GRAND JUNCTION, Colo. (CBS4) – A Grand Junction man convicted of sexually molesting six young boys and girls has been set free, the Mesa County District Attorney’s Office confirmed.

After multiple delays and continuances, Michael Tracy McFadden was convicted of nineteen counts and was sentenced to more than 300 years in prison in 2015, Mesa County District Attorney Dan Rubinstein said.

michael mcfadden from krex Man Sentenced To Over 300 Years For Child Sex Crimes Freed On Technicality

Michael McFadden (credit: KREX)

McFadden appealed his conviction, claiming that pre-trial delays in his original trial violated Colorado’s speedy trial statutes, KREX reported.

Rubinstein provided more details in a statement posted on Facebook.

“The defendant was charged with sexually assaulting six children and being a habitual sex offender against children. The trials of all of these victims were consolidated.  On two previous occasions, the defense asked for a continuance and waived his right to a speedy trial in order to secure the continuance,” Rubinstein explained.

“Prior to the third trial date, there was a jury questionnaire which was drafted by the defense which referenced Mr. McFadden’s prior offense, which both parties were comfortable with, given the court’s ruling that the facts of the prior offense were going to be admissible,” Rubinstein stated. “After the questionnaire had been passed out to the jury, the judge noticed the reference to the prior offense, admitted he had not read the questionnaire and a discussion ensued about whether the defendant could receive a fair trial with the reference.”

“Ultimately the court found that the defense was, in part, at fault for the jury hearing this information, and said that the court of appeals would find it to be plain error to move forward with this jury pool,” Rubinstein stated. “The judge granted a continuance of the trial, over the objection of the defense, finding that the defense’s role in this situation waives his statutory right to his case being tried within 6 months, and reset the case for trial.”

After going on trial and being convicted in 2015, McFadden appealed.

“The court of appeals found that the trial court erred in determining that a continuance was required, disagreed that the delay was chargeable to the defense and therefore violated the defendant’s speedy trial rights.  This was found despite the trial court continuing the case to protect the defendant’s Constitutional rights to a fair trial,” Rubinstein explained.

This past June, the Colorado Court of Appeals threw out his conviction, also ruling he could not be retried.

The Mesa County District Attorney’s Office appealed to the Colorado Supreme Court, but the high court decided not to hear the appeal, upholding the lower court’s ruling.

Because of that, McFadden was released from the Arkansas Valley Correctional Facility on Tuesday.

Rubinstein told KREX 5 News that McFadden does not even have to register as a sex offender.

He called the case a “travesty of justice.”

“The court of appeals found that the trial court erred in determining that a continuance was required, disagreed that the delay was chargeable to the defense and therefore violated the defendant’s speedy trial rights,” Rubinstein stated  on Facebook. “This was found despite the trial court continuing the case to protect the defendant’s Constitutional rights to a fair trial.  The court of appeals vacated the convictions.  Here, because the trial court felt this was necessary, it got delayed.  However, because the court of appeals thinks the trial court was wrong, even though the defendant had waived his speedy trial rights in the past, found this statutory violation results in a dismissal.”

“I think it is important for the community to know what occurred so that they can take action at the next election of court of appeals judges Jones, Graham and Welling,” Rubinstein stated. “The court of appeals blames both the trial judge and the legislature, but in my opinion, the court of appeals got this one wrong.”

 

 

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