TX- 1-Hour Arrest

When does a snapshot of a mother breast-feeding her child become kiddie porn? Ask the Richardson police.

4-17-2003 Texas:

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."

There was not.

Police and child welfare files contain no criminal histories, no hint that there were other suspicions or evidence of child abuse or neglect. Mercado and Fernandez had not been in the United States long enough to have histories of much of anything. She arrived in August 2001, moved in with her parents in Richardson and took a job cleaning a nearby Wal-Mart in the middle of the night. Johnny arrived about 13 months later and went to work cleaning stores, too, before moving on to a job in a budget steak house.

By the time Chatham became involved in the case, which his partner Bill Stovall took on without a fee, the parents were devastated and penniless. "I think the police department and the DA's office select people to prosecute who have the least ability to defend themselves," says Chatham, who says he took the case on principle. "If these pictures were on their way back to some big home in Highland Park, they would have turned around and left. They were going after easy marks."

Mercado and Fernandez--who were released on bonds of $10,000 and $12,500, respectively--borrowed money from their family to get out of jail and drew comfort from the help and encouragement they received from their church.

Maybell Palacios, Mercado's aunt, says her niece is as dedicated a mother as she has ever seen. "She'd be working seven days a week at nights, and when she'd come home tired she had time for her children. To feed them. Wash them. Do their clothes."

Victor Jaeger, pastor of the Iglesia Adventista del 7 Dia de Richardson, says, "The community has been very supportive of them. They see it as a big misunderstanding." About a third of his Spanish-speaking Seventh Day Adventist congregation in blue-collar East Richardson is Peruvian-born.

The pastor says he was prepared to testify on the couple's behalf and explain what appears to him to have been a cultural misunderstanding. Jaeger, who grew up in Peru, says breast-feeding is culturally important in his native country and considered acceptable to do in public, particularly in the country's jungle regions. "My cousin sent me a picture of her newborn, and it was of the baby being breast-fed," he says. "As someone who has lived here for 20 years, I asked myself, 'Why did she send me that picture?' To her, it was nothing."

To memorialize the act of breast-feeding in a snapshot is as common in Peru as wanting to save a photo of a first step, or a first two-wheeler, or a first baseball game, he says.

Jaeger says Mercado and Fernandez, who both have roots in rural Peru, "sat in my office crying" on several occasions. He has come to the conclusion that they are good parents caught in an awful bind.

Their most pressing problem was the breast-feeding picture, which the indictment characterized as sexual, "to wit; actual lewd exhibition of...a portion of the female breast below the top of the areola, and the said defendant did and then employ, authorize and induce Rodrigo Fernandez, a child younger than 18 years of age, to engage in said sexual conduct and sexual performance." In other words, says Chatham, the act of simulated breast-feeding, captured on film, was being portrayed as a sex act. "They're saying the guy who took the picture is a sicko and wanted a photo of this to satisfy his sexual desire."

Through the ages, Chatham says, images of breast-feeding have been viewed more as art than deviancy.

"Look at this," he says, handing over a print of The Lucca Madonna, painted in 1436 by the Dutch master Jan van Eyck. The painting, depicting an enthroned Mary suckling the baby Jesus, hangs in the Stadelsches Kunstinstitut, an art museum in Frankfurt, Germany. "My sister-in-law was an art major in college, and when I told her about this, she said, 'Andy, there are thousands of great works of art portraying the breast-feeding of children. They grace the halls of great art museums around the world. I could have used dozens of others.'"

Adds Stovall, his law partner, "I was just up at Z Gallery last weekend, and there's a print of a woman breast-feeding."

The breast-feeding Madonnas no doubt were done with live models, Chatham says. "You may think it's kooky, but through the ages this is how we've portrayed the bond between mother and child."

In late February, Chatham drafted a legal motion seeking dismissal of the indictments, using The Lucca Madonna as his star exhibit. "The material at issue falls squarely within the ambit of the First Amendment's protection," Chatham wrote in his brief. "The portrayal of the suckling child is found in countless numbers of artwork. Whether the medium is canvas, marble or Kodak film is irrelevant for the purposes of First Amendment protection."

The motion was pending and being studied by an assistant prosecutor in late March when the Observer asked Bill Hill about the Mercado-Fernandez case. "I'll look into it," he said. A week later, he said his assistant thought the case would "wash out of court" on The Lucca Madonna motion, so Hill says he ordered him to dismiss it. "I looked at those pictures and there were some quirky things to them, and I can see where the grand jury had probable cause. But a woman has her breast exposed, and her child is there. I'm not sure that is a prosecutable offense," he says. He says his assistant agreed the case was "weak."

Hill did not fault the work of his assistants who presented the case to the grand jury, or the police who now are reportedly perturbed that their case was dumped. The charges and the couple's arrests were no doubt "traumatic," he says, "but in this instance the system worked."

Not if you are Rodrigo and Pablizio, who have not been returned to their mother yet.

