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Monday, April 9
Updated: April 12, 11:39 AM ET
Is the public hurt by sealing photos?
By Whit Watson
Special to ESPN.com

In the wake of Dale Earnhardt's death at Daytona and the subsequent legal battle over the privacy of his autopsy photos, Florida Gov. Jeb Bush signed a revamped public records law in that state that makes it a felony for a medical examiner to release autopsy photos without a court's permission. Within hours, that new law was challenged by the Orlando Sentinel and another newspaper in South Florida.

A week later, an attorney representing the Independent Florida Alligator newspaper of Gainesville, Fla., argued that the new law is unconstitutional, and more importantly, that it shouldn't be applied retroactively in Earnhardt's case.

Meanwhile, the Volusia County Medical Examiner's office -- ground zero for the whole battle -- asked to be removed from the agreement that was reached between Earnhardt's survivors and the Orlando paper, calling that mediated settlement "illegal." As part of that deal, a professor of biomedical engineering at Duke University was called in to examine the photos. He released his report to the Sentinal on Monday. But, by the time you read this, the entire story could be changed again.

This ordeal has all the makings of a long, ugly fight. But first, some background.

Soon after Teresa Earnhardt sued to keep the Sentinel from gaining access to her late husband's autopsy photos, the two parties were ordered by a Volusia County judge to settle their case in mediation. This was not a surprise -- each year, over 125,000 civil cases in Florida go to mediation, which, for those not in the know, is a method of alternative dispute resolution (ADR) that allows opposing sides to reach a compromise by meeting face to face.

The mediator is the manager of the negotiation, which saves significant money in legal fees and alleviates pressure on an already overworked court system. John Upchurch, himself a former judge, was selected to mediate the Earnhardt-Sentinel case.

Mr. Upchurch can rightfully be called a pioneer in the field, having worked as a mediator full-time since 1988. He is a principal in the mediation firm of Upchurch, Watson and White, with offices in Daytona Beach and Orlando. I know this because the "Watson" in that title belongs to my father.

Don't expect to read juicy tidbits about the mediation in this space. My dad is a professional mediator and a former attorney, so he knows better than to leak any sensitive information to anyone about an ongoing case, even to his own son -- particularly when his own son occasionally hosts a motorsports news show on ESPN2. However, he has been generous with his expertise as a 30-year veteran of Florida courtrooms. And he tells me flat out that if Teresa Earnhardt's lawsuit had gone to court instead of mediation, she probably wouldn't have had a chance of winning.

The law, in this case, is clear (or was clear) -- the Volusia County Medical Examiner's office is a taxpayer-funded operation, and therefore, virtually every single thing it does is public domain, from autopsy photos to memos about Casual Fridays. The people of Florida pay for it, and it belongs to them, no matter how disgusted we are that some newspaper in Orlando wants to see the pictures.

There's really no gray area here. In a sense, then, mediation was probably Mrs. Earnhardt's best chance to keep those photos private. The settlement, as negotiated by the two sides, granted access to the Duke professor, but the documents related to Earnhardt's autopsy will most likely never leave the Volusia County Medical Examiner's office, in light of the newly signed public records law.

The old version of the law, known as the "Sunshine Law," was one of the most liberal in the country, according to my dad. The way he describes it, the smallest town in the most remote corner of the state couldn't do so much as install a new stop light without meticulously documenting every step of the decision-making process and making those documents available for public inspection and approval. The idea behind the law was to protect the taxpaying citizens from getting screwed without their knowledge. It's a sound theory. You may recall another document that had the same general idea. Thomas Jefferson and the gang called it "The Constitution."

Of course, that was the old Sunshine Law. The new one places restrictions on certain documents -- specifically, autopsy photos -- and it passed in record time, with little public outcry. Fact is, it's hard to argue against it when faced with a grieving widow and the loss of a cultural icon. But does that make it right?

Nobody wants Teresa Earnhardt or her family to suffer any more than they already have. I agree their right to privacy should be protected, and I completely understand Mrs. Earnhardt's fear that the photos might end up on the internet if not legally restricted.

I have no desire to see autopsy photos of her husband go public, and I'm not convinced the Orlando Sentinel, or the Independent Florida Alligator, or the operator of some website in Deland, Fla., or anyone else should be viewing those photos. But that's out of common decency and respect for the Earnhardt family. Changing the law, as Florida's state legislature has done, is a dangerous and short-sighted act. Judging by the number of constitutional challenges already mounted, I am clearly not alone in taking this position.

The racing community makes no secret of which side of the political fence it favors. Many team owners and drivers revel in the knowledge that "their guy" is in the White House -- and his younger brother is in the state house in Tallahassee. According to a computer analysis of federal campaign contributions conducted by CNNSI.com, almost 90 percent of the checks written by those affiliated with NASCAR go to Republican candidates. Put simply, there's no way Florida's legislature would have passed this new public records law were it not for a vocal and powerful racing constituency.

We all feel for Teresa Earnhardt, and we agree she has a right to privacy, but in this case, Florida's state officials acted on reflex. The new law has placated the racing community, which plants itself firmly on the same side of the aisle as Florida's governor and the legislative majority. But it won't hold up, because under our system of laws, it cannot.

Florida state Senator Locke Burt went on record very early in this process with his concerns that the proposed new public records law was unconstitutional. As he put it, "we're going to pass this bill, and then it's going to court." He was right, of course, and he was a brave man for saying so. His home district of Ormond Beach is awfully close to the home office of NASCAR in Daytona Beach. No telling how many powerful people he ticked off when he raised his voice in protest.

For what it's worth, my family knows Senator Burt pretty well. In fact, the last time my father and I attended the Daytona 500, we stayed at Mr. Burt's house -- he was just Mr. Burt then -- and went to the race with him, with his tickets. I'm told that he's running for attorney general in Florida next year. Cynics may say his opposition to the so-called "Earnhardt Bill" was politically motivated.

This isn't about politics. It's about law and order, and right and wrong.

Losing Dale Earnhardt was emotionally devastating to thousands, and we will never know what Teresa Earnhardt and her family have gone through over the last few weeks. Nobody should have to go through all that. I, too, am a little sickened by the level of media interest in the autopsy photos, and I really wonder what the hell kind of "news value" they will have. Perhaps, if the report from the Duke professor turns up something groundbreaking and potentially lifesaving for other drivers, I will feel differently.

That being said, the public records law in Florida was written for a reason. Changing it, in my view, was a move to gain political favor, not a move for the betterment of society. Should a newspaper be allowed to view autopsy photos at a county medical examiner's office? If we still agree with the principles behind the United States Constitution, yes.

But should it want to? That's the real issue here.

Dale Earnhardt's lasting celebrity is what caused this confrontation -- if one of the greatest stock car drivers in the history of the world hadn't been killed during a race in Volusia County, Fla., this legal question would not exist, and the Orlando Sentinel wouldn't care. In this instance, Teresa Earnhardt is a victim of her late husband's fame.

Even so, altering the public records law does her no service. It does no service to the taxpaying citizens of Florida. Those photos should be kept private because it's the right thing to do -- not because a new public records law, one that sets a dangerous precedent, requires it.

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