1-Hour Arrest (When does a snapshot of a mother breast-feeding her child become kiddie porn?)

Dallas Observer ^ | April 17, 2003 | BY THOMAS KOROSEC

[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."

Part Two

Part Three

[goldstategop]

It depends on your personal evaluation. It was a private family picture never intended for publication or distribution. Today you can make virtual child pornography pictures and that's considered legal.

[moyden2000]

Funny how the CPS always manages to let the monsters go while railroading the innocent.

[logic101.net]

As Rush says, follow the money. Thanks for clearing up the twisted route it takes to get there though!

MARK A SITY
http://www.logic101.net/

[Capitalism2003]

"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."> I dunno...sounds just a little bit creepy.

[Under the Radar]

Yes, you are correct. We do have our priorities messed up in this society.

[TLBSHOW]

in Texas huh, yeah some country we have going don't we?

Welcome to Russia with love.......

[Ignatz]

Creepy in the U.S. perhaps, but maybe not-so-creepy in their home country.

[A. Pole]

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.

Same in Poland, same in all Europe.

[A. Pole]

in Texas huh, yeah some country we have going don't we?
[...]
Welcome to Russia with love.......

Russia?! Do you think that such thing could happen in Russia?

[jiggyboy]

On November 13, the day Richardson police "tossed" or searched Mercado's house

I don't like the sound of that: "tossed". Is that slang for "completely turned the place upside down", pulling every book out of the bookcase and leaving it on the floor, etc.?

[MonroeDNA]

"Two weeks ago, with a deadline looming for the state either to return the children or go back to court and ask to remove them permanently, Dallas Assistant District Attorney April Carter asked the judge in the case to require the parents to take the tests and attend the counseling before anyone goes home. "There are concerns we need to address," says Carter, who is representing CPS in family court. She says the store clerk, the Richardson police, the grand jury and others took issue with the photos and without further proof, "it's not clear whether this was sexual or cultural." She says she believes lie-detector tests would put that question to rest.

At press time, a hearing on that matter was pending. "We're going to fight it," says Lafuente, saying the state has dragged out the matter long enough and has had five months to ask courts to order tests or counseling. He says there might be a disagreement over appropriate parental behavior, but it isn't something that will be settled by psychologists or lie detectors.

Robert Herrera, who was appointed by the family court to represent the interests of the children alone, agrees. "My feeling is at this point the children should be returned to their parents," he says. "I don't know how strongly CPS disagrees with that, but I think this should be resolved without any more trips to court."

If what she and her boyfriend did was wrong, Mercado says, "I'm sorry. I didn't know these pictures were wrong...I just want my children back. They belong with us."

We will take your children, and you have to pass a lie dectector test to get them back, the goobernment says.

Be very afraid.

[MonroeDNA]

"Creepy in the U.S. perhaps"

We are all scratching our heads, wondering how this could be.

1. Liberals decided that the normal guardrails (shame) on certain horrifying human behaviors needed to be let down. Nobody can judge, etc.

2. People wussed out, and Guardrails came down.

3. People on the fringes started doing fringe things. Child rape, etc. Surprise. Normally the guardrails would have held them in.

4. Liberals (think Janet Reno) saw the problem, and decided everyone is capable of this, so they made laws forbidding breast-feeding pics.

5. Moral people from Peru get their kids taken away.

What is the cause of all of this? See #1.

[zook]

This is one reason I believe so strongly in the 2nd Amendment. No one will ever take my child while I'm alive.

[Cobra Scott]

"Two weeks ago, with a deadline looming for the state either to return the children or go back to court and ask to remove them permanently, Dallas Assistant District Attorney April Carter asked the judge in the case to require the parents to take the tests and attend the counseling before anyone goes home. "There are concerns we need to address," says Carter, who is representing CPS in family court. She says the store clerk, the Richardson police, the grand jury and others took issue with the photos and without further proof, "it's not clear whether this was sexual or cultural." She says she believes lie-detector tests would put that question to rest.

People, this is terrorism and extortion. CPS requires these things because they administer them and charge for them. Requiring a lie detector test which is not even admissible, that the parents have to pay for, that is nothing more than voodoo junk science, is extortion with no purpose. And if you aren't familiar with CPS counseling, the system is set up so that the parents will not be given the nod until they, and their entire family, is broke.

CPS is all about money, extorted through terrorism.

CPS is a terrorist organization, and all those who work for them are terrorists, IMO.