The Oei Case: Pulling Back the Curtain, Part III

Ting-Yi Oei, an assistant principal at Freedom High School, faces a charge of Possession of Child Pornography. In the final installment of a three-part series, the Loudoun Independent continues an examination of the Oei case, concluding with an analysis of three motions filed by defense attorney Steven David Stone—including motions which allege misconduct by Commonwealth’s Attorney Jim Plowman related to a personal bias, discovery issues concerning the photo at the center of it all, and failure to provide Oei with a preliminary hearing.

In Part III, the Loudoun Independent deconstructs three motions filed by defense attorney Stone. These legal motions, filed in Loudoun County Circuit Court in September, demonstrate the complexity of this case, unearth critical details, “connect the dots” of a case in which nobody is talking, and provide an insider’s look as to how the legal system can be as much of a game as an institution.

Summary of Parts I and II:

Oei obtained a semi-nude 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. An initial agreement was reached with Nicole Wittmann of the Loudoun County Commonwealth’s Attorney’s Office to dismiss the charges through Oei’s original attorney, James J. Faughnan. 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.

Oei was indicted by a grand jury on Possession of Child Pornography on August 11, 2008. Although Defense Counsel Faughnan claims Oei volunteered to turn himself in, Oei was arrested at Freedom High School on August 20 after he failed to appear in court. As a result of the new charge, Oei hired criminal defense attorney Steven David Stone.

The full text of this three-part series is available online at www.loudouni.com.

Part III

The examination of the three defense motions reveals a series of legal contradictions in this case, or at the very least, a use of broad applications of the Virginia legal code. The motions filed include Defendant’s Motion for Limited Preliminary Discovery, Motion to Disqualify Commonwealth’s Attorney, and Motion to Dismiss for Failure to Provide Preliminary Hearing.

Questioning the Charge

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…” 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’s Response: In response to the request, the Commonwealth did authorize defendant’s counsel to view, but not copy, a black-and-white photocopy of a color print. In the response to the motion, the prosecution notes Virginia legal code:

“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 released 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.”

Questioning the Prosecution

Motion to Disqualify Commonwealth’s Attorney: Stone alleges that Plowman is in violation of the Virginia Rules of Professional Conduct, indicating the “Commonwealth’s Attorney obtained a direct indictment against Defendant charging him with possession of child pornography,” even though Stone alleges that “he (Plowman) knows that the image that is the subject of the prosecution does not meet the….definition of child pornography.”

The Commonwealth’s Response: In response to the motion, the Commonwealth Attorney’s office claims no existing “personal bias” and notes Virginia legal code:

“The burden is on the party seeking disqualification of the prosecutor to present evidence establishing the existence of disqualifying bias or prejudice…”

Legal Maneuvering or Lack of Due Process?

Motion to Dismiss for Failure to Provide Preliminary Hearing: The legal system provides a safety mechanism to ensure that only those criminal cases that have met a threshold of proof proceed forward through the court system. Stone cites Virginia legal code for support his claim:

“No person who is arrested on a charge of felony shall be denied a preliminary hearing upon the question of whether there is reasonable ground to believe that he committed the offense and no indictment shall be returned in a court of record against any such person prior to such hearing unless such hearing is waived in writing by the accused.”

In response, the Commonwealth Attorney’s office notes that despite “his attorneys James Faughnan and Jamie Mastrandea being informed of the fact that the Commonwealth was seeking such an indictment both verbally and via e-mail and further being instructed to have the defendant present himself on August 12...” Plowman indicated that due to his absence, Oei was not arrested on a warrant for the underlying charge of Possession of Child Pornography, so was never entitled to a preliminary hearing on that charge. The arrest capias, a variant of an arrest warrant, was actually issued for Failing to Appear, not on the indictment of Possession of Child Pornography.

This last point may provide a glimpse as to how the absence of Oei in the courtroom on August 12 may play into the potential strategy of the prosecution’s case. Had Stone and Plowman successfully negotiated Oei’s surrender, a preliminary hearing would have most likely occurred. Had the preliminary hearing taken place, would the case ever make it to trial at all?

Under federal statute, a pornographic image must include actual or simulated sexual activity. In Virginia, however, a defendant can be prosecuted for possession of an image with a lewd exhibition of nudity. The defense alleges that the photo at the center of the Oei case contains nothing that meets the definition of “sexual activity” or “nudity”—if so, it does not meet the definition of “child pornography.” However, this distinction will now be determined by a circuit court judge, or a jury of Oei’s peers.

Accusations

Starting with the indictment of Ting-Yi Oei on Possession of Child Pornography, this high-profile case continues with allegations from and against almost every individual involved in the case, including professional misconduct, personal bias, collusion, and ethics violations. Whatever the truth, whatever the outcome, the Oei case has opened the eyes of those who either believe him guilty of a heinous crime or believe him to be wrongly accused and vilified.

Loudoun Education Association’s UniServ Director Pam Dilbeck believes that Oei is “100% innocent,” and many of his friends and family have stepped forward in support. Others in Loudoun County Public Schools remain reluctant to speak either for or against, choosing not to play judge and jury but instead to put faith in the legal system for justice.