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TalkBack Live

Should the Media Have Access to Dale Earnhardt's Autopsy Photos?

Aired March 12, 2001 - 3:05 p.m. ET

THIS IS A RUSH TRANSCRIPT. THIS COPY MAY NOT BE IN ITS FINAL FORM AND MAY BE UPDATED.

(BEGIN VIDEO CLIP)

TERESA EARNHARDT, WIDOW OF DALE EARNHARDT: There is nothing to be gained by the release of these images from Dale's autopsy. Releasing the pictures will serve only to violate the privacy of our family and the integrity of Dale's legacy.

(END VIDEO CLIP)

(BEGIN VIDEO CLIP)

KATHLEEN WALTZ, "ORLANDO SENTINEL": We want to know exactly how Mr. Earnhardt died so that we can determine if the death was preventable and so that we can help prevent future tragedies.

(END VIDEO CLIP)

(BEGIN VIDEO CLIP)

UNIDENTIFIED MALE: If it will help save lives in the future, then, yeah, I think people should see the pictures.

(END VIDEO CLIP)

(BEGIN VIDEO CLIP)

THOM RUMBERGER, EARNHARDT FAMILY ATTORNEY: If they have some problem with NASCAR and NASCAR's safety, in NASCAR racing, perhaps they ought to take that up with NASCAR.

(END VIDEO CLIP)

(BEGIN VIDEO CLIP)

UNIDENTIFIED MALE: I think it's just inevitable that they'll find their way into the public somewhere or another, and that would just be a really commentary on something that ought to be very private and very personal.

(END VIDEO CLIP)

(BEGIN VIDEO CLIP)

UNIDENTIFIED FEMALE: We'll have an expert look at them in a supervised setting.

(END VIDEO CLIP)

(BEGIN VIDEO CLIP)

UNIDENTIFIED MALE: It's the right of privacy versus the right of money.

(END VIDEO CLIP)

(BEGIN VIDEO CLIP)

UNIDENTIFIED FEMALE: There's still a larger issue here, that deceased have a right to their dignity.

(END VIDEO CLIP)

ROGER COSSACK, HOST: Welcome to TALKBACK LIVE. I'm Roger Cossack in for Bobbie Battista. Who has the rights to NASCAR driver Dale Earnhardt's autopsy photos? Well, the "Orlando Sentinel" says it wants to use them to save lives. But the family wants the photos left alone. Is the newspaper invading the family's privacy or performing a public service?

Joining us today is Thom Rumberger, the Earnhardt family attorney, and Paul McMasters, a First Amendment ombudsman at the Freedom Forum.

The "Orlando Sentinel" declined our invitation to participate in today's show; however, it did send this statement: "The 'Sentinel' has never intended to publish the Earnhardt autopsy photos. Rather, the 'Sentinel' has contracted with Dr. Phillip Villanueva...to view the autopsy photos. Dr. Villanueva, who is a nationally recognized head trauma expert, believes that by studying the autopsy photos for 30 minutes, in conjunction with analyzing the autopsy report and other information, he can conclusively determine how Earnhardt died.

"The 'Sentinel' has attempted to have the autopsy photos viewed by Dr. Villanueva with the utmost empathy for the Earnhardt family, the NASCAR community and NASCAR fans. Dr. Villanueva would view the autopsy photos under court supervision with no 'Sentinel' employees present. No copies of the photos would be made, and the photos would remain under the control of the court and the Volusia County medical examiner."

Tom, you are the Earnhardt family attorney. Thank you, first, for joining us. What would be wrong with having these photos viewed in a controlled environment like the "Orlando Sentinel" says it's going to do in the hopes that perhaps greater safety can come from it, not just for perhaps the drivers of NASCAR, but maybe for drivers generally?

