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Permission granted Judge says student newspaper can challenge autopsy law
Updated: Thursday April 05, 2001 7:16 PM
DAYTONA BEACH, Fla. (AP) -- A judge on Thursday allowed a student newspaper and a Web site to challenge the sealing of the Dale Earnhardt autopsy photos and test the constitutionality of a new law that restricts access to such images. The decision was a blow for Earnhardt's widow, Teresa, who thought a compromise reached last month with another newspaper, the Orlando Sentinel, had put to rest any future claims by the public to view the autopsy images of her husband. The judge's decision "is most distressing. I'm sure that's how Mrs. Earnhardt will take it," said her attorney, Judson Graves. Circuit Judge Joseph Will said he wants to try to answer the many legal questions that remain on whether the public has the right to view autopsy photos. A hearing at which Teresa Earnhardt may testify will be scheduled for later this month. The student newspaper, The Independent Florida Alligator, is run by University of Florida students but is not an official university publication. Alligator editor Trey Csar said the newspaper hasn't decided what it will do with the photos if it gets access to them since "it's hard to do something if you don't know what they are."
Websitecity.com is run by Michael Uribe out of Deland, Fla., and has been criticized for posting the autopsy photos of NASCAR racers Rodney Orr and Neil Bonnett on its site. The judge also allowed the Tallahassee-based First Amendment Foundation and the Florida Society of Newspaper Editors to join the challenge as friends of the court. "Individual and personal privacy rights are in conflict with public records law," Will said. "We need to resolve that sooner or later." Until last week, autopsy photos were public records under Florida law. But Gov. Jeb Bush signed into law a measure that makes it a third-degree felony for a medical examiner to make public autopsy photos. The law was passed at the urging of Teresa Earnhardt and was made retroactive to apply to the Dale Earnhardt autopsy photos. Not only will the new law be challenged in Volusia County, but the Orlando Sentinel and its sister newspaper, the South Florida Sun-Sentinel, which is based in Fort Lauderdale, have challenged the law in Broward County. In February, four days after Earnhardt died in an accident at the Daytona 500, the judge granted Teresa Earnhardt a temporary injunction sealing the photos out of privacy concerns. The Orlando Sentinel tried to get the injunction dissolved, saying it wanted its medical expert to review the photos for an investigation into NASCAR safety. Frustrated attorneys for Teresa Earnhardt said the judge's decision Thursday negates a compromise reached with the Orlando Sentinel to permanently seal the autopsy photos after an independent medical expert has viewed them and written a report. The compromise was reached after two days of court-ordered mediation last month. A report by Dr. Barry Myers of Duke University is expected to be released next week. "Is she basically back to square one with her privacy rights?" Earnhardt attorney Judson Graves asked the judge. The judge responded, "Yes, I think so." Sentinel attorney David Bralow said the agreement was still in place as far as the Sentinel was concerned, but other parties were free to pursue their own efforts to view the photos. The Volusia County Medical Examiner's Office, the custodian of the photos, had challenged the agreement, saying it couldn't abide by an exemption to Florida's public records law that was made by two private parties. The judge will rule on those concerns at the hearing.
Uribe had also challenged the temporary sealing of the photos by filing an appeal to the Fifth District Court of Appeals. He said he would continue the appeal even though it may delay the circuit judge from making a final decision.
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