“The prosecutor, who is supposed to carry the burden of proof, really is an author.”
by Andy Kay
I’m going to tell you a story about my client, Mark Feigin—a man who looked guilty but wasn’t.
Mark was not an easy man to represent, as you’ll see. He found me through a Google search for a private investigator and called our firm, sounding off-center. He was accused of making threatening phone calls to a mosque. His house was raided. He was arrested at gunpoint by 21 officers and held on $80,000 bail.
Mark insisted that he did not make the phone call. But for several reasons, the Los Angeles Police Department found it very easy to believe that he did.
I found Mark’s account credible. I felt that he was innocent and being railroaded by detectives who wanted an easy “win” in a case likely to attract media attention. Mark’s public anti-Islamic postings had made him an easy target, so police and the press hastened to draw conclusions about his guilt. In their haste, they made mistakes.
Unfortunately, once we helped bring these mistakes to light, police were unwilling to correct them or admit that they’d been wrong.
That’s not how our justice system is supposed to work. But that’s why we have defense attorneys and investigators: to protect the rights of the accused and stand up for the innocent, even when they are controversial or profoundly unlikeable figures.
The menacing calls came in on September 19th and 20th, 2016; an employee at the Islamic Center of Southern California called 911 on the 20th and reported that the caller had threatened to “annihilate Muslim rats.”
It so happened that between September 17 and September 25, Mark Feigin left several incendiary posts on the center’s Facebook page: “Practicing Islam can slow or even reverse the process of human evolution,” read one such post.
The employee who answered the second threatening call, Muhammad Popote, drew the conclusion that the caller must be the same person who had posted on the center’s Facebook page, which is what Popote told the 911 operator. There was no proof, only an assumption.
Police charged Mark with a felony hate crime, raided his trailer, and seized a large cache of rifles and ammunition. To the LAPD, the Islamic center, and the media, this looked like a story of tragedy averted: Crazed bigot stockpiles weapons and threatens mosque, but is thwarted by diligent police work.
Unfortunately, their story was wrong.
Obstacles for the Defense
As part of Mark Feigin’s defense team, I faced an uphill battle fighting the charges against Mark. First of all, I was dealing with a guy who is eccentric, to say the least. He is a right-wing blogger who openly writes about his contempt for Islam. But I don’t have to agree with him to defend him. Mark’s posts were offensive but legal. The Constitution protects his right to express bigotry or even hatred, as long as he does not threaten to harm anyone.
On our side was this fact: There was no evidence that any phone calls the center received were from Mark. The only link between Mark and the center was an ugly but non-threatening Facebook post. That meant that to convict Mark, police would have to get a confession from him.
The interrogation was rife with problems. Mark was interrogated without an attorney present. Throughout the interview, he insisted that he did not remember calling the Islamic center or threatening anyone, but then detectives began to steer him into the realm of what ifs: First, they told him that they “knew” it was his voice in the voicemail message (not true—we found no evidence that they had done a voice match on Mark). Mark was stunned. “Well, if it’s my voice, then I guess it’s my voice,” he said, his certainty shaken in the face of the detectives’ false statement. Mark went on to admit that he could be “hotheaded” and would sometimes drink himself to forgetfulness, but he continued to deny making the calls.
“What you just said to me is exactly what I think happened,” said the detective.
This is what they called his “confession.”
Keep in mind, no actual confession was recorded, nor does one appear in the interrogation transcript. Mark’s cell phone records showed no calls from him to the mosque on September 19 or 20. And the Islamic center phone records we managed to obtain turned up no calls from Mark on those dates. But they did receive calls from Michael Slawson, the son of an L.A. Superior Court judge.
Strangely enough, although Slawson was eventually found to have left the original voicemail message, police did not charge him with making the threatening call—or with any crime whatsoever.
Mark may have fit the profile of a guy who might threaten a mosque, but police had no evidence that he actually had. In fact, they had another suspect, a man with a history of making calls to minority groups and expressing his disdain for them. Things looked good for Mark. But then he made an emotional mistake, one that proved costly: He had grown frustrated with Officer Anita McKeown, who claimed that Mark had confessed. Mark disagreed, and sent the officer a text message that read, “…why don’t you tell the f***ing truth?”
He was charged with dissuading a witness. A $125,000 mistake. Mark, an Uber driver, had to find a way to pay another $125k right away. That’s an expensive text.
To stop the financial bleeding, Mark took a plea bargain for dissuading a witness (a misdemeanor) and another misdemeanor for making annoying phone calls.
