State: Autopsy pictures law is upheld

Judge Joseph Will ruled that the Family Protection Act, passed by the Legislature one month after her husband died in a crash on the last lap of the Daytona 500, was a "valid and constitutional exercise."

"Specifically, the court finds that the Legislature has stated with specificity of the necessity justifying the exemption of the public records law," Will stated.

The law, signed by Gov. Jeb Bush on March 29, made it a felony to release autopsy photos -- originally public records -- without a judge's approval.

"It resolves a potential problem for everybody in the state of the exploitation of these autopsy photos," Florida Solicitor General Tom Warner said.

But the battle over the photos, sealed four days after Dale Earnhardt's death on Feb. 18, will continue today.

Attorneys for Websitecity.com and for the University of Florida's student newspaper, the Independent Florida Alligator, will try to persuade Will today to release the photographs of the seven-time Winston Cup champion.

Both defendants must argue under the new law's guidelines for the right to copy the photographs.

"This is the first step in the process," said Tom Julin, attorney for the Alligator. "I'm happy that we have a good record before the court to show that the statute is unconstitutional. I think it's over-broad."

Julin said a notice of appeal likely will be filed after the final judgment is entered, assuming both defendants do not get the photographs.

Michael Uribe, operator of the Deland-based Web site and a 1991 graduate of Florida International University, doesn't plan to let Monday's decision deter further action.

"I guess today is something where you say, "You lost the battle but not the war,' " said Uribe.

Teresa Earnhardt and Dr. Steve Bohannon, head of emergency medical services of Daytona International Speedway, are among the witnesses expected today.

"We'd still like to know what led to the filing of the lawsuit and whether NASCAR had any role in that," Julin said. "Those answers haven't been answered by anyone. There certainly would be good cause to release the records if Teresa Earnhardt conceded tomorrow that she was pushed into filing a lawsuit by NASCAR."

Thom Rumberger, Earnhardt family co-counsel, said Teresa Earnhardt's testimony will explore the anguish and grief the widow has endured.

Julin would like to question NASCAR president Mike Helton about NASCAR's possible influence over Teresa Earnhardt, but efforts to subpoena Helton have been unsuccessful.

The lone witness during day one was the Volusia County medical examiner.

Dr. Thomas Beaver testified that the quality of autopsy photographs makes it difficult to determine a cause of death, but that a better digital camera might help. He said autopsy photos are only a backup should recording devices fail while performing an autopsy.

"One of the things about the public records law is we don't have to rely on what Dr. Beaver says about the photos," Julin said. "We're entitled to look at the photos and decide for ourselves whether they're good quality or bad quality or they show anything of any importance."

And that's what Will is expected to decide today.

"The judge's decision sounded awfully simple when he dictated it, but he knows it's more complicated than that," said Jon Kaney of the First Amendment Foundation in Tallahassee. "You can tell he knows it's more complicated than that from his questions and comments during the trial.

"(Today) becomes very interesting."

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Lucy Morgan

From the Times state desk