“I am completely appalled with the decision, I find it offensive that our justice system would allow this to happen,” railed Mesa County, Colorado, District Attorney Dan Rubinstein. “You’ve heard the phrase before, ‘got off on a technicality,’ this is that situation to the most stark sense I’ve ever seen it.”
Indeed, Rubenstein’s disgust over the sudden release of Michael Tracy McFadden — a convicted habitual child sex offender, sentenced to 300 years for sexually assaulting six children — from the Arkansas Valley Correctional Facility in Colorado on a literal technicality.
Despite the young ages of the boys and girls he victimized, despite the brutality and violence characterizing his crimes, and despite being found guilty and receiving a lengthy punitive sentence, McFadden now walks free — without ever having to register on the national sex offender database — because the Colorado Supreme Court affirmed (through its refusal in February to hear the case, according to USA Today) an earlier appellate court’s ruling his rights were violated under the state’s speedy trial requirement.
A previous conviction — also for sexual assault on a child — occurred prior to the creation of the national sex offender registry, therefore falls outside any requirement for McFadden register.
“We are without remedy,” Rubenstein continued, reports the Grand Junction Daily Sentinel. “The thing that is so frustrating is that everybody agrees that every decision was made to the benefit of protecting (McFadden’s) right to a speedy trial.”
According to the district attorney, the appellate court ruled there was “no question that (McFadden) did not expressly waive” his right to a speedy trial — a trial delayed by the defense in its quest to include additional provisions in the jury questionnaire for selection purposes — even though attorneys had, twice before, agreed to waive speedy-trial requirements.
McFadden, 46, stood trial in 2015; but delays extended the process past statutory requirements — and there is no possibility for the serial, violent child sex offender to be retried.
“We recognize that ‘but for’ defense counsel’s addition of the language into the jury questionnaire, the trial would have gone forward as originally scheduled. However, under the unique circumstances of this case, we cannot attribute the delay to (McFadden),” states the court ruling, cited by the Sentinel, written by Judge Jerry N. Jones, and thusly concurred by Judges Craig R. Welling and Dennis Graham. “The prosecutor expressly agreed to the jury questionnaire as drafted by defense counsel, and the trial court accepted it as tendered. The language that the trial court ultimately found to be problematic did not violate any existing authority or order of the court, nor would it have resulted in plain error. Because defendant did not agree to or otherwise occasion a necessary continuance, he cannot be charged with the trial delay.”
McFadden’s disturbing predation of children became apparent during trial, as prosecutor David Waite told the Sentinel, he “befriends people who have young kids and then he gets into a situation where he has access to those kids, and he grooms them pretty heavily,” adding he appeared to carefully select families of potential victims.
After gaining the families’ trust, McFadden tempts their children with the adventure of four-wheeling or riding dirt bikes, “and then molests them as they are in his care” — with most but not all the assaults occurring at night.
Waite emphasized the trauma victims experienced during the trial process — but that may be amplified by orders of magnitude now that his convictions have been wholly vacated.
“There’s not a lot of help that we can give them, this is now a case that will just be dismissed and set aside,” victim assistance coordinator Kathi Raley told IJR. “So it’s an unfortunate situation that they’re all in.”
Perhaps the inhumanness of skewed, biased, and innately flawed system — popularly deemed the U.S.’ Injustice System — is most underscored in this case, where a vicious and unforgiving attacker of innocent children has been set free due to, as the prosecutor lamented, “an arbitrary statutory right that [McFadden] had waived on two prior occasions.”
Featured image: Wikimedia Commons/Jeffrey Beall.