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Scott Traudt

Other New Hampshire Exonerations
A few minutes after midnight on January 14, 2007, Scott Traudt and his then-wife, Victoria Traudt, were heading home from a bar in Lebanon, New Hampshire. Victoria was driving when Sergeant Phillip Roberts pulled her over for an alleged failure to properly stop at a red light.

During the stop, Roberts asked Victoria Traudt for her license and registration. At first, she could only find her license, and she handed the document to Roberts, who went back to his cruiser. Then, she found the registration, got out of her car, walked over to Roberts, and gave it to him.

Roberts asked Victoria whether she had been drinking. She said yes. Roberts then asked her to perform a field-sobriety test, and he called another officer, Corporal Richard Smolenski, for assistance.

First, Victoria walked backwards toward her car. Then, Roberts asked her to do a “walk and turn” test. The road was slippery, and Victoria asked if she could take off her high-heeled boots. Roberts agreed.

Scott Traudt watched the events and got out of the car to see what was going on. Smolenski told him to get back in the car. He didn’t. The situation quickly escalated as the officers subdued Traudt. They said he hit them. He said they tackled him and left him with severe injuries. Traudt was arrested and charged with two counts of simple assault and one count of disorderly conduct. One assault charge alleged Traudt had body-slammed Smolenski; the other said he had hit Roberts in the head.

Scott Traudt’s jury trial in Grafton County Superior Court began on October 20, 2008. There was no physical or forensic evidence. Nor was there any video recording of the police stop and subsequent events.

Smolenski and Roberts each testified about the incident, stating that Traudt was belligerent and would not obey orders. Roberts testified that Traudt hit him in the head. Traudt testified that the officers instigated the attack, then lied to cover up their misdeeds. He had merely defended himself and exercised his rights to observe what was happening to his wife.

During his testimony, Traudt was asked if he could have inadvertently struck Roberts. He said: “When I was on the ground—when they were punching me while I was on the ground and they landed on top of me and I was trying to protect my head, maybe there was inadvertent contact. I was always trying to protect myself but I never—not the way he described it. There’s no way. I didn’t do that.”

During cross-examination, the prosecutor attempted to establish that Traudt was fighting the charges as the first step in suing the city of Lebanon. She asked him about previous lawsuits he had filed against employers when he worked as a commercial fisherman. Traudt’s attorney objected, and Judge Peter Bornstein sustained the objection. Later, the prosecutor asked Traudt about his more recent work as a paramilitary contractor working in Iraq, trying to draw a comparison between Traudt and the Blackwater scandal a year earlier. “It’s operated for profit, not for patriotism, right?” she asked. Traudt’s attorney didn’t object.

In closing arguments, the prosecutor said: “Is Scott Traudt a want-to-be military—officer? He’s in the paramilitary. He was working for a paramilitary concern. It was a private security firm. It went to Iraq, went to Afghanistan, similar to Blackwater. But he didn’t have the same discipline and training that he would have had in the military. He didn’t have those constraints. He was freer to do what he wanted to do and wasn't being held as accountable.”

In her closing, the prosecutor attacked Traudt’s case, telling jurors that he had not “proven his innocence,” or presented evidence that supported other testimony. Traudt’s attorney objected, telling Judge Bornstein that the burden of proof rested with the state. Judge Bornstein agreed and cautioned the jury about these remarks.

Judge Bornstein gave the jury instructions on a self-defense claim that said Traudt had to have knowingly struck Roberts. During closing arguments, Traudt’s attorney said: “The Judge told you, you can use self-defense as a defense here, and it does apply in this case. Just in case, just in case, I’m giving the benefit of the doubt here, you know, to [Roberts], but I hate doing it, but if [Traudt] hit him somehow when he was protecting himself from being beaten, that covers it, okay?”

The state emphasized the credibility of the two officers. A prosecutor said, “There’s been absolutely no evidence of any kind of a disciplinary mark on [Roberts’s] record” and “absolutely no evidence of any disciplinary mark on [Smolenski’s] record, no evidence of any prior complaint.”

