The Oei Case: Pulling Back the Curtain, Part I

Questions have arisen after the August indictment of Freedom High School assistant principal Ting-Yi Oei, who is alleged to have had in his possession an inappropriate cell phone photo of a juvenile female Freedom High School student. Originally charged in March with a misdemeanor, Oei now faces a Possession of Child Pornography charge. According to Sheriff’s Office spokesperson Kraig Troxell, Oei obtained the photo from another student at Freedom during the course of a school investigation, but never informed the child’s parents, Child Protective Service, or the on-site Sheriff’s Office deputy.

Oei was arrested August 20 on the Freedom High School campus, where he and his attorney said they first were made aware of the indictment. Oei was taken to the courthouse and released on a personal recognizance bond by a Loudoun County magistrate.

Since the initial misdemeanor charges were filed, the Oei case has elicited questions that remain unanswered. The questions raised in this three-part article were posed to both the prosecution and the defense, with no answers from the prosecution and few from the defense, with most facts in this article found in the affidavit signed by Jim Faughnan–Oei’s original attorney against the misdemeanor charge–an affidavit generally not disputed by either the prosecution or the defense.

The School Investigation

The case began when the Freedom High School administration received reports that students were circulating nude photos using electronic means, including cellular phones. In his role as assistant principal, Oei investigated the rumors with the approval of Principal Christine Forester.

With the principal’s approval, Oei obtained one copy of the photograph, an image that had been sent anonymously to a student’s phone. By all accounts, the photo was of a female, and while suggestive—it was not a nude photograph. The image captured the female from just below the shoulders to mid-thigh and did not include a head. The photo was retained for purposes of the school investigation.

Despite the lack of a face in the photo, Assistant Commonwealth’s Attorney Nicole Wittmann has said that the minor has since been identified. While certain details of the internal school investigation remain uncertain, it has been confirmed that Oei did notify the school principal concerning the photo, but he did not contact Child Protective Services or the female’s parents, since the female was not identified.

Failure to Report Suspicion of Child Abuse or Neglect is a misdemeanor under VA Code 63.2-1509. If a teacher or administrator becomes aware of possible abuse or neglect, he or she must “immediately notify the person in charge of the institution.” In this case, the person in charge of the institution is Principal Christine Forester, who had indeed been notified. Loudoun County spokesperson Kraig Troxell originally indicated that Oei was charged with the misdemeanor as a result of failing to contact the appropriate authorities. It was when the Loudoun County Sheriff’s Office was notified of the incident through a third party that misdemeanor charges were filed against Oei.

Failure to Report

Notified that misdemeanor charges had been filed against him, Oei hired attorney James J. Faughan to represent him and meet with the Commonwealth’s Attorney’s office.

In an affidavit filed by Faughnan, it was noted that a meeting was held on May 22 between Faughnan, Assistant Commonwealth Attorney Wittmann and Gigi Lawless of the Commonwealth Attorney’s office. During the meeting, Wittmann acknowledged that Oei would have satisfied his reporting obligation if he had notified the principal, Christine Forester, of the incident, as he said he had done. On May 30, Wittmann received confirmation that Oei had “timely reported” the incident to his principal.

Faughnan’s affidavit also indicates that on May 30, 2008, Wittmann informed Faughnan that the Commonwealth would nolle prosse the misdemeanor charge against Oei. A nolle prosse motion can be used to drop the charges prior to a defendant pleading guilty or the case coming to trial. It is sometimes used when there is a lack of evidence, or when a defendant pleads guilty on another charge. Further, Wittmann also agreed to expedite the motion to nolle prosse, in order to allow Oei to return to his job at Freedom High School. She did not indicate any further charges would be brought forth against Oei.

On June 12, Wittmann filed and served the Motion to Nolle Prosse, and set a hearing for the next morning. Later in the afternoon of June 12, Wittmann informed Faughnan that she intended to withdraw the Motion to Nolle Prosse. She claimed that Commonwealth’s Attorney James Plowman had not been informed that Wittmann intended to nolle prosse the case, and according to Faughnan’s affidavit, indicated that when Plowman learned of the motion, he instructed her to withdraw it.

Raising the Stakes

On June 16, Wittmann informed Faughnan the Commonwealth would charge Oei with felony Possession of Child Pornography, should he not plead guilty to the misdemeanor charge of Failure to Report Child Abuse or Neglect charge, and in addition, he would be required to resign from the school system. Upon hearing the plea offer, Faughnan called Plowman to argue Oei’s case, particularly Faughnan’s position that the photo was not pornographic; that Oei did not know that the torso depicted in the photograph was that of a minor; and that Oei was in possession of said photo as a result of a “legitimate school investigation.”

In response, Plowman indicated that he would have asked for a search warrant to seize Oei’s home computers, but indicated he did not have probable cause to do so. In a follow-up conversation, Plowman’s position had not changed, expressing a concern that the police, as well as the parents of the students who were questioned in the school investigation, were not notified.

Plowman also claimed that part of the female’s breast was exposed in the photo, and that he believed that Oei might know the age and identity of the female whose torso was in the photo. According to Faughnan’s affidavit, Plowman indicated that his “gut” told him not to allow Oei to return to school.

Within two months, on August 20, Oei was arrested for Possession of Child Pornography on the Freedom High School campus.

This in-depth examination of the Oei case and the questions regarding it will continue in the Nov. 12 edition of the Loudoun Independent.