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Judge upholds law Earnhardt autopsy photos to remain sealed
Updated: Tuesday June 12, 2001 10:07 AM
By Mike Fish, CNNSI.com DAYTONA BEACH, Fla. -- When a judge read his opinion affirming the constitutionality of a Florida law that limits access to autopsy photographs, Teresa Earnhardt broke into a wide smile and began shaking the hands of her legal team. The decision by Volusia County Circuit Judge Joseph Will could prove a major victory for Dale Earnhardt's widow in her efforts to block release of the racing icon's autopsy photos. With the favorable ruling on the new, tougher state law, Mrs. Earnhardt is expected to be the star witness Tuesday as attorneys for the Independent Florida Alligator at the University of Florida and a DeLand, Fla., Web site owner return to argue for release of the photos. Even as the case proceeds, Tom Julin, attorney for the student-run newspaper, said an appeal is likely. But his case took a further hit after Volusia County medical examiner Dr. Thomas Beaver testified Monday autopsy photos serve solely as a backup in the event his dictation is misplaced, and that the photos often are of poor quality and, in Earnhardt's case, couldn't be used for diagnostic purposes. "We should be able to now show very easily that releasing the photos would be intrusive to the families,'' said Jon Mills, one of six attorneys who argued Mrs. Earnhardt's case Monday. Mills, interim dean of the University of Florida law school and former speaker of the Florida House, predicted the judge would be sympathetic to the pleadings of Mrs. Earnhardt, along with what should be spirited, emotional testimony from Kristen Bonnett, daughter of Neil Bonnett, and Beacher Orr, father of Rodney Orr. Neil Bonnett was killed in 1994 in a single-car crash during a practice session at Daytona International Speedway, and Rodney Orr also died in a 1994 wreck at Daytona. Michael Uribe, who is representing himself before Judge Will, posted graphic autopsy photos of both race car drivers on the Internet. Uribe employed theatrical tactics in court Monday, and it is expected he will attempt to cross-examine the relatives Tuesday. "That should be quite a scene,'' said Mills, shaking his head. And all eyes will be on Mrs. Earnhardt, who has uttered few public comments since her husband died Feb. 18 when his car slammed into the wall on the final lap of the Daytona 500. Mrs. Earnhardt strode into the third-floor courtroom at 8:45 a.m. Monday, an hour before the start of proceedings, accompanied by her legal team and good friend, Laura McEachern, who bears a striking resemblance to her. Outside in the parking lot, Mrs. Earnhardt passed signs of support: "No Photos ... We have the [Judge] Will to say 'No'.'' But inside, it was a button-down group of about 50, with no fans dressed in the Earnhardt garb you might see at a speedway. Mrs. Earnhardt appeared to listen stoically as the legal jostling went into the early evening, only becoming visibly angered when Uribe pleaded that the new law, if allowed to stand, would require hiring of an attorney in an attempt to gain access to autopsy photos. "Look at me,'' he told the judge. "Look at what I've been subjected to because I'm not an attorney.'' Mrs. Earnhardt slapped her hand to her forehead and let out a groan. "I got a kick, too,'' said attorney Thom Rumberger, who was seated to her right. "She was very upset.'' Mrs. Earnhardt 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 her husband's death. In retrospect, Julin argued that the state legislature overreacted by writing what he viewed as an unconstitutional statute. He also unsuccessfully argued that the law shouldn't be retroactive in this case, noting the student newspaper filed an open record request March 16 and the new legislation was not passed until March 29. Julin is expected to aggressively question Mrs. Earnhardt on whether NASCAR prompted her to file suit, in part to divert attention from whether her husband might have survived had the sanctioning body required drivers to wear a head-and-neck restraint device. The attorney has suggested in court papers that NASCAR might have convinced her to have the photos sealed to protect itself against a wrongful death lawsuit. Julin has attempted for two weeks to serve a subpoena on NASCAR president Mike Helton, but as of Monday night, processors had been unsuccessful. NASCAR headquarters is only four miles from the courthouse. "Teresa Earnhardt is the star witness,'' Julin said, as he prepared for the next legal phase. "We'd still like to know what led her to filing the lawsuit and whether NASCAR had a role in it. It would help gain release of the records if Teresa Earnhardt acknowledged being pushed by NASCAR.'' But that is a long shot, at best. Helton acknowledges that NASCAR is in Mrs. Earnhardt's corner on the autopsy photo issue. At the same time, Mrs. Earnhardt and Dale Earnhardt Jr. have come to the defense of NASCAR's handling of its on-going investigation into the fatal crash. Julin must demonstrate to the court that the public would benefit from gaining access to the photos. He began setting the stage for that argument by suggesting lives could be at risk by NASCAR's failure to require drivers to wear a head-and-neck restraint device. "The reason for autopsies is to protect the living from what it is that killed the deceased,'' Julin argued as to why the photos should be made public. "It's to protect the public from things that already caused the death.'' The question in this case is how material the photos might be. The county medical examiner testified autopsy photos are taken with an inexpensive Kodak camera and are rarely of good enough quality to be helpful in a forensic finding. It was particularly damaging testimony since Dr. Beaver was a witness for the Alligator. "I thought that was very critical,'' said Rumberger, an Earnhardt counsel. "I'm pleased as punch.'' Julin countered that it doesn't say much for Volusia County if the photo quality is bad, adding: "We're entitled to look at the photos and determine for ourselves.''
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