SAPULPA - A Sapulpa man who was held in jail for 84 days before DNA evidence cleared him in the brutal rape of his then-girlfriend's 4-year-old daughter plans to sue the Creek County Sheriff's Office for wrongful arrest.
Tommy Braden's attorney, Don Smolen, of Tulsa, sent notice earlier this month that they plan to take legal action for wrongful arrest and detention, which they allege was the result of the Sheriff's Office negligence.
"From day one he's begging them to do a DNA test," Smolen said. "They said they weren't going to do that because it was a waste of taxpayers' dollars."
Braden was arrested shortly after the April 6, 2012, rape and was not released until a defense attorney, Lowell Howe, got a judge to approve a DNA test which cleared him on July 3.
The DNA evidence was a match for Patrick Edward Misner, a convicted felon who lived in the same mobile home park at the time.
"Three months later - after his life's gone to hell - the results he's been asking them to do comes up that he's not the guy," Smolen said. "Why wouldn't you do a DNA test? Even if it was him, why not do a test and confirm it? Why take three months?"
After the crime, Misner moved to the Portland, Ore., area and was arrested on an unrelated matter. He was eventually brought back to Creek County where he is being held on a $750,000 bond on charges of burglary, rape and lewd molestation. He has waived a preliminary hearing and is awaiting a trial date.
Records show Misner was convicted in 2009 of assault with a dangerous weapon in Tulsa County.
Smolen said investigators should have looked into who was living next to the little girl and should have pursued DNA testing immediately.
Records show the attack occurred in the middle of the night while the family was sleeping with the little girl at one end of the trailer and Braden, his girlfriend and their 2-year-old son at the other end.
Howe said the mother left early for work that morning and that it was Braden who found the little girl in bed naked and bleeding and called 911. Records show she was hospitalized.
According to an affidavit filed in the case, Braden noticed the little girl's bedroom window was broken and found blood on the front porch.
Investigators believe the front porch blood came from one of the family dogs that was found dead behind the residence and appeared to have been stabbed.
Howe said investigators thought the scene looked staged and didn't believe Braden was telling the truth. A lie detector test allegedly found him to be deceptive when questioned about the girl, he said.
Perhaps the main appearance of guilt came when investigators said the little girl identified Braden as her attacker.
Smolen said the 4-year-old made the statement after more than an hour of interrogation.
The girlfriend filed a protective order against Braden soon after her daughter's attack. The state Department of Human Services filed a case against the mother for failing to protect her daughter when Braden was still being held for the rape, Howe said.
Howe said the incident wrecked Braden and his girlfriend's relationship at first, but they reconciled and have since married.
Braden and Howe said DHS still hasn't dropped the deprived child case.
Braden said he and his wife did not know Misner or even recognize him.
"We had no place to live when I got out (of jail)," Braden said. "I wasn't allowed to be around. We had to go through counseling to get back together. I lost my job. I lost pretty much everything."
Braden said he was depressed while incarcerated, quit eating and dropped to 130 pounds from 190 pounds.
Smolen said the sheriff has 90 days to respond, and if not, they plan to file a civil rights lawsuit in federal court.
Current Creek County Sheriff John Davis said he couldn't comment because of the pending legal action.