BY ANDY KAY
Then Attorney General, now United States Senator, Kamala Harris, with the full forces and resources of the California Attorney General’s Office headed up the investigation and prosecution against Mark Feigin.
“The prosecutor, who is supposed to carry the burden of proof, really is an author.”
I’m going to tell you a story about my client, a man named Mark Feigin, who was an easy target for unjust prosecution because of his political beliefs.
Mark found me through a Google search for a private investigator, specifically choosing me because I have worked with the Attorney General's Office, and he liked the way I communicated with him. He called me, and he sounded very off-center, but his story sounded believable. Having dealt with cases that show how the nature of law enforcement has become a system that railroads innocent people, I felt that this is what was happening to him. I know that once the system has decided that you are guilty there is no willingness of law enforcement to correct their mistake or work with a person to even understand what is happening to them or why.
By the time Mark called me, he had been accused of making threatening phone calls to The Islamic Center of Southern California in September, 2016. His house had been raided. He had been arrested by 21 police officers in full body armor with automatic rifles. He had been jailed and had to make bail at an astounding $80,000. He was arrested because the Islamic Center pointed their finger at him. The Islamic Center has previously received a voicemail that was offensive but non-threatening from an unknown person. According to the Islamic Center, the voice in this recording sounded like the voice in a threatening phone call they had received. Our examination of all the phone records proved there was no phone call received at that time by the Islamic Center. They claimed a threatening call was received five minutes after Mark posted something offensive on the Center’s facebook page. The witness ‘identified’ Mark’s voice as the voice he had heard in the previous offensive phone call.
There are no records of any phone calls to the Islamic Center from Mark Feigin’s phone. There are no incoming calls to the Islamic Center at the time they claimed Mark called them. The source of the offensive, not threatening voicemail was actually proven to be from the son of a Los Angeles Superior court judge.
This is how ridiculous it is...this is how it happened...
(Yes, it was that easy to destroy Mark's life)
There was no evidence of a threatening phone call, no proof that any phone calls the Islamic Center did receive were ever from Mark, or proof that Mark made threats to anyone at all. The only link between Mark and The Islamic Center, ever, is a non-threatening Facebook post.
Mark had been arrested and interrogated without an attorney present. He was told that it was, in fact, his voice on a recorded voicemail to the Islamic Center. When Mark was told “it’s your voice on the recording,” Mark replied, “what phone call” and “I would never make a threat,” not knowing how it could have possibly been his voice. Mark thought he could trust the police but one thing I always tell my clients is never talk to the police without your lawyer present.
During the investigation Mark made an emotional mistake in his case. He was frustrated with officer McKeown*. This officer was accusing Mark of making a confession that he says he never made. This ‘confession’ had never been recorded and did not show up on any transcripts of the interrogation. There is no evidence of there ever being a confession. So Mark sent officer McKeown a text message that read, “…why don’t you tell the f***ing truth?” That was not the best decision, yet it’s understandable how a person would be at their wits end by this point. Somehow, telling an officer to tell the truth is considered dissuading a witness; via penal code 136.1. So the police arrested Mark and charged him with dissuading a witness. That cost him $125,000. Mark, an Uber driver, had to find a way to pay another $125k right away. That’s an expensive text message to send.
Obstacles in the case…
There were a few notable obstacles I had to deal with during the case. First of all, I was dealing with a guy who is pretty eccentric. Mark is very involved in political blogging and is very right-wing, but regardless of whether we agree with each other politically, we both respect free speech. The fact is that Mark is an upstanding citizen with no previous criminal record and who was not breaking any laws. However, he was an easy target.
There was another obstacle I had to work around. While in custody after being apprehended at gunpoint by 21 police officers, Mark was questioned by police that said “they know” it is his voice on the threatening message. He was stunned and in shock, and he was being told by police that they knew for a fact it was him that left the voicemail. So he responded, “well, if it’s my voice then I guess it’s my voice” yet vehemently denied doing it. This is what they called his ‘confession.’ It is important to note that at no point did the prosecution do a voice match on Mark to compare it to any voicemails.
