March 30, 2010— -- What were intended to be sweet family photos instead morphed into an immigration nightmare for new Utah parents, who face deportation after a Walgreens worker flagged pictures of their naked son.
Prosecutors have cleared Sergio Diaz-Palomino and Alma Vasquez of any wrongdoing after authorities questioned family photos in which Diaz-Palomino is seen kissing the face, buttocks and genitals of their 9-month-old, American-born son.
But the couple is still in custody, their son in state foster care, after their arrests from the photo flap revealed the Mexican nationals were living and working in the U.S. illegally.
St. George attorney Alan Boyack, who was appointed to represent Vasquez in the child-welfare aspect of the case, said he expects her to be deported. Boyack said he is trying to get mother and child reunited and then Vasquez will leave the country voluntarily.
A court hearing today reduced her bail to $1,500, which her newly appointed private attorney Susan Broberg expects her family to be able to put together.
"She is very despondent, does a lot of crying," Boyack said. "Very upset. And I think that would be quite natural."
Lawyers for the couple say they expect Diaz-Palomino will almost certainly be deported soon. Officials from ICE could not immediately be reached for comment.
Diaz-Palomino's criminal attorney, Ken Combs, said the pictures in no way represented a sexual act and that it is a cultural tradition to kiss the babies everywhere as a sign of affection.
"If you take one isolated maybe two isolated pictures and you ignore all the others, then you may have the idea, there's something to investigate here," he said.
One of the women who flagged the photos at Walgreens is unapologetic, saying the images she saw horrified her.
"In four years of working in the photo department I have not seen photos that disturbing ever," St. George Walgreens photo manager Shirley MacArthur said. "Where he was kissing the baby, that was not right."
When asked if the couple should be deported, MacArthur responded, "Sure."
"I'm very disappointed that the charges were dropped," she said, adding that it was the corporate loss-prevention department that decided to call police after reviewing the pictures. "The photos, if you saw them, would blow your mind."
Diaz-Palomino was charged with rape and sodomy against an infant, according to ABC's Salt Lake City affiliate. Vasquez was charged with two counts of sexual exploitation of a minor for taking the photos.
Washington County Deputy Attorney and lead prosecutor Ryan Shaum, however, said that when put in context with the rest of the 30 or so photos that were obviously taken during the same shoot, it seemed that Diaz-Palomino was simply a proud father.
Some of them showed other people in the room, including an elderly woman.
"It appears to be a father who loves his child … who is proud of having a boy," Shaum said.
Prosecutor: Father Kissing Baby's Genitals Not Rape
Of the whole lot of pictures the couple had developed at Walgreens -- which Diaz-Palomino told authorities he was planning to send to relatives in Mexico -- about 15 of them show just father and son. The baby is naked and Diaz-Palomino is wearing long pants.
In some they are posing, in others, Diaz-Palomino is kissing the baby's face or nibbling on his ears. But in the two photos flagged by the store workers, Diaz-Palomino has the naked baby raised high above his head and is kissing the boy's buttocks.
In the second photo, Diaz-Palomino is holding the baby facing him, Shaum said, and "it appears the father is kissing the penis."
"Most people would look at the photo of him kissing the genitals and be a bit disturbed by that," he said. "This is not something that most people in society would do."
But after close inspection, he said, prosecutors did not believe the photos showed Diaz-Palomino committing a sexual act on the child.
Boyack noted that this would not be Diaz-Palomino's first deportation.
Shaum, however, didn't fault the call by Walgreens employees.
"We don't want to discourage anyone from sending what appears to be disturbing pictures to the attention of the police," he said. "In this case, we felt like we had to look at all the photos in context."
Vasquez, who has requested a hearing before a federal immigration judge, will next appear in court on the child welfare portion of her case on April 8. Her child, her attorneys said, will remain in state custody.
According to the Salt Lake City Tribune, Diaz-Palomino has been in the U.S. for 10 years and worked at a Red Robin. Vasquez has been in the U.S. for three years, the paper reported, and once worked at a Motel 6.