What makes this case so disturbing is that although authorities dropped the felony threat charge against Mark, they showed no interest in pursuing charges against Slawson, despite evidence pointing to him. Why did they go to such lengths to prosecute Mark and pay no mind to the more likely suspect?
The case against Mark was made of smoke and mirrors: Mark’s blogposts were abhorrent, but not violent or threatening—nor did they incite action. He was a legal gun owner made to look like a menace, thanks to a dramatic police raid and photos of his guns splashed over the news.
The thing is, being unlikeable does not make you a criminal. Offensive words should not put a person in jail. Using his opinions against him is absolutely unconstitutional, as the LA Times pointed out in an editorial earlier this year.
Even vile, hateful statements are protected by the First Amendment. If posting objectionable views online were a crime, almost everyone with a computer would be in jail.
A Broken System
I could go through what the police and prosecution did wrong in this case, but there is a bigger picture. Of course, our criminal judicial system is vast and complicated, and its problems cannot be solved overnight. But there are some simple things that we should do differently, to the advantage of your rights. Here is what I believe should happen to ensure a fairer system for us all:
1. Law enforcement should remain unbiased.
The police need to investigate from a neutral position. They are not the prosecutorial arm of the law. Police and prosecutors tend to see themselves as teammates or allies, but they should really operate independently of each other. Law enforcement’s job is simply to collect information; it’s up to prosecutors how to interpret and use it. Police should never be in the business of determining guilt.
2. Inconvenient evidence should not be dismissed.
All evidence should be treated the same. Police have been known to ignore evidence that does not support their theory of a case. This leads to innocent people being prosecuted and the guilty going free—which does not serve victims seeking justice.
3. The zero-sum mentality needs to end.
Prosecutors and public defender’s offices should work as one. They should switch sides every other case, walk around in each other’s shoes for awhile. That would shatter the win-at-all-costs mentality that equates “winning” with a conviction (for prosecutors) or an acquittal (for public defenders). What if we only viewed a “win” as a case where the guilty were punished and the innocent walked free?
As it is, the way we measure success—an attorney’s win-loss record—rewards dirty tricks instead of truth-seeking and real justice.
4. Reform the bail system.
End excessive bail for non-violent criminals. The average American citizen does not have $50,000 sitting around. Defendants who can’t post bail have little or no power to defend themselves from behind bars. On top of that, good lawyers and private investigators are expensive; many people can’t afford attorneys’ fees, much less a good private investigator who will help balance the investigative scales on their behalf.
5. Abolish plea bargaining.
If you don’t have enough evidence to prosecute a defendant, don’t prosecute. Charges are often piled on in order to force a defendant to take a smaller conviction, to avoid serious punishment. Plea bargains amount to a sort of blackmail; in fact, if you take the verbiage out of the penal code section for extortion, it sounds a lot like how a plea bargain works.
6. Hold unethical prosecutors and police accountable.
Cops or prosecutors who lie or withhold evidence should be prosecuted. Their punishment should be equal to the time served by the wrongly convicted. Change the system of incentives, and we may actually see some reforms.
– – – – –
If you take nothing else away from this article, remember this: If you are ever accused of a crime, say nothing and hire an attorney. I will say it again: Say nothing. Just look at the case of Mark, who until this incident had never worn handcuffs.
This is the kind of prosecution that drives a wedge between good cops, prosecutors, and the people. Many good cops and good prosecutors are longtime, dear friends of mine. And these good women and men must suffer the mistrust and contempt of people who have encountered the bad ones.
In Mark’s case, our justice system failed to measure up to the standards of truth and fairness we expect in this country. It took hundreds of thousands of dollars, almost two years of his life, a private investigator, and a full legal team to save his freedom, and that should never, ever have happened.
We rarely speak of specific clients’ cases, but this prosecution was so egregious that I felt it was important to speak out. I was also encouraged by Mark to share it, in hopes that it would help spur positive change in our system.
It’s easy to read a story like this and think, “That would never happen to me.” No one ever thinks it will happen to them. Then they find themselves searching for a private investigator.
About the Author:
Andy Kay is owner of Kay and Associates Investigations in California. He studied criminal justice, political science, law, and engineering at Sacramento State University and USC. Kay got his private pilot’s license in 1987 and a PI license in 1992. After working for many years in the construction and mining business, Kay has built a specialty in construction investigations, and has also worked cases involving child custody, infidelity, asset location, fraud, criminal defense, insurance, cyber security, celebrity protection, surveillance, background checks, and missing persons. Find him on LinkedIn, Instagram: @KAinvestigates, and Twitter:@AssociatesKay.