Child Porn? 2
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."
"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."
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