RUMBERGER: Roger, first, I have to say I'm somewhat amused by the "Sentinel" sending in a statement. I have been on 11 different shows, and including radio shows in the past few days, and in each instance, the "Sentinel" has sent someone to rebut, to explain, to talk. And this is the first time that they have not appeared. I guess they must sense that perhaps they are not on good and solid ground.

What's wrong with it? It's an invasion of her privacy, Roger. It's an invasion of the Earnhardt family's privacy. It is wrong. It does not comport with the Florida Constitution. This woman has a right to grieve, to set her life back in focus, to take and protect her 12-year-old daughter from this, which undoubtedly will get to the Internet. It's just simply wrong.

And the "Sentinel" has no reason other than their stated reason, which was initially on March 4th that they needed these photographs to beat the competition, to ease and to make the competitive edge go away. Now that's not a reason to overcome the right of privacy that is granted to the Earnhardts. And just common sense and common decency requires that.

COSSACK: Thom, I understand why the Earnhardts don't want this, and certainly, there's not a person around that doesn't sympathize with Teresa Earnhardt's position. But the point is this -- I mean, you're making certain assumptions that may or may not be true. You assume that they're going to get on the Internet. That may or may not be true.

What the "Sentinel" says at least now is, "All we want to do is have this renowned physician look at these pictures for a half an hour inside a courthouse alone, and then view the written report of the autopsy, and that's all we want. The photos won't leave the courthouse. They will never leave anyone's possession. They will be in the possession of the person who has them. All the doctor wants to do is view them. What's our stated purpose, believe it or not -- you know, you can or you can't -- is that we're looking to do an investigative report on saving lives."

RUMBERGER: Roger, I'm not going to ascribe a lot of ulterior motives to the "Sentinel." In fact, in the past, they've been a relatively dignified news source. But I can say this. Nicole Brown's autopsy reports are on the Internet. Ron Goldman's autopsy photographs are on the Internet. JonBenet's autopsy photographs are on the Internet. And none of those folks wanted those autopsy photographs on the Internet, but they've all managed to get there.

Now you tell me and you answer me honestly, if in fact, the "Sentinel" goes in, how in the world is anybody else kept from going in at various times? For example, we had a horrible, horrible slashing murder by some idiot down in Gainesville, and over 800 people got in, and went in and saw those mutilated bodies contrary to the request and the feelings of the family. So it's going to happen, Roger. It's not just guessing or speculating. And why should this even have the potential to occur?

They don't need it. They have a written report of the autopsy, which is detailed, and they want it only for sensationalism.

COSSACK: All right, let's go to Paul McMasters now and let him have a word or two. Paul, you know, there's a sense of good taste here that seems to be violated by what the "Orlando Sentinel" wants. Yes, let's assume that their purposes are as noble as they say they are. But, you know, I think that it's a hard argument to rebut when Thom says, "Look, these photos are going to end up on the Internet." Our audience here, before we started the show, we talked to them, and that was their main concern: the notion that suddenly, you know, the good intentions will be ruined and privacy and dignity will be lost.

PAUL MCMASTERS, FREEDOM FORUM: Well, certainly, it is a tough point to refute. But if -- I think it's fair to assume, Roger, that if we can make -- we can speculate that these autopsy photos might be used for bad purposes, then we have to assume, to be fair, that they would be used for good purposes, also. And the fact of the matter is the "Orlando Sentinel" has been investigating this whole area for quite some time, and in fact, there have been four people now within the -- less than a year who died of the same injuries. And it seems to me to make a lot of sense to try our best to prevent the grief that the Earnhardt family and fans are going through right now with another driver. And if this investigation can indeed turn up reasons for a full-faced helmet or a high-tech neck restraint or a six-point seat belt, then we ought to be looking at that. One thing I don't think we ought to be doing, though, is looking in to handing down court decisions or enacting laws in the -- in a moment where everybody's passions are understandably high.

COSSACK: All right, let's take a break. Do you think newspapers should have access to Earnhardt's autopsy photos despite his family's objections? Take the TALKBACK LIVE online viewer vote at cnn.com/talk back. AOL keyword: CNN. And we'll be right back. Stay with us.

