called “Laurie List” of New Hampshire police officers whose misconduct raises credibility issues and whose names are required to be turned over to the defense if they are involved in a case.
Traudt was a passenger and claims he got out of the car to check on his then-wife while she was undergoing a field sobriety test after they had left a nightclub in West Lebanon. 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, who is now the deputy chief in Lebanon, in the head and body and slammed Smolenski to the ground. Both officers testified at his trial, where Traudt maintained he was defending himself.
Lebanon Police Chief Richard Mello defended his department on Wednesday and said previous court rulings have backed the Lebanon police.
“This issue has gone on for quite some time. It’s been adjudicated previously in both civil court and Grafton County superior court,” he said in a phone interview Wednesday. “The issues raised by Mr. Traudt in the most recent motion have been investigated, and I don’t believe his motion has merit.”
Lebanon currently has one officer on the Laurie List who works for the department. Mello said he has no questions about that officer’s ability to do his or her job. He has previously declined to divulge the officer’s name.
Bedrick’s motion asserted that affidavits that are part of 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 that, 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,” said Roberts, Smolenski, then-chief James Alexander and the city of Lebanon 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 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.”
Traudt’s federal lawsuit was dismissed in 2013.
It is not known which officers are on the state’s Laurie List, which contains 264 law enforcement names. Although a judge has ruled the list should be made public with the names, the Attorney General’s Office appealed that ruling to the New Hampshire Supreme Court, which hasn’t yet ruled.
Valley News staff writer Jordan Cuddemi contributed to this report. InDepthNH.org is a nonprofit news site published by the New Hampshire Center for Public Interest Journalism. Nancy West can be reached at nancywestnews@gmail.com.