Posted on 04/21/2003 5:54:39 AM PDT by CFW
1-Hour Arrest
When does a snapshot of a mother breast-feeding her child become kiddie porn? Ask the Richardson police.
BY THOMAS KOROSEC
thomas.korosec@dallasobserver.com
Jacqueline Mercado, a 33-year-old Peruvian immigrant, took a few photos of her young children at bath time. A week later, Richardson police were rummaging through her house for kiddie porn, and a state child welfare worker came to take her kids away.
The service was fast, the judgments even hastier. Never did Jacqueline Mercado imagine that four rolls of film dropped off at an Eckerd Drugs one-hour photo lab near her home would turn her life inside out, threaten to send her to jail and prompt the state to take away her kids.
For Mercado and her family, last fall was a happy time, one they wanted to record and save in the venerable tradition of the family photo. Johnny Fernandez, Mercado's boyfriend, had just emigrated from Lima, Peru, ending a yearlong separation, and on top of that, it was their son's first birthday.
The photographs they took over several days in late October included pictures of Fernandez reunited with the family at their modest home in suburban Richardson. Others captured their 1-year-old son Rodrigo, and 4-year-old Pablizio, from Mercado's earlier marriage, playing in a neighborhood park. Using the camera's timer, they also took three snapshots of themselves, naked in their bed. They arranged their bodies in ways that showed less flesh than most freeway billboards.
A half-dozen others recorded the kids at bath time. Fernandez took several photos of the boys "playing around," naked and innocent, with the oldest flashing a big smile. Mercado, who says she often bathed with the kids, is in several of the shots unclothed from the waist up, holding her arm modestly across her bare chest.
In one--the photo that would threaten to send Mercado and her boyfriend to prison--the infant Rodrigo is suckling her left breast.
After Mercado dropped off the film for processing, a technician viewed the images and decided they were "suspicious," according to a police report. As required under Texas law, he immediately contacted local police. Mercado says that when she went to pick up her pictures, the clerk told her there would be a delay, and then only returned three of the four sets of prints.
To Richardson police, who arrived at the store that afternoon and apparently made up their minds from the content of the pictures alone, this was nothing short of a felony case of child pornography. "We thought they contained sexuality," says Sergeant Danny Martin, a Richardson police spokesman, explaining why two Richardson police detectives began pursuing a criminal case. "If you saw the photos, you'd know what I mean."
With nothing else to support their contention that the photos were related to sex or sexual gratification, the police and the Dallas County District Attorney's Office presented the photos to a grand jury in January and came away with indictments against Mercado and Fernandez for "sexual performance of a child," a second-degree felony punishable by up to 20 years in prison. The charges centered on a single photo, the breast-feeding shot. Fernandez and Mercado say they took it--although the child had ceased breast-feeding--to memorialize that stage of their baby's development.
"We wanted to see if he would take it, and he did," says Mercado, explaining through an interpreter that it was a spur-of-the moment notion to which they gave little thought. "Johnny never saw the child breast-feeding, so this was for memories. For us."
Mercado, who brushed back strands of brown hair from her reddened eyes as she spoke, has a story that has not changed from the start. She told the Richardson police officer who responded to the store's call that she had always taken pictures of her children nude, and that it wasn't uncommon in her native Peru to do so. They were innocent baby pictures, taken for the family's benefit, she said.
Five days later, when a state child welfare investigator and two detectives arrived at her house, Mercado again insisted that she saw nothing wrong with the photos. She allowed the group to search the couple's cramped room, and the detectives went through everything, including their photo albums, apparently looking for more evidence of child porn. They found nothing.
"We fought so hard to come to this country," says Mercado, a 33-year-old who was a nurse in Peru and aspires to become licensed in the United States one day. "For this to happen is unbelievable."
Andrew Chatham, one of three lawyers working on behalf of Mercado and her boyfriend, says it is difficult to imagine a clearer case of over-reaching by police and prosecutors. "Their theory, which is supported by nothing, is that these pictures were taken to satisfy the boyfriend's sexual desires. These aren't pictures that were peddled on the open market. This wasn't on someone's Web site. This is just a mother who took a roll of film and left it off at Eckerd's. The state used them to arrest her, indict her for a felony and take away her kids."
On November 13, the day Richardson police "tossed" or searched Mercado's house, a caseworker with the Dallas County Child Protective Services Unit of the Texas Department of Protective and Regulatory Services took custody of the children and recommended to a family judge that they be placed in a foster home. The caseworker's notes state that a supervisor, acting on the content of the photos alone, decided that "the children needed to be removed from their mother's care."
Her hard-rubbed eyes drooping with worry, Mercado says she told the caseworker, "Please don't take our children. We love our children."
In the months since, one of the couple's most onerous problems has been resolved. In late March, a week after the Dallas Observer asked District Attorney Bill Hill about the case, he ordered the criminal charges against both parents dropped. "It has some gray areas to it, but it doesn't rise to the level of a crime," Hill said. He said justice comes from more than isolating facts and interpreting them in a way to make them narrowly fit into a criminal statute.
Still, at press time, child welfare authorities continue to maintain control of the boys, even though a lawyer appointed to represent them says he believes they should go home. In its latest legal filing, the state said it would not consent to releasing the boys until the couple jumps through more hoops, including a lie-detector test they must take at their own expense.
"They ripped out my heart," Mercado says. "Even if we get them back, I don't know how we'll recover from what's been done."
"How could they accuse me of doing something with our own children?" says Fernandez, a lanky 35-year-old who worked as a hospital technician in Peru before embarking on his disastrous start in Texas. "How can they accuse us of being something we're not?"
It wasn't difficult at all.
When Andrew Chatham first learned of the Mercado-Fernandez case from lawyer Steven Lafuente, who the family hired at the outset, he was certain there must be more to it than a picture of a mother with an infant's lips on her breast. "I wondered what I wasn't getting," he says. "There had to be more."
Welcome to the Police State, Jacqueline. We are no longer free.
a technician viewed the images and decided they were "suspicious,"
Let me be the first to call this jack@ss a complete "boob"
We would probably know you have your mind in the gutter. welcome to amerikka.
here's hoping they get sued out of existence.
Still, at press time, child welfare authorities continue to maintain control of the boys, even though a lawyer appointed to represent them says he believes they should go home. In its latest legal filing, the state said it would not consent to releasing the boys until the couple jumps through more hoops, including a lie-detector test they must take at their own expense.It sounds like the "child welfare" people are trying to cover their own butts and protect their own turf, which isn't suprising. Some of these agencies are as out of control as ATF and DEA, and just as willing to stomp on the rights of citizens to protect and expand their juristiction.
I've always thought that personally identifying these types of out of control bureaucrats and "creatively" targetting them is the best approach. For example, "wanted" posters for kidnapping could be made up for overzealous CPS types.
-Eric
bttt for part 2 and 3 later . . .
You are correct, and there is a logical reason for this, so venal and greedy that it should want to make you shut the place down:
My wife ran a newborn nursery in a poor section of San Jose, CA. She saw this all the time; women in their early 20s, obviously on drugs, having had fourth or fifth pregnancy, and she couldn't get the agencies to do a thing. It's one of the things that made her a conservative. White kids from nice homes are subjected to tyranny while obvioulsy abused children in troubled homes cost the agency money and don't get help.
Yes, I think this picture could be considered "questionable judgement." Should they have been arrested? Probably not, but the story isn't as cut and dried as we all would like. The child was a weaned toddler, not an infant who was still nursing. Child abuse? Probably not. Disturbing? Yes, I would have to agree. It has a high "ewwww!" factor, but the state shouldn't be involved because of that.
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