‘Sexting’ witch hunt

Told to investigate “sexting” at his Virginia high school, an assistant principal spent $150,000 defending himself from child pornography charges because he kept the evidence — a photo of a semi-nude girl found on a boy’s cell phone — on his computer.  Wired has the story:

Ting-Yi Oei, a 60-year-old assistant principal at Freedom High School in South Riding, Virginia was told to see if students were exchanging sexy photos on their cell phones. He found only one example: A boy showed him a photo of a topless girl with her arms folded in front of her breasts.

Oei says he showed the image to his boss, Principal Christine Forester, who told him to preserve a copy on his office computer for the investigation.

. . . Oei and the school security specialist interviewed more students, but were unable to find additional pictures or identify the girl in the photo.

When the boy who’d had the photo got in trouble for something else, his mother blamed Oei and called the police.

A month later, the first charges were filed against Oei: failure to report suspicion of child abuse, a misdemeanor. The charge alleged that Oei had a legal duty to report the girl’s photo to her parents, and to state agencies or law enforcement.

“First of all, nobody thought this was reportable,” Oei says. “Who would have thought this was suspected child abuse?”

Oei also hadn’t known the girl’s identity and therefore wasn’t able to notify her parents.

Loudoun County prosecutor James Plowman demanded that Oei resign. When the veteran educator refused, Plowman filed felony charges of child pornography, which could have put Oei in prison for five years and labeled him a sex offender for life.

 

Warned that their house could be searched, (Oei’s wife Diana) Curling went through the family photos to see if there were any baby pictures of their now-grown children in a state of undress. “Heaven forbid that a parent might think it was cute for a baby to play in a bubble bath and there might be an inappropriate part showing,” she says. “Luckily all of our rubber-ducky baby photos had the children covered in bath bubbles or something.”

After a year of hell, a judge threw out all the charges, saying the photo wasn’t pornographic.  The prosecutor is unrepentant.

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Comments

  1. The prosecutor should go the way of Mike Nifong.

  2. Hey! It’s all for the children, right? Grandstanding for higher political office has nothing to do with it.

  3. “The prosecutor should go the way of Mike Nifong.”

    I’m going to be the lawyer I am and split hairs. I’m a prosecutor and as fellow prosecutor I find this prosecutor’s behavior to be reprehensible. It does not remotely serve the interests of justice, and that’s what we’re supposed to pursue.

    However, as a matter of professional ethics, it may not be actionable by the Virginia Bar at all. If there is a good-faith basis that the evidence did constitute all the elements of the crime under the statute, it’s a perfectly valid exercise of prosecutorial discretion. It may be bad POLICY, but it’s a judgment call. It’s one I vehemently disagree with, but not remotely comparable to the Duke lacrosse players’ rape case.

    Only if you assume the evidence actually completely exonerates the defendant–under any fairly debatable interpretation of the statute–and that the prosecutor was aware of this, and prosecution then continued anyway, is this comparable to Nifong and grounds for disbarment. In between these two poles, there may be other facts and circumstances to say it would be grounds for professional discipline short of disbarment, such a public reprimand, probation, or suspension.

  4. Richard Aubrey says:

    I guess there would have to be other facts, by golly.
    Like…he had other pix? Nope. None found.
    Like he was soliciting other pix? Nope.
    Like he was a juicy target? Yup.
    I suppose a bar action would allow the prosecutor to explain just what other facts allowed a good-faith decision. Maybe that’s why the bar, as a matter of professional courtesy, isn’t going to pester him.
    I hate to wish anybody bad luck, but in this case, I’ll wish leprosy.

  5. Andy Freeman says:

    > However, as a matter of professional ethics, it may not be actionable by the Virginia Bar at all.

    Thanks for demonstrating that the rules are wrong.

    There are two ways to fix them – lawyers can fix them or the public can fix them. I’d rather that they lawyers do so, but if they fail….

  6. corsair the pirate says:

    >In between these two poles, there may be other facts and circumstances to say it would be grounds for professional discipline short of disbarment, such a public reprimand, probation, or suspension.

    How about tar and feathering? The school admin had his life ruined by this overzealous jerk and no one has to pay any price? Just call a “do-over” and walk away?

    I live in Loudoun County and my child attends Freedom High School and I will be the first one out there pushing for this guy to not be re-elected next time he comes up. I’ll vote for some other douchbag ambulance chaser before I mark the ballot for this tool.

  7. Richard Aubrey says:

    Ya think the prosector might swap dropping charges if the perp downloaded alllll the evidence to Plowman’s home computer?

