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Tough to find Lawyers struggling to give NASCAR president subpoena
By Mike Fish, CNNSI.com It is the kind of invitation Mike Helton probably would rather avoid. And judging from the recent attempts so far to put him on the witness stand, the NASCAR president has succeeded, according to an attorney, in "kind of dodging service" of a subpoena. Tom Julin, attorney for the Independent Florida Alligator, wants Helton to testify at the much-anticipated hearing that begins Monday to decide whether Dale Earnhardt's autopsy photos should be open to public inspection. The hearing before Volusia County Circuit Judge Joseph Will is also expected to test the constitutionality of a new state law restricting the release of autopsy photos. Processors have tried for 10 days to serve Helton with a subpoena in Florida, Julin said. "People in his office have told the processor he's out of state and they've been looking for him, but they don't seem to be able to find him," said Julin, a prominent Miami attorney who represents the student newspaper. "I don't know that he's going to be in Florida before this [hearing]."
The legal proceedings will take place in Daytona Beach, the home of NASCAR. Julin said Friday that efforts would continue to have Helton testify, though the subpoena can only be served in the state of Florida. Helton attended the Kmart 400 in Brooklyn, Mich., and it was unclear whether he would return home after Sunday's race. NASCAR officials declined comment. Helton is one of a half-dozen on Julin's list of potential witnesses, and is perhaps the most crucial to Julin as he tries to prove NASCAR acted behind the scenes to block release of the Earnhardt autopsy photos. Teresa Earnhardt, widow of the NASCAR legend, has maintained she sought an earlier injunction to protect her privacy and that of her family, particularly 12-year-old daughter Taylor. The Florida legislature subsequently passed the Family Protection Act on a wave of public sympathy after Earnhardt's death Feb. 18 in the Daytona 500. On the eve of the hearing, Mrs. Earnhardt's position was endorsed by the National Council for Victims of Crime, the leading resource and advocacy organization for crime victims. "We deeply respect Teresa Earnhardt, who, under extremely painful circumstances, has courageously led the effort to protect not only her own family's privacy, but also that of every family in Florida," said executive director Susan Herman. "The current debate in Florida will have far-reaching consequences across the country for anyone who's been thrust into the public eye by virtue of a violent crime or tragic accident." Julin has questioned, however, whether NASCAR itself didn't prompt the widow to file suit, in part to divert attention from whether Earnhardt might have survived had the sanctioning body required drivers to wear a head-and-neck restraint device. The attorney suggested in court papers that NASCAR might have convinced her to have the photos sealed to protect itself against a wrongful death lawsuit. In a deposition last week, Dr. Steve Bohannon, a doctor at Daytona International Speedway -- which is owned by a sister corporation to NASCAR -- admitted that after viewing the autopsy photos Feb. 21 he met immediately with Helton without an appointment to report what he had seen. Bohannon said Helton was going to pass along his observations to Teresa Earnhardt. "For Helton and NASCAR, they have to be asking themselves, 'Do we want to be part of this [court hearing]?'" Julin said. "If they want to be a part of it, there is an open invitation to Mike Helton to come by virtue of our subpoena. He is on our list. We'd like him to come and testify. We'd like to ask him some questions. "It's possible he's not going to be served and he'll stay away. I think if he does, that tells you a lot about their evaluation of whether they would be helped or hurt by saying something." Teresa Earnhardt, herself, is expected to be the key witness against making the autopsy photos public and overturning the new state law. Her lawyers have accused the Alligator and a Deland, Fla., Web site operator of using the battle over her husband's autopsy photos to "sensationalize the tragic circumstances" of his death and use the photos "to their financial gain." In a 32-page court brief, Earnhardt attorneys stress that the official autopsy report is not in dispute, adding "there will be no trial [criminal or civil] as a result of this death."
Others included on the list of potential witnesses are Dale Earnhardt Jr., though it's uncertain whether he will appear. Affidavits are also likely to be presented in court from family members of drivers Neil Bonnett and Rodney Orr, whose autopsy photos have been displayed on an Internet site. Along with whether the Earnhardts have the constitutional right to stop the medical examiner from releasing the photos under the old law, there are at least two issues that Julin intends to argue related to the new law. The first deals with whether the law can be applied retroactively. That's essential here because it was rewritten after the public records had been requested. The other addresses the broad scope of the law itself. Julin believes the law was born primarily to prevent the posting of graphic autopsy photos on the Internet, but that it goes too far in preventing valued use of the photographs. He acknowledges the judge could try to strike a balance, thus making autopsy photos open for public inspection but not reproduction. "We've had this statute for around 90 years that requires public disclosure, that autopsy photographs and their availability have generally served a whole wide range of important public purposes, allowing people to check what the medical examiner has done," Julin said. "And when additional facts arise after the autopsy report has been completed, as we're seeing in this case, that you can then go back and see if photographic evidence bares out the variety of theories that might arise as to how someone died. "We're now seeing competing theories between NASCAR, Dr. Barry Myers [who conducted an independent report], Bohannon, and the guy that did the autopsy [Dr. Thomas Beaver]. They all have a little different take on that. And that has some bearing on the important public issue in this case, or one of them, which is whether NASCAR should require certain safety devices."
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