1-Hour Arrest

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

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."

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.

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 Observerasked 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.

« Previous Page
 |
 
1
 
2
 
3
 
4
 
All
 
Next Page »
 
My Voice Nation Help
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.

 
Loading...