So, is it safe to assume that you at least agree that the law was grossly misapplied in the case cited in the OP?
For what it’s worth, I don’t think we should get rid of child porn laws either. Just be very, very careful about how they are applied.
Hamlet, you’ve characterized my position as “mindless” and DrDeth’s as “inane”. Please discontinue the ad hominem. It does not become either you or the forum.
KellyM and Avalonian, I agree with you from everything I’ve read about this case that the law was grossly misapplied in this case. I haven’t seen the picture so I can’t say for sure, but it sounds like this is an example of overzealousness on the part of the officers, the prosecutors and the grand jury. I don’t think they should be fired, because I have no idea if this is indicative of how they conduct themselves in a vast majority of cases. Without any additional information, calling for their immediate discharge is extremely premature. And KellyM, I was very clear to call the arguments you made, (that we should get rid of child pornography laws because of the potential of misapplication) inane and mindless, but I never personally attacked you or Dr.Deth. If you took it that way, I apologize, but I still think your arguments are without merit.
Bricker, and any other lawyers or people familiar with the procedural methods used by Grand Juries, any opinions on how to keep Grand Juries from being railroaded by DA’s? I understand that they usually don’t have much evidence at the time they go to the Grand Jury(after all, without an indictment they can’t really get warrants or do searches) and any capable defense lawyer could probably shred a DA’s case before a GJ if they were allowed to speak during the indictment process. This, in theory, would lead to less indictments, which, again in theory, might lead to more guilty people walking free. Still it seems cases like this would become almost impossible rarities.
A couple questions of fact as well. Does a Grand Jury have to be unanimous to get an indictment? What standard of proof is used? How many indictments are actually refused by Grand Juries? Who selects the Grand Jury? Does a prosecutor get to review Grand Jury candidates like counsel does during an actual trial?
Just trying to see if this kind of thing can be headed off in the future. As for the nurse-in in Richardson, looks like it’s coming together. Better get my camera.
Enjoy,
Steven
Grand juries decide whether there is probable cause to accuse someone of a crime. The grand jury in this case would have been constituted by one of the district judges in Dallas County - prosecutors in Dallas County have no say in who sits on one. It is not uncommon to find a criminal defense lawyer or two on a grand jury. Unless it has changed recently, Dallas County has four grand juries sitting at any one time.
I should have done it this way. Many answers to questions about grand juries in Texas can be found in the Code of Criminal Procedure. You will see that prosecutors have some grounds to challenge member, but those are fair more limited than the challenges available to a jury at trial.
CHAPTER NINETEEN—ORGANIZATION OF THE GRAND JURY
CHAPTER TWENTY—DUTIES AND POWERS OF THE GRAND JURY
I never advocated that. Please do not put words in my mouth and then call me names based on what you would have me say.
I wonder… just how absolute are, in TX:
(a) the laws that require photolabs to turn over suspicious material to the authorities – what are the sanctions against the photo processors for making a judgement call to NOT report, if the authorities later decide the case would be worth pursuing?
(b) the rules about when cause-for-arrest must be found and charges brought to trial – is the DA, Grand Jury, or trial judge impeded from dropping/dismissing a K-P inquiry/case based on sheer common sense?
© the rules about CPS taking over custody on account of a parent’s record even if fully cleared? can a court who clears the parent of charges order CPS to return custody?
It’s really a hard issue here… normally, I’d say that just as there is claimed a “good faith” clause for when police conduct a search, there should be a “common sense” clause for cases where it’s evident to a reasonable person that nothing really wrong is going on.
HOWEVER… the sad part about it is that to a lot of the public, “this is obviously a misunderstanding” and “oh, it’s just an eccentric quirk” is seen as the ways that “upstanding citizens, respectable pillars of the community” get away with sweeping under the rug things the less-influential can’t. And returning kids to parents who have been “cleared”, alas, at times involves returning them to parents that later do get into further trouble – and that doesn’t just mean sex offenses, but things like drug crimes or welfare fraud or whatever. And when that happens there is the wailing and gnashing of teeth about “soft” laws, “soft” judges, etc. not protecting the children.
So the legislator and the enforcement official feel the need to be seen “doing something” and the “doing something” is often to make enforcement inflexible and intrusive.
(BTW, I’m with DrDeth on the plea-bargaining situation: the bargain has to be reasonably realistic or it’s contrary to justice)
Please accept my apologies. My reference to mindless was a misinterpretation of your statement “these laws,” and I thought you were referring to Child Pornography laws. Again, I’m sorry for my misreading.
JRDelirious, I don’t know about Texas, but I’ve seen CPS in Indiana blatantly ignore a strongly worded suggestions from a judge in open court that they investigate whether a child that the court believed was being neglected but which the court had no jurisdiction over (a half-sibling in a divorce case who was not a child of the marriage and thus not subject to that court’s jurisdiction; the child that was a child of the marriage was made a ward of the court). CPS does what it wants, and only what it wants, and it doesn’t matter to them what anyone else thinks is right.
In case anyone is interested this is from one of the attonerys handling the case regarding funds for the family.
Quote:
Here’s an update from one of the family’s attorneys:
I thank you for your many kind remarks and concerns over the well being of the Mercado family. I have been overwhelmed by the responses. Jackie and Johnny thank you for your thoughts and prayers. Slowly, I believe their lives will begin to return to normal. Currently, we have enrolled them in counseling, not to address allegations of wrongdoing as the government wanted, but to help them with their grief over the matter. Although, I can not go into too many specifics, I can report their counselor is on our side and indicates nothing but a positive outlook. Finally, I informed the Court and CPS of the absurdity of requiring a lie detector “test” and that demand has been withdrawn.
