Sunday, April 27, 2003
Copyright © Las Vegas Review-Journal

COLUMN: Vin Suprynowicz

Better not try breast-feeding in Texas

The "service was fast, the judgments even hastier," began Thomas Korosec's April 17 feature, "1-Hour Arrest," in the 110,000-circulation weekly Dallas Observer. "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 33-year-old Peruvian immigrant Mercado and her family, "last fall was a happy time," the Texas weekly explained, "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 Ms. Mercado dropped off the film for processing, a drug store technician viewed the images and decided they were "suspicious," according to a police report.

Under those circumstances, Texas law compels photo clerks to call the police. Mercado reports that when she went to pick up her pictures, the clerk told her there would be a delay, and 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,' said Sergeant Danny Martin, a police spokesman. ... `If you saw the photos, you'd know what I mean.' "

Actually, reporter Korosec not only saw the photos, his newspaper published them (see www.dallasobserver.com/issues/2003-04-17/feature2.html/1/index.html.)

In fact, the energetic young attorneys who took on the case free of charge for the low-income family decided that rather than taking an apologetic posture, the way to handle this matter was to enter into evidence images of classic paintings hanging in some of the most famous galleries of Europe, showing the Virgin Mary giving suckle to the infant Jesus, daring the perverts of the Richardson Police Department to explain how this constitutes pornography or demonstrates the sole and specific purpose of catering to anyone's "prurient interest."

The photo where the young mother demurely covers her chest with a clenched forearm? Police described this as a woman "touching her own breast." In two others, police noted the older boy was "touching his genital area." Mercado told investigators the boy had a rash and was constantly scratching himself. She produced a tube of prescription medication to prove he was being treated for the problem, police reports show.

The breast-feeding? That was described in the indictment as "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."

Victor Jaeger, pastor of the Iglesia Adventista del 7 Dia de Richardson, told Korosec 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. 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, he explains.

Police searched Mercado's house last Nov. 13. On that same day, a child protective caseworker seized the children, acting on the content of the photos alone.

The good news? (And any defendant whose attorney ever tells him not to go to the press and make a stink, for fear of "crossing" police, judges or prosectors, please take note.) The minute Korosec went to elected District Attorney Bill Hill for a comment on the case, prosecutors and "child welfare" bureaucrats began to fold their tents and head for the hills for all the world like Iraqi irregulars hearing the 3rd Infantry was in town.

The criminal charges? Dropped the very day the Observer story came out. The youngest child? Returned to his parents within a week.

"The publicity has rolled back the story pretty much as fast as we've asked the questions," Korosec explains.

"These were people who were least able to defend themselves; they were very fortunate to connect with a number of very competent attorneys. ... They were the ones I heard about the case from, and I really think their whole approach was to get people like myself to shed some light on this case, that this case would not stand up to public scrutiny."

Vin Suprynowicz is assistant editorial page editor of the Review-Journal and author of the books "Send in the Waco Killers" and "The Ballad of Carl Drega."