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Judge denies access request for Earnhardt photos

By Mike Fish, CNNSI.com
June 13, 2001
10:54 PM EDT (0254 GMT)

DAYTONA BEACH, Fla. -- This was like winning the first period of a hockey game. So there was no wild euphoria in the courtroom when a judge ruled Wednesday against releasing autopsy photographs of NASCAR racing legend Dale Earnhardt.

A solid victory, yes. A verdict bringing a slight smile to Teresa Earnhardt, even.

But while Earnhardt's widow was being hustled out of the Volusia County Courthouse, her lawyers already were discussing the next step in a battle that almost certainly will find its way to the Florida Supreme Court. Tom Julin, attorney for The Independent Florida Alligator, the University of Florida student newspaper, expects to challenge the verdict in appellate court and, if unsuccessful, take up the constitutionality of a new state law that seals autopsy photos with the state's highest court.

"I'd suggest it is a very good first step," said Thom Rumberger, who heads the Earnhardt legal team. "We'll see where we go next. I'm sure we'll be off to another court. It doesn't bring closure, though. It's part closure and the start of something else."

Rumberger said he got a "little squeeze" on the hand from Mrs. Earnhardt when Circuit Judge Joseph Will announced his verdict. Flanked by deputies, she then left the third-floor courtroom without commenting on the decision that came after three days of legal wrangling.

"She was pleased," Rumberger said. "She's just not an expressive woman. She's very private." Mrs. Earnhardt has held firm that little or no good could come from public access to the autopsy photos. The photos were sealed, at her request, four days after her husband, a seven-time Winston Cup champion, died Feb. 18 after a crash at the Daytona 500.

Will, who affirmed the constitutionality of the new state law Monday, ruled that neither the Alligator nor a DeLand, Fla. Web site operator had demonstrated "good cause" for being allowed access to the Earnhardt photos. He did, however, rule against her attorneys' effort to have the records permanently sealed.

Under a new, more restrictive law, a judge must consider four factors before granting access to autopsy photos: whether they're necessary in evaluating performance of a governmental agency; how seriously they intrude on family privacy; whether the disclosure would be the least intrusive means available; and whether other records exist that could answer the question.

"She has prevailed overwhelmingly," Will said. "There should be no disclosure of any degree whatsoever."

Will proved particularly sensitive to the issue of privacy, noting that Mrs. Earnhardt and her 12-year-old daughter, Taylor, already have suffered enough. A key ingredient was the request for photos by Michael Uribe, who previously posted graphic autopsy photos of NASCAR drivers Neil Bonnett and Rodney Orr, who died in crashes at Daytona International Speedway in 1984. Uribe declined to say why he wanted the Earnhardt photos.

"There's no question the violation of privacy this family has experienced is significant," Will said. "Having it come to Mrs. Earnhardt alone is enough ... But subjecting her 12-year-old daughter to it is unspeakable.

"I would not subject my children to such nonsense [of having the photos on the Internet]. Neither would you."

Will also rejected the possibility of malfeasance on the part of the county medical examiner's office or the Daytona Beach police in their investigations. Earnhardt's case was strengthened when Dr. Tom Beaver, the Volusia County medical examiner, testified the photos were of average quality and served as only a backup in case dictation recorded during the autopsy was lost.

In his ruling, Will said no serious questions arose from either the medical examiner's report or that of independent expert Dr. Barry Myers, who was allowed to view the final report and the autopsy photos. "If there were [questions], we'd know," Will said. "They'd be in neon on the side of a blimp."

Julin, attorney for the student newspaper, had attempted to show that NASCAR might have influenced Mrs. Earnhardt's decision to seek a court order sealing the autopsy photos the week of the crash.

He suggested NASCAR might have prevented drivers from dying as a result of basular skull fractures if it had mandated a head-and-neck restraint device. It's his contention that NASCAR raised the idea of a failed seat belt being a factor in Earnhardt's death to deflect attention from the real cause.

Julin plans to file an appeal in the next two weeks, and remains confident the new law eventually will be overturned.

"This decision denies the public access to important information," he said. "We want to know what killed Dale Earnhardt and if NASCAR is covering up on the point of the seat belt failure." Mrs. Earnhardt testified that she was satisfied with NASCAR's investigation, adding that she saw no reason for further review of the crash.

What obviously irked her most during the three-day trial was the presence of Uribe, the Web site operator who acted as his own attorney. Uribe showed no remorse about posting autopsy photos on his site.

In his closing argument, Uribe went far afield with a reference to the execution of Oklahoma City bomber Timothy McVeigh and the "violent deadly activity" seen in NASCAR racing. Mrs. Earnhardt turned away at the reference, while Rumberger asked the judge if she could leave the room.

Indeed, Mrs. Earnhardt stayed away until Uribe finished his argument.

One of her attorneys, Judson Graves, later told the court Uribe is running a "virtual morgue." Outside the courtroom, Uribe questioned whether Mrs. Earnhardt's exit wasn't done for dramatic purposes.

As for the "virtual morgue" description, Uribe said: "I took it as a compliment because it shows I'm not altering public records as I get them. They're up there as they are in the files."

Judge Will landed his own jab in the end, saying his decision had nothing to do with celebrity, that the case could just as easily have been about "the man under the bridge or Mr. Uribe's mother."