Lieutenant Bill Walsh, head of the Dallas Police Department's youth and family crimes section, says calls from photo labs and computer repair shops are a useful tool in policing child sexual abuse and child pornography. His department makes several important cases a year after being alerted by technicians who stumble across the evidence.

"The law in Texas says all adults must report suspicion of child abuse, but it doesn't set out what the boundaries for that are," he says. Once detectives review the pictures, Walsh says, it is usually a "no-brainer" which ones are the work of abusers and child pornographers and which are innocent pictures of bathing children and "the cute one of the kid whose bathing suit fell off when he ran through the sprinkler." Naked baby pictures and photos of toddlers' backsides are on display in work cubicles and office credenzas all over town.

"We don't see many sticky cases," Walsh says. "Child porn usually isn't subtle."

A photo of a mother breast-feeding, or a couple of smiling kids getting ready for a bath, or, separately, two nude consenting adults, "aren't something we're going to be too concerned with," he says. "The most important thing is to look at the pictures in context. Under what circumstances were they taken."

To make a case against Mercado and Fernandez as parents, Richardson police and CPS investigators made no mention in their reports of any other photos on the four rolls, such as the ones of five kids at a birthday party. They focused only on the naked ones.

"It's like they took something from each one and twisted it to try to make a case," says Lafuente, who is handling the custody side of the couple's legal problems.

In his report to CPS, Richardson Detective John Wakefield wrote, "I viewed the photographs and had concern of possible sexual abuse, inappropriate sexual behavior and possible child pornography from nine [of them]."

The four photos in which Mercado is seen with her forearm closely covering her chest, for instance, Wakefield described thusly: "Mercado is in the photograph topless and touching her breast." In two others he notes that the older boy was "touching his genital area." Mercado told Wakefield, and anyone else who cared, that the boy had a rash and was constantly scratching himself there. She produced a tube of prescription medication to prove he was being treated for the problem, police reports show.

Her explanations and defenses came long before she was forced to hire lawyers, and they have not changed since the day the Richardson officers knocked on her door.

Lafuente says the actions of CPS and criminal authorities tended to reinforce each other, to the family's detriment, as the case has gone along. Meanwhile, nobody was interested in Mercado's and Fernandez's explanations. "I wanted Jacqueline to waive her Fifth Amendment right and testify before the grand jury. They didn't want to hear from her," he says. CPS reports, meanwhile, make prominent mention of the fact that the couple had been indicted on felony charges.

Says Stovall: "The very accusation in this case carries such a bad taste that they automatically assume the worst. I tell you they are charged with possession of child pornography, and you automatically envision the worst possible scenario."

Lafuente says he has been willing to concede that the photos show behavior that some people of a conservative nature might consider inappropriate, such as a mother bathing with her 4-year-old, or being topless around the kids. Yet those hardly rise to the level of sexual abuse. The family lives together in one room, making privacy difficult, but that does not mean Mercado and Fernandez are not loving parents, he says.

At a December 5 hearing on CPS's removal of the children, Lafuente reached a compromise with the state to put them in the temporary custody of Mercado's former husband, who also lives in the Dallas area. Mercado says that in the five months since, he has given her liberal visitation rights, but she and Fernandez cannot be left alone with the children, nor can the children sleep at the couple's house.

They also agreed to attend "group treatment for sexual issues" and submitted to extensive psychological exams.

At the group counseling, Mercado says, she has learned that kids in the United States are subject to the most horrendous abuse. "Their parents are on drugs...They're left with relatives who molest them. It's horrible." None of it seems to apply to her and her boyfriend, she says, although they say they attend the sessions regularly and try to partake.

"It's about as useful as tits on a bull," sniffs Chatham.

In their psychological exams, which they made available for this report, the only problems the experts could discern in interviews with the parents were those heaped on them by CPS and the police. And those, too, seemed to be held against them in the less-than-empirical world of psychoanalysis.

"When asked about problems occurring in his life currently, Mr. Fernandez states that the children have been removed, there is little money for lawyers, and it's all a big injustice," wrote Robert Antonetti, a Dallas psychologist who interviewed the couple earlier this year. "He reported currently feeling anxious, angry at the injustice he is enduring and fearful of what may happen. When asked about coping with stress he said he's been praying a lot."

In his summary and recommendations, Antonetti mentions no evidence of sexual deviancy in either parent. Instead, he concludes that Fernandez "feels very vulnerable to criticism and judgment."

The accusation that you're a sexual deviant who victimizes his own children might tend to do that.

The psychologist divines from his own psychological tests--and no material evidence whatsoever--that Fernandez appeared to be so "anxious to please" that he might be hiding something. "The profile suggests the probability that he attempted to present himself in an improbably favorable light," Antonetti concludes. Hence, the state-hired Antonetti recommended Fernandez be made to take a polygraph test before getting his son back. He recommended Mercado should be hooked up to one, too. He further recommended both should undergo parenting classes, individual counseling and couples counseling.

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." ..more.. by Thomas Korosec