An Oklahoma man who was arrested and jailed for allegedly raping a 4-year-old girl intends to sue authorities for holding for three months while he pleaded with them to perform a DNA test, which eventually cleared him.
Tommy Braden, 26, of Sapulpa, Okla., was arrested in April 2012 after he called 911 in the morning to report that he had woken up to find his girlfriend's daughter, age 4, bleeding on her bed. He also reported a broken window in their mobile home and blood on the front porch, Smolen told ABC News. Braden shared the home with his girlfriend, their biological child, and the 4-year-old.
According to Braden's attorney Don Smolen, Creek County Sheriff's officers arrested and charged Braden with the girl's rape. Officials took a swab of his DNA at the time, but refused to test the sample for a DNA match with the semen and pubic hair found at the scene of the crime.
"He was openly cooperating, doing everything he can to prove that it wasn't him," Smolen said. "They found pubic hair and semen at the scene that's never tested... It takes three months for them to get it done and only after the court orders them to do it... It's just crazy to me."
"Rarely do you have someone suspected of such horrific crime begging to give DNA. If you've got the opportunity where someone's voluntarily giving you sample, why not get it tested and confirm or deny whether it was him?" the lawyer asked.
The Creek County Sheriff's office did not respond to requests for comment from ABC.
"It was horrible, she was brutally raped," Smolen said. "And Tommy and Debra also have a child together, so it's not like you've got some random guy living in the house with the 4-year-old down the hall. This little girl has called him 'dad' since she was a year old. He and Debra are married now."
While he was in jail, Braden lost his job and the Oklahoma State Department of Health and Human Services took custody of the children, Smolen said.
Braden and his defense attorney finally won a ruling from a Creek County judge ordering the DNA test, which proved that Braden had not raped the girl.
Braden was released nearly three months after he was arrested, in July 2012. His record was expunged and both children are living with Braden and his girlfriend, Debra, again, though they are still under the state's supervision, Smolen said.
Police then arrested Braden's neighbor, Patrick Edward Misner, 28, and charged him with rape and molestation. He is awaiting trial in Oklahoma. His attorney did not return calls for comment.
Smolen notified Creek County this month that he was preparing a lawsuit against the county for Braden's imprisonment. The county has not yet responded, he said.