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A Seminole Moment

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"That was the first time I thought, 'Wow, something's not right here,'" Penalta says.

The assistant state attorney prosecuting Thomas, David Braun, shared with Penalta all the evidence provided to him by the Seminole Police, which included a witness list and police reports. But the material did not include surveillance video, and Braun's office does not allow him to comment to the media on pending cases.

Penalta says that after he took Thomas' case, he walked the grounds outside Murphy's Law where the incident occurred and saw video cameras, leading him to believe video footage exists. Penalta suspects that the Seminole Police are not providing it because it tells a story different from the one in the officer's report. "If they [the Seminole Police] are hiding exculpatory videotapes — and I know in my gut that there's videotape there — and the reason that they're not showing videotape is because of the facts that are going to come out at trial, they're supposed to provide that."

Seminole Police spokesman Capt. Aaron Wright says that in 2006, there were no video cameras overlooking the site of the arrest. Wright bridles at the suggestion that his department would withhold evidence. "How would we get any cases prosecuted if we didn't give [state attorneys] everything they need to prosecute the case?" Wright asks. "That makes no sense."

His department follows the same state laws as any other Florida police department, Wright says.

True, but since the Seminole Police Department is not subject to Florida Government-in-the-Sunshine statutes, as every other Florida police department is, the public has no method for monitoring the agency's inner workings.

To this, Wright points out that all 151 Seminole Police officers are trained, certified, and subject to the investigations of the Florida Department of Law Enforcement, which can penalize Seminole officers found to be violating state law.

"We have to turn over the evidence," Wright says. "Our officers — if they do not — they go in front of the Florida Department of Law Enforcement, and if they're in violation, their certification is pulled. And I'm not going to risk my certification for anybody."

When the FDLE receives a complaint about an officer's conduct, FDLE spokeswoman Heather Smith says, the agency's first step is to forward the complaint back to the department that employs the officer. The FDLE considers penalizing the officer only if that department's Internal Affairs investigation finds the officer to be in violation, Smith adds.

Again, the difference is that, while with other police departments the Internal Affairs process is open to the public, the process with the Seminole Police Department is off-limits to the public.

To Penalta, it sounds like the Seminole Police Department is asking U.S. courts simply to trust its law processes while giving none of the same guarantees against internal corruption that exist outside of the Seminole reservation.

"Human nature is to protect one's self," Penalta says. "So if it's going to cause a loss to your organization, you'll try to protect it." The Seminoles may be operating under their own honor code, he adds, "but you have to be able to verify it through a system of checks and balances."

In his research, Penalta says he's found no precedent for a case like Thomas'. Indeed, it would seem that in most instances, a defense attorney would get full disclosure of the evidence simply because the Seminole Police made a legitimate arrest and would have no reason to hold back information. But in cases where there may be exculpatory evidence, a defense attorney could have no way of knowing that it exists and might assume that he has received all the relevant information.

Many defendants in Thomas' position, facing the costs and stresses of a criminal prosecution, might be inclined to negotiate a plea deal, admitting guilt in exchange for having the charges reduced. In those cases, the Seminole Police would not be challenged.

Thomas' case is different because of his certitude that there must be video evidence, the exclusion of which suggests to him that it would help his case and hurt the prosecution. Further, Thomas is refusing to negotiate a plea deal, not just because he believes in his case but because even a misdemeanor conviction would likely ruin his military career.

The experience, Thomas says, has been "terrifying." He spent 12 hours in a Broward County jail cell. He had panic attacks. "I realized that everything was over," Thomas says, meaning his military career. "It was something that happened so quickly... It was gone, and I couldn't do a thing about it."

Penalta is currently preparing a motion to dismiss in which he will argue to the court that he hasn't received all the evidence related to the case. If he wins that particular point, it would likely lead the judge to dismiss the case.

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Thomas Francis

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