(COMMERCIAL BREAK)

(INTERRUPTED FOR BREAKING NEWS)

(BEGIN VIDEO CLIP)

UNIDENTIFIED FEMALE: They're never going to get to start the healing process while all of this is still going on.

(END VIDEO CLIP)

(BEGIN VIDEO CLIP)

UNIDENTIFIED MALE: It's a tragedy and this just makes it worse for the family.

(END VIDEO CLIP)

(BEGIN VIDEO CLIP)

UNIDENTIFIED FEMALE: It's time to let things go and they shouldn't release anything else. It's no one's fault. It was a tragic accident and it's time to move on.

(END VIDEO CLIP) COSSACK: And we're back and we're talking about the tragic death, of course, of race car driver Dale Earnhardt and the request by the "Orlando Sentinel" to be able to view the autopsy photos of the deceased driver, Earnhardt. Their claim, of course, is it's in the name of the safety, an investigative piece to find out whether or not head and neck restraints should be perhaps mandatory on the drivers.

Let's talk to some of our studio audience on this.

Sonny, we've had a chance to speak with you. Your thoughts on this? I know that you're a NASCAR fan.

SONNY: I am. And I believe in free speech. I believe in freedom of the press. But, however, as we all know, that free speech and freedom of press, those rights end when they infringe on the rights of others. And I believe real strongly that by releasing these photos and them getting on the Internet, you're infringing on the rights of the Earnhardt family and the healing will never take place. So I feel strongly they shouldn't release them.

COSSACK: You know what's interesting, Sonny? And I think in many ways, you represent the view that a whole lot of our audience and people who have e-mailed us have been saying, which is it's not that we don't trust the "Orlando Sentinel. We understand that they're trying to do a noble deed. But we just don't believe that these things will not end up on the Internet no matter how heard anybody tries and now matter how good they try." Is that your feeling?

SONNY: I agree completely. No matter how hard they try and no matter how much they say that they won't go out, everyone has a price. Someone could either offer them enough money for whatever reasons, personal reasons or whatever. I believe strongly they will end up on the Internet somehow, some way.

COSSACK: OK, we have another comment from one of our members of our audience -- Jason?

JASON: Yeah, I think that they should be released because of freedom of the press. And as long as it's the truth, they should be allowed to print it.

COSSACK: All right, Jason, so you would say that this is just one of those things, and that the freedom of press would trump the ability to keep this private.

JASON: Yeah, if it would reveal the truth in what happened, then they should be able to put it on to look at them.

COSSACK: All right. Nicole has something to say.

NICOLE: I think what's being overlooked is that if scientific research from this accident can provide some evidence that there should be head and neck restraints that could save lives, that obviously is something that should be looked at and something that is very important. I think it's tragic what happened to Mr. Earnhardt, and I think I definitely agree with what Mrs. Earnhardt is saying about protecting his rights. However, if this research can save lives in the future, that's something that should be looked at.

COSSACK: Thom, what about this notion of saving lives, of using Mr. Earnhardt's, Dale Earnhardt's accident as a vehicle to find, to do some research? Isn't this something that perhaps NASCAR on its own should be doing or someone should be doing? Look, the process is noble. What people seem to be concerned about is the idea that, you know, we just can't police it.

RUMBERGER: Roger, I think that you're absolutely correct. You know there are three or four deaths in the last 18 months or two years, and the "Sentinel" has made no effort to get a hold of those autopsy reports -- photographs, rather. And I guess the reason is that their coverage really is in the Orlando, central Florida area. I don't want to ascribe a lot of ulterior motives. I know that the "Sentinel" probably would not have any indication or interest in releasing those photographs. But what they're after is simply not necessary.

