1-Hour Arrest

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

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.

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.
Mark Graham
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 photo in question: Jacqueline Mercado and Johnny Fernandez say they took this image last October to memorialize the breast-feeding stage of their son's life. Below: The Lucca Madonna, painted in the 15th century by the Dutch master Jan van Eyck. Defense lawyers argued that while breast-feeding images are a second-degree felony in Richardson, they are also on public display in the finest art museums in the world.
The photo in question: Jacqueline Mercado and Johnny Fernandez say they took this image last October to memorialize the breast-feeding stage of their son's life. Below: The Lucca Madonna, painted in the 15th century by the Dutch master Jan van Eyck. Defense lawyers argued that while breast-feeding images are a second-degree felony in Richardson, they are also on public display in the finest art museums in the world.

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."

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10 comments
yumicpcake
yumicpcake

It's another example of people coming to this country and expecting us to conform to their standards and laws instead of obeying our laws.....I guess all of you commentators calling me an asshole are so ignorant to the point that they don't understand the human trafficking among children running rampant in this country. I guess you are all for molesting children!! Well suck a fat cock because I am all for our government trying to protect the children of this country.....you are all wrong, I am right....get a brain!!

yumicpcake
yumicpcake

Why? Because Lady, people molest and sell their own flesh and blood kids all of the time. They are just trying to be sure that you are not one of those kinds of couples. It's rough but fair, I think. Because of the fact that it's not a normal, one breast out, breast feeding. You are completely topless, which to Americans is suspicious, because most of us do not get completely topless to feed our children and we hold them in our arms instead of having them stand in front of us like a man sucking a breast in pornography. You're in America now, you have to conform to our laws. I am well aware that I sound very unkind but that photo is pretty bad!! Call me an asshole, I don't care one bit!!  

dwindykema
dwindykema

These people should sue Texas for this!  Unbelievable and disgusting that strangers could interpret breast feeding as  'sexual' in nature!  Even worse that law enforcement took ANY action on this.  

srbflowers
srbflowers

@yumicpcake you are no doubt the biggest asshole I have ever read anything from.  The world would be a better place if you just shut your mouth and never open them again.  The Americans in America would appreciate it very much.  Please conform.

katieroberts2150
katieroberts2150

@yumicpcake  your an asshole. I highly doubt you would think it was very fair if that was happening to you.  I have pictures of my children naked playing in the pool in the back yard and also pictures of me nursing my daughter. if you think there is something wrong with that then perhaps youre the perv here. It is my right as a mother to take pictures of my kids at different stages. 

a.t.shinn
a.t.shinn

@yumicpcake you are an asshole. this is the stupidest thing i have ever heard, and a completely legit example of the government and police department over stepping its boundaries. fuck you, fuck texas, fuck the people who think that this family deserves to be torn apart because their cultural values do not match with the fucked up ones we have in the US. the argument, you're in american now, is weak, at best, and culturally insensitive, and bigoted. seriously, get your fucking head checked. i hope you never have children.

 
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