Mark was also a gun owner. He was a legal gun owner, but the fact that the police raided his mobile home and displayed photos of his guns all over the news made him immediately look dangerous to those who viewed him on the news stories. Mark is also an outspoken blogger with views that can be offensive or disagreeable. Using his opinions against him is absolutely unconstitutional, however it does help the prosecution show him as an unlikable person. The LA Times wrote an article about Mark and how his statements are protected by the 1st Amendment, even though they are offensive to certain groups of people. If posting offensive views online were a crime, everyone with a computer would be in jail.
Proving Mark’s innocence…
Getting private phone records without professional help is nearly impossible. Knowing what to do, how to go about it, knowing the rules, the laws, and the procedure are industry specific; not to mention you need a subpoena. Knowing how to decipher the information is completely different story. We had to acquire and examine several hundred pages of phone records that law enforcement never attempted to attain, or maybe they just didn’t care to. We examined both the phone records of both the Islamic Center’s incoming calls, as well as Mark’s outgoing calls. We went through huge files of discovery, none of which contained any evidence of Mark’s guilt. Also, the Islamic Center told police that the call happened five minutes after Mark’s facebook post; upon review, we found no incoming calls occurred around that time period. It is my professional opinion that no threatening call even took place and that this employee fabricated the story. To this day, there still is no evidence of a call taking place or ever being received at the Islamic Center at that time.
In a CNN article later released, it is stated,
"Police later determined from phone records and a subsequent interview that the voicemail was left by a man named Michael Slawson, the judge's son. Slawson, police would later learn, had made numerous calls to various mosques expressing his dislike of Islam."
This information from the CNN article quote above, mentions information the police determined. That information was gathered by myself and my team at Kay & Associates Investigations, not the police. We presented the facts through the phone records, and the number that was responsible for the call to the Islamic Center. This did not stop the prosecution from continuing to pursue Mark. Why? Good question. (Why don't you ask Anita McKeown??)
The Islamic Center employee claimed he received the threatening phone call at a certain time. We were able to prove that no calls even came into the Islamic Center during the time the witness claimed it happened. Keep in mind this witness is the only “evidence” against Mark, and the call in question was never recorded. There was and still is no evidence of a crime ever having taken place.
There had been a call to the Islamic Center that was recorded prior to the call in question however, that call included no threats and did not come from Mark. The witness had seen some of Mark’s comments online that were anti-Islamic. The witness said the voice on the recording sounded like the voice on the following threatening call, so the caller must be Mark. These calls were the reason why the witness accused Mark. As you can see, there is no connection at all with Mark that makes sense. None of Mark’s blogs were violent or threatening, nor did they incite action. They were one man’s blogs about his political ideologies.
What we did prove was that Mark Feigin did not make the phone calls. The investigation proved the calls actually came from a man named Michael Slawson, who happens to be the son of an LA County judge, John A. Slawson. Michael Slawson has a solid history of making calls to Islamic groups and expressing his disdain for Islam. Ask me if he was arrested or charged with absolutely anything at all after the officers found this to be true. Ask me. Nothing was done to him. He paid no fines and received no punishment as of this writing. Even Judge Slawson, when contacted by CNN said it was “a family matter.” And maybe that’s what it should have been since the beginning, but instead Mark Feigin took the brunt of lies and lost over $300,000 to this case. The stress Mark Feigin has endured is much worse. His life was put on display and he was vilified for something without one shred of evidence. The fact is, Mark's life has been completely shaken and he has been financially crushed.
Eventually Mark took a plea bargain for dissuading a witness (a misdemeanor) and another misdemeanor for making annoying phone calls. In my opinion, this was all to keep their win-record intact and keep Mark on the hook. Part of his probation is loss of a number of civil rights and liberties.
In the most recent article by The LA Times regarding Mark’s case, Caleb Manson who reps Mr. Feigin said:
"It is disgraceful for a prosecutor to drop a charge, and then issue a press release implying that it got a conviction on that charge," attorney Caleb Mason said in a statement to The Times on Saturday. "An accurate press release would have read: 'We dropped the threat charge against Mr. Feigin because we didn't have a case against him.' "
What is even more disturbing than all of this is that we later found out The Islamic Center has received a confession from Michael Slawson in late May of 2017. Although the Center received his confession, they still pursued Mark and never turned over the new evidence. Why did they continue to prosecute Mark and not divulge this confession??