If there's a fight over at NASCAR and NASCAR's safety and drivers' safety, that's really not between Mrs. Earnhardt and the "Orlando Sentinel." That's between the "Sentinel" and NASCAR. And then lastly, what gives the "Sentinel" the right to conduct this investigation? I mean, right now, you are allowed to wear, if you wish as a NASCAR driver, the head and neck restraint. You're allowed to wear a six-point belt. You're allowed to do anything in accordance with their current rules and regulations. They just don't mandate them. But that's something the "Sentinel" might want to do.

COSSACK: Paul, you know, that's a good point Tom brings up. I mean, that whole issue of, you know, whose business is it anyway. I mean, once someone assumes the role of driving a car at 170-180 miles an hour, it seems a little after the fact to be describing to them how they're going to do it. I mean, this doesn't get much more dangerous than that. These guys are obviously professionals. Isn't it up to them to make their own decision as to what kind of safety equipment they want to wear or not wear as long it doesn't interfere with their ability or cause them to have other accidents?

MCMASTERS: Well, certainly, Roger, you can make that argument, but it should be an informed argument, one informed by the facts. And in this case, there is no government investigation and there will be no government investigation unless something...

COSSACK: But, I mean, should there be a government investigation? Why should there be a government investigation I guess is the question I should ask.

MCMASTERS: Because there is widespread and profound disagreement among a number of medical authorities as to exactly what happened here and what could have prevented what happened here. There has to be some reconciliation of that disagreement. And there's only one way to do that in a government investigation. We can't expect NASCAR to willingly really get into that in depth. It remains up to the news media in its traditional role to bring out the facts and then let the public and government authorities decide whether something needs to be done. COSSACK: All right. Joining...

(CROSSTALK)

COSSACK: I'm sorry, go ahead. Finish up.

MCMASTERS: I don't think that we should color this just as a battle between the "Orlando Sentinel" and the Earnhardt family. That's what the focus is on, but this goes back to a freedom of information law that was passed in 1909 by the people of Florida and has served the people of Florida well since then.

It's this idea that this is the public's right to know and the public's right to access that really is at stake.

COSSACK: All right. Let go to -- we have a -- we have Angela from Texas on the phone.

Angela, I know that you've been waiting patiently. Let me hear your thoughts on this.

CALLER: There is -- I don't understand what all the confusion is about. There is no mystery as to why or how Dale Earnhardt died. He died doing something he loved. It is a shame. Hitting a wall at 180, 190 miles an hour, the way that he did, there is no confusion in this. The only people that want these photos is the money-hungry, sick, twisted people that for some reason want to see.

COSSACK: Angela, let me ask you a question. If, in fact, it could be shown that Dale Earnhardt would be with us today if he'd have worn that head and neck restraint, and that by doing some investigating, we could find that out for sure -- wouldn't you rather know that information?

CALLER: No. No, I wouldn't, for the simple fact that I watched the press coverage of the -- after the accident happened, the doctors talking about the Hans device and the full-frontal helmets and all of that. And I have to agree with what the doctor said, the Hans device may have not saved him. Dale Earnhardt is gone. They need to let the man rest in peace and it's nobody's business to look at the autopsy photos.

COSSACK: All right. Thank you. Let's now go to Thom Rumberger. Thom, I know you have just a short time with us. I'd like to get your response now.

RUMBERGER: Well, obviously, I agree with Angela 100 percent. But I would only say that and reiterate, that the Hans device is available and if they wish to wear it, certainly they can. If there's a problem with NASCAR, then I would suggest it's the media and NASCAR and not Mrs. Earnhardt and the photographs that should provide some platform for the sentinel, or really any of the other media, to cast out and look for false information or information that intrudes into their privacy.

One last comment: the right of privacy, at least in my opinion, surpasses the freedom of information act that Paul spoke about. And in this instance, it's desperately needed for the protection of the family and for the protection of the minor child. And it just seems to me that the privacy overwhelmingly supports Mrs. Earnhardt in her quest to keep these from the public. Thank you.