  8. Gee, a prosecutor is more interested in scalps than in justice.

  9. John Thacker says:

    However, as a matter of professional ethics, it may not be actionable by the Virginia Bar at all.

    It’s my opinion that all decisions about professional ethics for lawyers and legal malpractice should be decided by impartial boards of medical doctors. It’s only fair, since lawyers and the courts get to make decisions about medical malpractice.

  10. “The school admin had his life ruined by this overzealous jerk and no one has to pay any price?”

    When prosecutors violate their professional ethics, the remedy is a bar complaint. When they engage in bad policy, the remedy is to vote an elected prosecutor out of office, or get an appointed prosecutor fired, i.e., the same remedy that we apply to any other public servant who does something completely outrageous and idiotic that may nonetheless still be technically legal. Just as you said. Campaign against him. Contribute to his opponent. Make the guy a pariah: it’s definitely called for.

    “…lawyers can fix [the rules] or the public can fix them. I’d rather that they lawyers do so, but if they fail…”

    The process for changing rules of practice and procedure varies very widely from state to state. One of the few things New York does right is make them just be statutes like anything else. Here in Florida, they’re promulgated by the state supreme court and anything procedural is untouchable by the legislature. Most states fall somewhere in between. When I worked for the Florida Legislature, I drafted an amendment to the state constitution to take away the court’s rulemaking power and hand it over to a judicial conference with the legislature having the last say (essentially the model of the federal system), so you can probably can tell which side of that divide I fall on.

  11. Kirk Parker says:

    The prosecutor is unrepentant.

    Wow, didn’t see that one coming.

  12. Andy Freeman says:

    > The process for changing rules of practice and procedure varies very widely from state to state.

    However, in every case, the bar has significant influence.

    Let me suggest that tempers are getting short in general and lawyers don’t have much of a reserve of good will to shield them.

  13. Richard Aubrey says:

    Andy.
    Lawyers may be as deluded about that as are journalists who think people believe them.

    IMO, the bar won’t push this because to do so would demonstrate the guy had zilch. Leave it alone and you can gas on vaguely about unknowns and privacy issues and so forth.

  14. Mark Roulo says:

    If there is a good-faith basis that the evidence did constitute all the elements of the crime under the statute, it’s a perfectly valid exercise of prosecutorial discretion.

    I understand this. I think. What I don’t understand is how ONE picture can be the subject of a prosecution/investigation for a whole year, and then the DA decides that the ONE picture isn’t pornographic and thus there is no case. How can one spend a whole year deciding whether a photo meets that criteria without it being invalid discretion? Is this like the “not a suspect” phrase meaning, “we are 100% certain that he did it, but if we say so we have to read him his Miranda rights and we don’t want to do that yet?” Or is there some other subtlety that non-lawyers (like me) don’t get?

    Thanks,
    Mark Roulo

  15. When prosecutors violate their professional ethics, the remedy is a bar complaint. When they engage in bad policy, the remedy is to vote an elected prosecutor out of office, or get an appointed prosecutor fired

    And what’s the remedy for the victim’s $150K in outlays for defense?

    Drawing and quartering the DA is emotionally satisfying, but fails to make the victim whole.

  16. tsiroth says:

    Mark Roulo:

    Err, the DA never changed his mind about the picture being pornographic. A judge threw out the charges.

  17. Mark Roulo says:

    Err, the DA never changed his mind about the picture being pornographic. A judge threw out the charges.

    Then that ‘spains it! Thanks.

    -Mark Roulo

  18. BTW, the prosecutor should go the way of Nifong because of the utterly contradictory nature of the charges.

    failure to report suspicion of child abuse, a misdemeanor. The charge alleged that Oei had a legal duty to report the girl’s photo to her parents, and to state agencies or law enforcement.

    Doing this required keeping the picture until the girl could be identified.  Oei was also ordered to keep the picture by his boss.

    Oei also hadn’t known the girl’s identity and therefore wasn’t able to notify her parents.

    In other words, Plowman went after Oei because Oei did what he had to do in order to be able to do what Plowman demanded, not to mention he was following orders from superiors who were not charged.  Had Oei erased the picture, no doubt Plowman would have charged him with obstruction of justice.  Damned if he did, damned if he didn’t.

    This is why Plowman should be fired, sued for malicious prosecution, and ideally disbarred.

  19. Going after kids who send such messages, and throwing child pornography charges at them, is just as bad–and prosecutors have been doing that for at least the last year, too.