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Different rules Experts not sure if photos would be available in Alabama
DECATUR, Ala. (AP) -- Garland Gehrke understands better than most racing fans what the family of Dale Earnhardt has gone through since the driver's death Feb. 18 in the Daytona 500. Gehrke's son, Chris, died after a May 4, 1991, crash in an ARCA series race at Talladega Superspeedway. No driver has died in a race accident at the superspeedway since, according to a track official. "I could feel for the family, with my family going through the same thing," Garland Gehrke said. "Tears came to your eyes because accidents do happen. "It hit home." The owner of a trucking company in Lincoln, Ill., Gehrke, 61, said he also had strong feelings about the battle for access to photos from Earnhardt's autopsy. The Orlando Sentinel and attorneys for Earnhardt's widow, Teresa, agreed Friday to let an independent expert look at the photos and answer questions for the newspaper's representatives. The photographs then will remain private. "I could not imagine wanting to make the photos public," Gehrke said. "Very selfish of them. I can't imagine the public being that rude to the family." Gehrke said he never worried about somebody wanting to see any photos that might have been taken when the Alabama Department of Forensic Sciences performed an autopsy on his 23-year-old son after the 1991 accident. "It had not entered my mind," Gehrke said. Because Chris Gehrke's accident occurred in the lower-profile ARCA division, there was never the glare of attention that accompanied Earnhardt's death. But what if Chris Gehrke had been a driver with a bigger reputation or what if a star died in one of the premier Talladega races this year? What would Alabama law say about the autopsy photos? The answer isn't clear-cut -- two experts disagreed on interpreting the law. And the Alabama law, unlike Florida's, wouldn't automatically require an autopsy. Reports of autopsies performed by Alabama's Department of Forensic Sciences, which is paid for by tax money, are open to the public although there may be a delay if a criminal investigation is incomplete, according to deputy director Brent Wheeler. He said department policy defines reports as written material, which frequently is accompanied with body diagrams. But, Wheeler said, "No photographs are considered to be public unless we include one in our reports." He said he doesn't remember a photograph being included with a report. The department treats photographs as evidence because objects shown by them cease to exist. "That would be like you calling and saying, 'Send me the gun in that case. I want to take a look at it.'" He said it takes a court order to get an autopsy photograph released from the department. If a district attorney has an autopsy photo in a criminal case, the defense attorney can obtain a motion for discovery that requires the DA to share the photo. But an attorney for the Alabama Press Association said state law also makes photos made by the Department of Forensic Sciences open to the general public. "I would say that a newspaper could go to court and get the photographs," said Dennis Bailey, general counsel for the APA. He said the negatives could be considered evidence but a photograph made from the negative would be public. Bailey said the circumstances would dictate whether he agreed with a newspaper demanding autopsy photographs. "I'd be sickened if they were getting the photographs just to publish them," he said. "I would advise that they would be public records but I wouldn't publish them out of a notion of courtesy." He said he agreed with the Orlando Sentinel's reason for requesting the Earnhardt autopsy photographs. "They weren't trying to get them for an improper purpose," he said. "They were trying to get the photographs to have them looked at by an independent forensics person because there is a question about the cause of death." Would there be an autopsy? Wheeler said his department conducts autopsies when foul play is involved or when the cause of death isn't known -- a pedestrian's body found by the side of the road, for instance -- and foul play needs to be ruled in or out. Only a few counties in the state, most notably Jefferson, have different guidelines. Wheeler said that a racetrack accident wouldn't automatically result in an autopsy, and it would have to be requested by the district attorney. Steve Giddens, district attorney in Talladega County, said he wouldn't lock himself into a position by saying whether he'd order an autopsy if a driver were to die at Talladega Superspeedway. "It's just on a case-by-case basis," Giddens said. "I'm not saying we would or wouldn't."
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