COSSACK: All right. Thom Rumberger, thank you for joining us today.

Up next: when in doubt, pass a law. Florida state Senator Jim King in the Earnhardt family protection act right after this. Stay with us.

(COMMERCIAL BREAK)

(INTERRUPTED FOR BREAKING NEWS)

COSSACK: In 1998, 16-year old Nicholas Contreras died while living at the Arizona Boy's Ranch, a juvenile detention facility. The Arizona Republic printed Contreras' autopsy photos on the front page, with his family's blessing. The Ranch was forced to close the campus where Contreras lived and fire several staffers in the aftermath.

Welcome back to TALKBACK LIVE, I'm Roger Cossack in for Bobbie Battista. Joining us now is Jim King, the Republican majority leader of the Florida state Senate. He's working with Governor Jeb Bush on something called the Earnhardt Family Protection Act.

Jim, why do we need a new law?

JIM KING (R), FLORIDA STATE SENATE: Well, quite frankly, Roger, it wasn't until we found out that the medical examiner and records in this state are not considered part of medical records, but are in fact considered part of open records, that we even knew we had a problem.

It wasn't until Theresa Earnhardt and the NASCAR people called me -- I represent a district that has NASCAR in it -- the Daytona track is in it --that we started to evaluate what was going on and what might happen if we didn't step in.

So, quite frankly, what we are trying to do with this legislation, Roger, is to still allow assessability to legitimate requests for those photos, while cutting off the more sensational or the tabloid or the Internet folks from commercializing them or, in any other way, demoralizing the family with widespread global presentations.

COSSACK: Jim, how do you decide who has a serious purpose in having these obviously sensitive materials, and who doesn't? And -- the old lawyer in me -- how do you reconcile this with the First Amendment that says, freedom of press and access to these kind of activities.

KING: Roger, first of all, this is not a First Amendment issue yet. Right now it's an open records issue. It would become a First Amendment issue if, for example, the "Orlando Sentinel" did get access to the photographs under the premise that they would not publish and then actually published them. At that point, is a First Amendment battle.

But right now, I'm looking at it as an open record battle. How I balance it is, anybody who has a legitimate need -- and we have transferred the responsibility from making that determination to the circuit judge -- who would reside in the county in which the coroner's office or medical examiners office was. The circuit judge would be responsible.

We told the circuit judge in this legislation, here are the things you can do: one, you can allow someone to look at the pictures in your office or under the purview of the medical examiner. Two, you can make the determination that the person can take the pictures; and the "Orlando Sentinel's" case, even send them to the doctor in Miami who is a head trauma specialist. Or three: the judge could say, hey, I see no clear and compelling reason why the world shouldn't see these pictures, and so I'm ruling against you. Or four: the judge could say, I can see no clear or compelling for anybody to see this and certainly not your request.

So there isn't really any difference, other than the fact that the legislation is designed to protect the sanctity of what I would consider just humaneness.

COSSACK: Paul, what is wrong with that? It seems fairly reasonable; it is trying to balance competing interests; obviously, the freedom of the press. Yet, someone's right to privacy over these very, very most sensitive issues -- what is wrong with that?

MCMASTERS: Roger, I would disagree with Senator King and his characterization that's it not a First Amendment issue yet. I think access to information, the right of the people to receive information is a clear First Amendment right. Free speech and free press don't mean a thing if you can't have access to government information. So I do think that is something to consider.

I also think the judges in Florida already have the right to review such things as we saw in 1990 in the access to the autopsy photos in the Gainesville murders. What I would like to point out is, the people of Florida have overwhelming said, in recent polls, that they support maximum access to government information. And I would really worry about a rush to legislation in this sort of heat of passion -- and heat -- over this very compelling issue.

So I think, for instance the legislation as proposed would make it a felony even for the Earnhardt family to view the autopsy photos. So I think that citizen review of government decisions and government information is a very important principle and that it is founded directly in the First Amendment.