Many of you have inquired about a defense fund in order to see that their children are finally returned to them. I contacted their church about this. However, due to their small staff, they did not believe they were able to maintain such an account. Therefore, I have set up an account through my office trust account. The account is the Mercado Defense Trust Account. All monies collected will be used to ensure the return of their children and to eliminate all record of the arrest and charges from their record. The remainder will be used for counseling of the children and for family support. The address is:
Stovall & Chatham
Mercado Defense Account
2200 North Lamar, Suite 301
Dallas, Texas 75202
I promise to keep you updated as to the children’s status, the family’s status and the status of the court proceedings. I am, optimistically, hoping the family is reunited before May 15.
Please feel free to forward this e-mail or e-mail me with any questions about the proceedings.
Andrew M. Chatham
Again,
Melissa
Thanks for that update, Melissa… I’m still mad that the whole thing happened in the first place, but I’m glad that they’ve got a good lawyer to defend them.
Right- but since “lewd exhibition” can & has meant, in the eyes of a police officer or a Prosecutor = “simple nudity”, then the law is wrong- and in the form it is in- must be gotten rid of. Nudity is IMHO never “lewd”, but others think it so.
Hamlet- you can read. Do so. Look down at the bottom of my post. See where is says we should STRONGLY enforce the laws against those who “force kids into hadcore sex acts”? How would that equate into “making child porn legal”?
I want real KIDDIE PORN to be as illegal as hell, but the current law is silly & morally wrong, and must go. Let’s replace it with a GOOD child pron law- one that makes CHILD PORN illegal, and not pics of a nursing mom- or an art foto book with innocent pics of simply naked kids. or pics of your baby in the bath. It’s a bad law, and it tramples on the rights of innocent law abiding citizens- all because some blue nosed DA somewhere things “nudity= lewd”. Hundred, if not thousands of innocent dudes have been harrassed, arrested or even convicted under this very bad law. It has to go- and we have to replace it with a GOOD anti-child-porn law. One that makes it clear that “nude” does NOT = “lewd”.
First of all, I never knew I was that controversial or even well known enuf to have someone always in full disagreement with me. Second of all …You know of me?? 
To use Robb’s quote of the law, it specifically states that there should be “sexual” content in any “performance” (staged photograph) or conduct to warrant an arrest or even the removal of the children from the mother’s care. The DA is using its office to persecute people who are more of a liberal attitude than what the DA can tolerate. As any Boob would note, breastfeeding is not sexual.
i know you agreed with me but its people like this DA that burns me because real pedophiles are in all probabity laughing while they go about their evil unseen by this incompetent DA.
Getting rid of the part of the definition of child pornography that deals with nudity would leave a lot of abuse uncovered. You don’t need actual penetration to make a photograph of a child pornographic. If you can’t envision a pose that would be lewd, even though it protrays “simple nudity” I would suggest you need to surf the net more. I could provide links, but I’m pretty sure that is frowned upon here. Now think of a 10 year old in one of the poses, and I think you can understand the harm to the child of having that picture forever memorialized. As I said before, nude does not necessarily mean lewd, but it can, and that’s the kind that this legislation does, and should, regulate. The fact it was apparently misapplied does not mean it should be done away with.
I took some naked or semi-naked pictures of my daughter when she was younger, in the bath and after one of our extremely messy Naked Painting sessions (she tended to make such a mess that my procedure was to just strip her off and paint in the buff, often letting her paint herself if she wanted to). In one pic, just as I clicked, she went to scratch her groin area. I was pretty anxious when I sent the negatives to be developed. Thank [DeityOfYourChoice] that I don’t live in Texas!
I do think this is a tricky area, and vice cops are undoubtedly primed to see wrongdoing. They may even have seen real paedophiles try to use ‘cultural differences’ to attempt to cover up child porn. If they only got the film with the naked pics on too (as appears from the report), it would have looked much worse.
While for me that makes their actions more understandable, it should never have got this far. That they’re still withholding the children is unjustifiable. It’s as though they can’t admit that they’re wrong and are intent on proving the Mercados guilty of some parenting fault. No parents are perfect and many would fail such prejudiced psychiatric testing, so that all they could find was ‘he seems too nice’ indicates that they are rather good parents, IMHO. Or would be, if they had the chance.
The problem is with “lewd” or “non-lewd” poses that a paedophile doesn’t need the pose to be “lewd” to get aroused. Just the naked child will do.
I hope there will be a hefty, hefty financial settlement and quite a few people fired when (if?) the poor Mercados ever get their children back.
I also hope the children sue the sorry fuck out of the state when they reach eighteen.
If the idea is denying pedophiles their arousal, you’ll have to ban all pictures of children, whether or not naked. There’s a site on the internet that makes a brisk business selling videos and stills of children doing mundanely childlike things while fully clothed. There are pedophiles who get off on watching children’s birthday party videos and such not.
If you made everything that aroused someone illegal, you’d be making everything illegal.
Indeed. The gateway periodical for habitual pedophiles are catalogues for children’s clothes.
Stopping a pedophile from becoming aroused is only part of the goal of this legislation. The major part of the goal is to protect children from abuse, and having that abuse memorialized forever.