The system is broken
This case took about a year and a half of Mark’s life and hundreds of thousands of dollars that he had to borrow and raise funds for. Mark should never have had to hire me. Mark should not have to be in major debt over this. He should not be the one to prove his innocence. The police should have really looked into the case rather than just going straight for Mark without any actual evidence against him. Hell, there should at least be evidence of a crime. Somebody simply pointed a finger at him. That’s how easy it is to put a person through what Mark was put through. Just call the police and claim someone called you and made a threat. Under the right circumstances that’s how easy it is to ruin someone’s life.
I could go through what the police and prosecution did wrong in this case, but there is a bigger picture. There are basic things that can and should be changed:
· The police need to investigate from a neutral position. They should not be the prosecutorial arm of the law. The police and prosecution should not be on the same team, as this makes the police the enemy of the public; not invested in finding the truth of the crime, but only in closing and prosecuting cases.
· All evidence should be treated the same. When all the evidence does not point to the guilt of the accused, police often ignore it or try to get it thrown out. This leads to innocent people prosecuted and ensures that the guilty go free, doubling the number of victims.
· It would make more sense if the prosecutors and public defenders offices were one. They would switch sides every other case with both sides have access to law enforcement to investigate. As it is, only the prosecution has that advantage. This way prosecutors perform their duties that are non-bias, and their win-loss record would carry with them.
· Non-violent criminals should not be held on excessive bail. They can’t defend themselves while in jail, obviously. The average American citizen does not have $50,000 sitting around for bail. If you don’t have the money for bail, you have no chance to even get out of jail and put a case together to defend yourself. On top of that, good lawyers and private investigators are expensive; many people can’t even afford a good defense.
· We need to get rid of plea bargaining. If you don’t have enough evidence to prosecute a defendant, don’t prosecute them. Charges are often piled on in order to force a defendant to take a part of those charges in order to avoid serious punishment. True criminals are well aware of plea bargains and know that they can walk away from serious charges by “making a deal”. As a matter of fact, if you take the verbiage out of penal code section for extortion, it reads exactly the same way as a plea bargain works. All of the criminal elements are there.
· When cops or prosecutors lie, or withhold or fabricate evidence they should be prosecuted. Their punishment should be equal to the terms of punishment of the wrongly accused.
· Police and prosecutors must be held accountable for telling the truth and for leaving out parts of the truth. When police officers are proved to be dishonest, there should be no possible way they can stay in law enforcement.
Of course there is so much more to the issue than a few pointers. The problems with our criminal judicial system are vast and complicated and cannot be solved overnight. But there are some simple things that can be done differently to the advantage of your rights. Until these things begin to change, if you ever get accused of something: say nothing and hire an attorney. I will say it again: say nothing. Just look at the case of Mark Feigin, who until this incident had never been in handcuffs, had been a great proponent of the police, and was great believer in our justice system.
This is the kind of prosecution that drives a wedge between good cops, the prosecutors, and the people. Many good cops and good prosecutors are longtime, dear friends of mine. And these good women and men unfortunately suffer the distain of those that have encountered the bad ones. Maybe this will wake someone to make a change; someone who wants to make a change and has the power to do so. Maybe even the judge whose son actually made the calls could take the first steps toward fixing these issues.
In the case of Mark Feigin, our justice system failed to measure up to the standard we built this country on. A standard of truth, proof, fairness and balance was not upheld, and those who were appointed by the people were blatant in their injustice. What took hundreds of thousands of dollars, almost two years of his life, a private investigator, and full legal team to save his freedom should have never, ever happened.
We rarely speak of specific client cases but this case was such an egregious prosecution that not only did I feel it was important to speak about, but I was encouraged by Mark to share it in hopes that it would make a change in someway positive.
It’s so easy to read a story like this and think, “oh, but that would never happen to me.” No one ever thinks it will happen to them. Then they find themselves searching for a private investigator…
* Note: Officer Anita McKeown had been in trouble for lending her nanny her LAPD badge to use. McKeown denied doing so even when the nanny was caught trying to use the badge by the LAPD. Also a man named Gary Steiner, who had been Anita McKeown’s supervisor at the Santa Monica Police Department, saw the story about this on CNN. Steiner called Mark to let him know he would testify that McKeown had been let go from the police department, McKeown was incredibly dishonest, and many times McKeown had put other officers lives at risk.