In court on Monday, a man who was originally sentenced to more than three centuries in prison pleaded not guilty to charges related to failing to register as a sex offender.
Michael McFadden, freed on a technicality from a more than 300-year prison sentence was put back behind bars in El Paso County.
McFadden made national headlines earlier this year when he was released from the Arkansas Valley Correctional Facility in Ordway in February. He had been convicted of sexually assaulting half a dozen children. His latest conviction was tossed out because of issues in the jury selection process that resulted in a delayed trial. According to the Colorado Department of Corrections, the minimum sentence he would have faced was 316 years.
McFadden appealed his 2015 conviction, claiming pre-trial delays violated state laws for a speedy trial. In June 2017, the Colorado Court of Appeals ruled in his favor and threw out his conviction.
The Colorado Supreme Court decided on Feb. 12 not to hear the appeal, meaning the lower courts ruling which did not allow the case to be re-tried, would stand.
Authorities learned soon after he was released he still had to register as a sex offender for a prior sexual assault on a child sentence in 1990. An arrest warrant was issued. He was arrested at the El Paso County Department of Human Services about a week after he was released from prison.
When McFadden was released, it sparked outrage across the state. The district attorney for the 21st Judicial District in Mesa County didn't hold back on his opinion of the judges who overturned the latest conviction.
"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," District Attorney Dan Rubinstein said in a statement sent to 11 News. "The court of appeals blames both the trial judge and the legislature, but in my opinion, the court of appeals got this one wrong. I have already been in touch with Sen. Ray Scott, Rep. Dan Thurlow, and Rep. Yeulin Willett to change the statute, even though I still believe that they could have affirmed the conviction without the change."
Rubinstein told 11 News work had already begun on drafting a bill to help prevent this incident from happening in the future.
A woman who said she alerted authorities years ago about McFadden's alleged crimes against children told KKCO she believed he was in Colorado Springs. She had heard he was living in homeless shelters trying to raise money for a bus ticket to Florida. Several other people reached out to 11 News with the same information soon after his release.
"The [victims] were promised if they were told everything that happened they would be safe," the woman told KKCO, speaking anonymously. "He [McFadden] had told them, if you tell what I did, I will kill you."
The woman is hoping for justice and even wants the governor to get involved. She isn't the only one who talked to KKCO. One of the alleged victims also came forward to speak.
"It feels terrible because it can happen to a bunch of other kids, we tried our hardest to get him in [prison], and to help other kids to not get hurt and abused like we did," said a victim.
District Attorney Rubinstein sent the following statement to 11 News just before McFadden was arrested in Colorado Springs:
"While there has been some news coverage on the travesty of justice that occurred with the release of Michael McFadden, 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. The court of appeals blames both the trial judge and the legislature, but in my opinion, the court of appeals got this one wrong. I have already been in touch with Sen. Ray Scott, Rep. Dan Thurlow, and Rep. Yeulin Willett to change the statute, even though I still believe that they could have affirmed the conviction without the change.
The defendant was charged with sexually assaulting 6 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. 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.
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. 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.
Due to the great work of the DA on the case, at the next trial date, Mr. McFadden was convicted of nineteen counts as well as being adjudged a habitual sex offender, and was sentenced to more than 300 years in prison.
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. 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. They acknowledged in the opinion that prior precedent exists to override statutory violations to protect constitutional rights. Despite that, they chose not to extend that precedent here, and blamed the legislature for the rigid rule.
I disagree with the ruling by the court of appeals. The Attorney General's Office, who handles criminal appeals in Colorado on our behalf, petitioned for a writ of certiorari to the Colorado Supreme Court, as I believe that the court's precedent in People v. Jefferson, 981 P.2d 613 (Colo. App. 1998) which found that "under certain circumstances, the six month speedy trial time frame will be extended where reasonable delay is necessary to protect other fundamental constitutional rights of the defendant," gave the court the ability to find that here, his statutory speedy trial right gives way to the court's desire to protect his right to a fair trial. Unfortunately the Colorado Supreme Court denied the petition, leaving the decision by the court of appeals as the final decision.
I am appalled that our justice system, in which a jury of the defendant's peers which the defendant helped choose, unanimously found him guilty beyond a reasonable doubt of sexually offending against 6 innocent victims, yet the court of appeals vacated the convictions after finding that the trial courts efforts to protect the defendant's constitutional rights to a fair trial violate an arbitrary statutory right that the defendant had waived on two prior occasions."
McFadden has a motions hearing scheduled for Aug. 13 and a trial slated for Oct. 2.