The jury convicted Traudt of simple assault on Roberts and disorderly conduct, both misdemeanors, on October 22, 2008. Because Roberts was a police officer, the assault conviction carried a sentencing enhancement, and Judge Bornstein sentenced Traudt to one to three years in prison.

Although Traudt was released after a year, he continued to appeal his conviction, filing a series of motions for a new trial. Traudt’s fourth motion, filed in 2011, claimed his trial attorney was ineffective and had undermined Traudt’s defense by acknowledging the possibility of inadvertent contact with Roberts, which Traudt said signaled to the jury that the attorney did not believe Traudt.

The Supreme Court of New Hampshire affirmed the conviction on May 17, 2012. It wrote: “We agree with the trial court: ‘[T]rial counsel adequately finessed any potential contradiction between the self-defense claim and the defendant's testimony so as to reconcile them.’”

Separately, Traudt filed a pro se lawsuit in U.S. District Court for the District of New Hampshire in 2010 against Roberts, Smolenski, and the City of Lebanon, seeking damages for injuries he said he received in the incident and for the officers violating his civil rights.

A federal judge dismissed the lawsuit on July 12, 2013. During the discovery phase of the litigation, Traudt learned that Smolenski had been disciplined by the Lebanon Police Department in 2006, although the details of his misconduct weren’t provided.

That information had not been disclosed to Traudt’s attorney.

On May 16, 2013, Traudt filed a pro se petition for a writ of habeas corpus, citing the state’s failure to disclose this evidence as one of several claims. Traudt said his trial attorney had been ineffective by failing to use a video from the processing center at the police station. On the video, Roberts appeared to give Smolenski guidance on how to write his report, saying “My intention is that we all say he did this …”

Traudt said the attorney also told jurors in his opening that they would see evidence of the injuries Traudt received. But those records were not produced, and no experts testified on the injuries.

Traudt said in his petition that Roberts had been untruthful when he testified at Traudt’s sentencing hearing that he had “concussion like injuries.” In a document related to the civil litigation, Roberts denied ever having a concussion.

A federal judge denied Traudt’s habeas petition on March 24, 2014, ruling that Traudt lacked standing because he was no longer in prison.

In 2019, Traudt moved for a new trial in Grafton County Superior Court, again arguing that the state’s failure to disclose Smolenski’s disciplinary record violated his right to a fair trial.

Traudt’s claim was hamstrung because he still didn’t know the details of the officer’s misconduct. Judge Bornstein denied his motion, and the Supreme Court of New Hampshire affirmed the ruling on January 26, 2021, agreeing that Traudt had waited too long to file the motion. The ruling did not address Traudt’s disclosure claim.

In 2020, a ruling by the Supreme Court of New Hampshire allowed the disclosure of police personnel records under certain circumstances.

In 2021, Traudt received details of Smolenski’s disciplinary records, which showed that the officer received a three-day suspension and six months on probation for misconduct related to his extramarital affair with an 18-year-old woman.

In April 2022, attorney Jared Bedrick filed a petition for a writ of error coram nobis in April 2022, asking the court to correct a fundamental error in Traudt’s conviction.

On January 3, 2023, Judge Bornstein vacated Traudt’s conviction and granted him a new trial, based on the state’s failure to disclose. “At the very least, the information should have been disclosed to the defendant because, given that his theory of the case was that the officers involved were renegade police officers and were not credible, the evidence of Smolenski’s investigation and discipline would have been relevant to that defense or otherwise used as impeachment evidence,” Bornstein wrote.

The state dismissed the charges on March 2, 2023.

After the ruling granting him a new trial, Traudt, who now lives in Vermont, told a columnist for the Valley News, “As much as I’ve been beaten down, the system works,” Traudt said. “You just can’t quit. Cops and prosecutors have the power to destroy someone’s life and must be held accountable.”

– Ken Otterbourg

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Posting Date: 3/25/2023
Last Updated: 3/25/2023
State:New Hampshire
Most Serious Crime:Other Violent Misdemeanor
Additional Convictions:Misdemeanor
Reported Crime Date:2007
Sentence:1 to 3 years
Age at the date of reported crime:41
Contributing Factors:Perjury or False Accusation, Official Misconduct, Inadequate Legal Defense
Did DNA evidence contribute to the exoneration?:No