Lawyer Alleges Bias in Case of Child Porn

Defense Team Wants Different Prosecutor

By Jonathan Mummolo (Contact)

Saturday, October 11, 2008

The attorney for a Loudoun County school official charged with possession of child pornography has filed a motion to remove the Loudoun commonwealth's attorney from the case, saying that the county's chief prosecutor has demonstrated bias and animosity.

Ting-Yi Oei, an assistant principal at Freedom High School, was arrested Aug. 20 on the felony charge. Law enforcement officials have said he was in possession of an inappropriate cellphone photo of a female student taken by another student. According to court papers filed by the defense, Oei obtained the photo as part of a school investigation into rumors that students were circulating nude photographs.

The defense motion seeking to have the office of Loudoun Commonwealth's Attorney James E. Plowman disqualified from prosecuting the case says that Plowman at one point told Oei's attorney that the photo did not meet the legal standard for child pornography.

Plowman disputes that claim, and his office has filed a rebuttal.

James J. Faughnan, a lawyer hired by Oei in May, wrote in an affidavit supporting the defense motion that "the female in the picture was not nude, and she could not be identified because the picture was taken from just below the shoulders to mid-thigh and did not include her head."

Oei obtained the photo March 14, and law enforcement officials were notified of it by someone else three weeks later, Loudoun sheriff's spokesman Kraig Troxell said. The Sheriff's Office charged Oei on May 5 with failure to report suspicion of child abuse or neglect, saying that he had not informed the child's parents, law enforcement or child protective services of the photo.

The charge, a misdemeanor that carries a fine of up to $500, was dropped. A grand jury indicted Oei in August on the felony charge of possession of child pornography, punishable by up to five years in prison.

In his affidavit, Faughnan said he was told by a prosecutor in Plowman's office June 16 that the felony charge would be pursued if Oei did not plead guilty to the misdemeanor and resign from the school system.

Faughnan wrote that in conversations he had with Plowman soon after that, "Plowman acknowledged that the picture was 'not true porn,' but, he claimed, 'it fits.' ."

He also wrote that Plowman said he had "daughters of his own" and was "concerned about this type of offense." According to the affidavit, Plowman also said that "he believed in the past that other Loudoun County Public School administrators had not reported alleged incidents to law enforcement when they should have."

Defense attorney Steven D. Stone, who filed the motion, wrote that Plowman was motivated by "his personal desire to protect his daughters" and "by his personal dissatisfaction with the manner in which he believed other Loudoun County Public School administrators had handled internal investigations."

In an interview last week, Plowman said the phrase "not true porn" was a "mischaracterization" of his words. He said there was sufficient evidence to warrant the charge.

"I can tell you I didn't say that," Plowman said. "A grand jury actually reviewed [the evidence] and indicted him."

In court papers responding to Stone's motion, Deputy Commonwealth's Attorney Nicole Wittmann said that Plowman's office had not demonstrated any bias or animosity and that the female student "is an identifiable minor."

"The image of the child does consist of sexually explicit visual material and therefore does meet the criteria of material" covered by the pornography statute, Wittmann wrote.

In a hearing Tuesday, Loudoun Circuit Court Judge Thomas D. Horne said he could not rule on the motion because Plowman's office practices before his court. Horne requested that the Virginia Supreme Court choose a judge from outside the circuit to make the ruling.

Oei is on paid administrative leave from his job pending the outcome of the case, Loudoun schools spokesman Wayde Byard said.

Tagged: child pornography, crime, Freedom High School , South Riding

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