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The fight over photos

Lawmakers hope to block access to all autopsy photos in the emotional wake of Dale Earnhardt's death.

By TIM NICKENS

© St. Petersburg Times, published March 8, 2001


TALLAHASSEE -- Dale Earnhardt's legacy is extending beyond the racetrack and into state politics.

Amid a court fight over whether photos of the NASCAR legend's autopsy should be examined by a newspaper, Gov. Jeb Bush and state legislators on Wednesday launched an extraordinary effort to make photos and videos of all autopsies exempt from public records laws.

"This is not something that a grieving widow or a grieving family member should have to deal with," said Sen. Bill Posey, R-Rockledge, one of the bill's sponsors.

Standing alongside the governor and several legislators at a news conference was a Charlotte lawyer who represents Earnhardt's widow, Teresa, and his estate.

"She is behind this bill 100 percent and not just because it affects her family but because it affects many other families," Dick Lupo said.

The Orlando Sentinel wants a neurotrauma expert to examine the Earnhardt autopsy photos for 30 minutes at the Volusia County courthouse, editor Timothy A. Franklin said Wednesday night. He said the newspaper has no intention of publishing the photos.

Franklin said he believed the newspaper once had an agreement with Mrs. Earnhardt, but the racing legend's widow is now fighting in court and in the state Capitol to keep the photos private.

Shortly after Wednesday's news conference, lawyers representing Mrs. Earnhardt asked Volusia County Circuit Judge Joseph Will to delay his ruling on whether Earnhardt's autopsy photos should be released until the Legislature acts.

A hearing had been scheduled for today, but Will agreed to delay a hearing until March 19 -- the same week the full House expects to consider the legislation.

Although many lawmakers are unfamiliar with the issue, the legislation likely will be approved within the next two or three weeks. It has the support of the governor as well as House Speaker Tom Feeney. The prime sponsor in the Senate is Majority Leader Jim King, R-Jacksonville.

King's district includes the Daytona International Speedway in Daytona Beach, where Earnhardt died after he crashed on the last lap of the Daytona 500 on Feb. 18.

Controversy still simmers over the cause of Earnhardt's death and NASCAR's commitment to safety. The fight over the autopsy photos also has triggered a broader public policy battle that pits powerful politicians and thousands of race car fans against the state's major newspapers.

Bush's office has received more than 14,000 e-mails from race fans, virtually all of them upset with the Orlando Sentinel's efforts to view the Earnhardt autopsy photos.

Carol Adams from Louisiana: "I am sickened at the thought of anyone wanting to view these photos. I know there is some measure that can be taken to prevent this from taking place."

A.G. Moore Jr. from Virginia: "I have absolutely no desire to see any pictures of the 'best driver to ever sit behind the wheel of a Winston Cup car.' This is exploitation at its best, and I strongly urge you to do whatever is in your power to stop this horrific act that is about to take place."

Bruce and Mary Vickers from New York: "We plead that you will do everything in your power to ensure that Earnhardt family can keep the Orlando Sentinel's nose out of the private affairs of the Dale Earnhardt family."

Mrs. Earnhardt wrote a letter to King this week, asking him to file the legislation to exempt autopsy photos and videos from the public records laws. She also spoke by telephone with Bush.

"This is timely legislation," the governor said Wednesday. "I told her I felt we could craft legislation that protected the traditions of this state in terms of public information when the public interest is at stake but also be sensitive to the right of privacy as well."

All autopsy photos are public record now. The legislation would make them exempt from the public records law and force anyone -- except law enforcement officials -- who wanted to view them to seek permission from a judge.

Anyone who violated the ban or a judge's conditions for the release of the photos would be guilty of a third-degree felony, punishable by five years in prison.

Barbara Petersen, executive director of the First Amendment Foundation in Tallahassee, said it would be all but impossible to gain access to autopsy photos if the legislation becomes law.

She said a newspaper or anyone else wanting to see the photos would have to file a lawsuit against the county medical examiner and ask a judge to issue a subpoena requiring the release of the photos.

"This is not about Dale Earnhardt at this point," Petersen said. "It is about a constitutional right and our Legislature creating an exception to that right."

Franklin said the legislation would prevent newspapers and individuals from independently checking the work of medical examiners.

"He is an icon and was beloved, and I completely understand that," he said of Earnhardt. "But the issues are bigger here: Four drivers have died in nine months from what perhaps was a preventable injury."

The Orlando Sentinel published a series last month that found three NASCAR drivers who died last year suffered fractures at the base of the skull.

King said in an interview that his primary concern is not that the Orlando Sentinel would publish the Earnhardt photos but that another publication would and that the photos would wind up on the Internet.

Paul C. Tash, editor and president of the St. Petersburg Times, said there is a public purpose to keeping autopsy photos as public records.

"It would be a shame if the strong feelings of the moment about the Earnhardt case led to a sweeping rule that would keep all photos from autopsies secret, no matter what the circumstances and no matter what importance they might have for public understanding," he said.

Over the years, news organizations in Florida have reviewed autopsy photos in high-profile cases.

Last year, the St. Petersburg Times filed a lawsuit and successfully persuaded a judge to order the release of photos of the 1995 autopsy of Lisa McPherson, who died while in the care of Church of Scientology staffers.

The newspaper did not publish the photos, but a few of the 40 photos were placed on the Times' Web site.

"While those photos were difficult and challenging and disturbing," Tash said, "we thought it vital that the public be able to review them. And after reviewing them, we chose to publish two or three of them on our Web site so that readers so inclined could have some independent understanding of the facts upon which the prosecutors acted."

In 1990, several newspapers entered into an agreement approved by a judge that enabled them to view autopsy photos of five students killed in Gainesville by Danny Rolling. The photos were not published.

Over the years, officials with NASCAR and the Daytona International Speedway have contributed thousands of dollars to state legislators and the Republican and Democratic parties. The track has won major victories in the Capitol, including winning an exemption from growth management rules.

Since 1996, those interests have contributed more than $104,000 to legislators, political parties and a failed 1998 constitutional amendment that would have benefited the track.

King received a modest $2,700 in contributions from speedway officials when he won his Senate seat in a 1999 special election.

Daytona International Speedway has invited legislators to major races, and both the governor and his brother, President Bush, have appeared there in race ceremonies.

- Times staff writer Kevin Kelly and researcher Kitty Bennett contributed to this report.

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