Earnhardt’s Widow Fights to Protect Her Husband

Dale Earnhardt spent his life as the hard-driving Intimidator, and that’s the way his wife wants him remembered.

Since the NASCAR great died in February, Teresa Earnhardt has fought to protect her husband’s image and the family’s privacy by keeping his autopsy photos from public view.

She is expected to take the witness stand Monday in a court hearing that will examine Florida’s open-records law.

The Independent Florida Alligator, a student newspaper at the University of Florida, and a Deland-based Web site want a judge to release the photos. Mrs. Earnhardt has sued to keep them private.

The newspaper and Web site are also questioning a state law--passed just a month after Earnhardt’s fatal wreck at the Daytona 500--that no longer treats autopsy photos as public records and makes it a felony to release them without a judge’s order.

“A family member shouldn’t have to be embarrassed or shocked by seeing their loved ones on the front page of a tabloid or magazine,” said Florida Senate Majority Leader James E. King Jr., a Jacksonville Republican who championed the law.

But Barbara Petersen, executive director of the First Amendment Foundation in Tallahassee, said the law removes an important right. The foundation has filed a friend of the court brief opposing the law.

“It may be difficult for a lot of people to believe this, but this really has little to do with Dale Earnhardt and everything to do with the people of Florida’s right to governmental oversight,” Petersen said.

The hearing might also shed light on what role, if any, NASCAR played in efforts to seal the photos four days after Earnhardt’s Feb. 18 death.

The Alligator has suggested that NASCAR might have persuaded Mrs. Earnhardt to have the photos sealed to protect itself and divert attention from safety issues.

“We don’t know the critical facts of why the lawsuit was filed, who made the decision and what or if NASCAR said to Teresa Earnhardt to file the lawsuit.: said Tom Julin, a lawyer for The Alligator.

One witness, Daytona speedway physician Steve Bohannon, was deposed last week. Bohannon was one of the medical personnel who worked on Earnhardt after the crash and was the only person to see the photos before they were sealed. Bohannon said in the deposition that he wasn’t aware of NASCAR officials pressuring Teresa Earnhardt to have the photos sealed.

“It proves what we’ve been saying all along that there’s no coercion on Mrs. Earnhardt,” said Skip Eubanks, an Earnhardt lawyer.

The Alligator has argued that access to autopsy photos has been helpful to the public, such as allowing independent investigations of insurance claims, malpractice and murders. The newspaper also argues that the new law can’t be applied retroactively.

Earnhardt lawyers argue in their filings that the only reason access to the photos is being sought is to sell newspapers.

Lawyers for the Florida Attorney General’s Office argue that the law can be applied retroactively and that access to public records isn’t a fundamental right in the state’s constitution.

The journey to Monday’s hearing has taken more twists and turns than your average NASCAR race.

Teresa Earnhardt filed the lawsuit seeking the injunction four days after the crash. The next day, NASCAR officials held a news conference in North Carolina in which they said a broken seat belt might have contributed to his death, comments that have been disputed by paramedics at the scene and the seat belt’s manufacturer.

The Orlando Sentinel, which had been investigating NASCAR safety, then challenged the injunction, saying it wanted to review the photos for its investigation.

Teresa Earnhardt and the Sentinel reached a settlement that would allow an independent medical expert to view the photos and issue a report before the photos were permanently sealed. The medical expert later determined Earnhardt didn’t die from striking his head on a steering wheel because of a malfunctioning seat belt.

The Alligator and Deland-based Websitecity.com asked to intervene in the case, arguing they couldn’t be forced to be a part of the settlement. The Volusia County medical examiner’s office also said it couldn’t enforce the settlement.

Meanwhile, Gov. Jeb Bush signed the law on autopsy photos as Teresa Earnhardt stood by his side in March. Shortly afterward, the Sentinel and the South Florida Sun-Sentinel filed a challenge in Broward County.

Regardless of how Circuit Judge Joseph Will rules after Monday’s hearing, it probably will be appealed until it reaches the Florida Supreme Court.

The debate over autopsy photos has spread beyond Florida. A group of NASCAR fans who petitioned Florida lawmakers to change the law after Earnhardt’s death has started a grass-roots campaign to change public-record laws nationwide.

“It’s grown far beyond NASCAR fans,” said Cheryl Mundy, one of the organizers in Mocksville, N.C. “We’re going after all the states.”