1-Hour Arrest

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."

"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.

"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]."