The Oei Case: Pulling Back the Curtain, Part II

In the second of a three-part series, the Loudoun Independent examines the case of Ting-Yi Oei, an assistant principal at Freedom High School, charged with Possession of Child Pornography.

Summary of Part One (available online at www.loudouni.com): Principal Oei obtained a non-nude but suggestive photo from a student cell phone while in the course of a school investigation. The photo featured only a torso and was not readily identifiable.

Oei was initially charged with failing to report the photograph to the subject’s parents or other responsible party. Through his attorney, James Faughnan, an initial agreement was reached with Nicole Wittmann of the Commonwealth’s Attorney’s Office to dismiss the charges.

Instead, the charges escalated—to Possession of Child Pornography. What followed was either a series of miscommunications between the prosecution and the defense, or cunning legal and public relations strategy. Either way, Ting-Yi Oei now faces a felony charge and up to five years in prison.

Part II: The Grand Jury & a Public Arrest

On August 11, 2008 Oei was handed an indictment by a grand jury on Possession of Child Pornography. Oei and his attorney claim to have been unaware of the indictment. As such, Oei and his counsel did not appear in court on August 12 to face the charge. The Commonwealth Attorney’s office insists counsel for the accused was properly notified. In his affidavit, Faughnan indicates he never received notice.

On Sunday, August 17, Faughnan received a message from Oei, indicating he had heard rumors of his possible indictment on August 11 by a grand jury and was concerned he could be considered a fugitive. On Monday, August 18, Faughnan telephoned both Wittmann and Commonwealth’s Attorney Jim Plowman asking if his client had been indicted. Faughnan left a message for both Wittmann and Plowman reporting that if Oei had indeed been indicted he was ready to turn himself in. Although reasons are unknown, neither Plowman nor Wittmann returned Faughnan’s call until two days later.

Faughnan’s affidavit notes, “…not withstanding his offer to turn himself in, on Wednesday, August 20, at or about 9:30am, Mr. Oei was arrested at Freedom High School for Possession of Child Pornography in violation of Virginia law, the first day back to school after summer vacation in Loudoun County.” Faughnan did not receive a return call from the Commonwealth’s Attorney’s office until six hours after Oei’s arrest.

Why the Freedom High School administration was subjected to the public arrest of one of their own—while on school grounds—remains unclear, especially when accompanied with Oei’s offer to voluntarily turn himself in. The answer may be found in Faughnan’s affidavit, which claims that Plowman “believed in the past that other Loudoun County Public School administrators had not reported alleged incidents to law enforcement when they should have,” and complained that LCPS administrators “preferred to conduct their own investigations.”

It is also unclear whether the Commonwealth Attorney’s office ever contacted the school system concerning Oei’s indictment or his arrest.

A New Defense Attorney Disputes the Charges

Soon after being charged with the felony Possession of Child Pornography, Oei hired attorney Steven David Stone to lead the defense, as Faughnan does not handle felony criminal charges as part of his legal practice.

In consultation with Oei and Faughan, Stone filed three motions in Loudoun County Circuit Court on Oei’s behalf, questioning the substance and motives involved in the case.

Defendant’s Motion for Limited Preliminary Discovery: The first motion directs the Commonwealth’s office to allow Oei and Stone to “inspect and copy the picture that is the subject of the charge against Defendant in all formats…” Stone labels the photo as “exculpatory and or relevant and material to the defense of this matter and is necessary to the preparation of a motion to dismiss the indictment charging Defendant with a violation of Virginia Code.” In short, the defense claims that a physical review of the photo itself will determine that the photo does not meet the standards of child pornography.

The Commonwealth Response: In response to the request, the Commonwealth did authorize Defendant’s counsel to view, but not copy, a “poor” black-and-white photocopy of a color print of the picture. As a response to the motion, the Commonwealth Attorney’s office notes Virginia Code “governing the method of discovery of imaged of child pornography.” The section states that:

When computer data or electronic data, stored in any form, the possession of which is otherwise unlawful, are seized as evidence in a criminal prosecution of any offense involving obscenity or child pornography, neither the original data nor a copy thereof shall be release to the defendant or his counsel, nor shall a court order the release of such evidence to the defendants or his counsel except as provided herein.

This motion is awaiting a final ruling from the court, along with two defense motions—one claiming bias on behalf of the Commonwealth’s Attorney’s office and the other claiming that failure to provide a preliminary hearing warrants a dismissal.

This in depth examination of the Oei case and the questions regarding it will continue in the Nov. 19 edition of the Loudoun Independent.