Snapshot of breast feeding mother grounds for arrest for "porn" by Texas police

[Dave Farber <dave () farber net>]

If these facts are right and the Dallas Observer is a decent paper , then
one should avoid Richardson like the plaque. I thought texans respected the
family.

Dave


------ Forwarded Message
From: "Robert J. Berger" <rberger () ibd com>
Date: Fri, 25 Apr 2003 14:29:53 -0700
To: Dewayne Hendricks <dewayne () warpspeed com>, Dave Farber <dave () farber net>
Subject: **SPAM** Snapshot of breast feeding mother grounds for arrest for
"porn" by Texas police

[Something that sounds like it comes from the religious police of a
fundamentalist state than what we should expect in the US. T - Rob]

1-Hour Arrest
When does a snapshot of a mother breast-feeding her child become kiddie
porn? Ask the Richardson police.
BY THOMAS KOROSEC

> From dallasobserver.com
Originally published by Dallas Observer Apr 17, 2003
©2003 New Times, Inc. All rights reserved.
http://dallasobserver.com/issues/2003-04-17/feature2.html/print.html

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 legal team: Steven Lafuente, Bill Stovall and Andrew Chatham all went to
work on the Mercado-Fernandez case.

 
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."

<snip>
--
Robert J. Berger - Internet Bandwidth Development, LLC.
Now back in California from Tokyo
Voice: 408-882-4755 eFax: +1-408-490-2868
http://www.ibd.com



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