COSSACK: Let me read some e-mails. We've collected some e-mails during our time on show. From James in Indiana, says:

"Once you start chipping away at freedom of information, you run the risk of closing down all access to public records.

That's that First Amendment argument that we are talking about and all Americans pride so much. Another one here:.

"Why is Dale Earnhardt so special? They ran photos of President John Kennedy's autopsy, didn't they?"

Warner sends us that. Robin says:

"You know, it's not necessary to know the exact cause of Dale's death to improve safety. Keep Dale's photos private; there is no benefit to be gained from seeing them."

Paul in Ohio says:

"The thought of viewing someone else's autopsy leaves a sinking feeling in my stomach. The deceased has a right to privacy, as well as the living."

Linda in Indiana says:

"We applaud the law that the Florida legislature is rushing to push through. That kind of law helps all American's families maintain their privacy, and most of all, their dignity."

Senator, what about what Paul says, in fact, the way the law work in Florida right now would give enough protection that a judge could make decisions; why do you need a new law?

KING: The law in Florida as it is right now stipulates that it's public record. The family would have to intervene as the Earnhardts have right now to ask the judge to refuse to have the pictures made public. We would like to reverse the responsibility of proof and say, until and unless it's proven a necessity, then all of those pictures are going to be held in the sanctity of privacy.

It goes way beyond Earnhardt. If anybody -- quite frankly, I learned more about this than I probably ever wanted to. All you have to do: go on the Internet and type www.autopsy.com and see what happens and see whether you want your kid seeing pictures or if you want to see Dale Earnhardt or if you want see Marilyn Monroe or if you want to see your dead grandfather or what happens on the Internet.

There is a mind set in America because of the Internet in my opinion, and because of some of the more sensational folios that this type of stuff is sensational and people will rush and buy. I don't think that there's a clear and compelling reason for anything to just see those pictures of somebody on a gerney dissected.

On the other hand, I'm not the judge, but in the case of what the "Orlando Sentinel" is now seeing, I can see no compelling reason why the judge would not say all right, "Orlando Sentinel," you can see the pictures. You can bring your medical expert -- here, he can even look to see if the trauma for the head and make his determination. We are not trying to put a cloak over the right of public knowledge. What we are saying though, is we are more humane and a little bit sensitive to not only the public's right to know, but the way that the public find out. COSSACK: All right, Senator, let's take a break. We're going to take a look at the on-line viewer vote right after this. Stay with us.

(COMMERCIAL BREAK)

COSSACK: All right, we are back, and we have been discussing the tragic death of Dale Earnhardt and the request by the "Orlando Sentinel" newspaper to be able to view the autopsy photos in attempt to investigate whether or not the head and neck restraints are necessary.

Let's go to some of our audience and get some comments from our audience. We have a nice young man up here -- David, your thoughts?

DAVID: I think we are overlooking two major issues here. I think that first of all, the preparation that "The Sentinel" is trying to take in going in here and doing this is not well thought-out, and the fact that there might have two different opinions medically is only going to lead to further speculation and further disagreement.

Also, the effect that's going to be taken is mostly status quo, in the fact the HANS device is already becoming integrated into NASCAR, and they would have done it even without this happening. The desired effect that "The Sentinel" wants to take was going to happen even without the death. And just to use the death as a tool only leads to a further debate of freedom of press and nothing else for "The Sentinel."

COSSACK: All right, David, wow, David saved it -- I think David was laying in the weeds on us on that one -- he was waiting for us.

Senator, I know you have to leave, let me just ask you, what do you think the chances of your bill passing?

KING: It will be very heavily debated starting tomorrow. It will probably be amended starting tomorrow, but I think there's an excellent chance it will pass in the state of Florida.

COSSACK: All right, senator, thanks for joining us.

KING: Thank you.

COSSACK: Let's go back to the audience and see if you can get some more statements.

Pete, I know you have something to say. Come on. Pete had his own cheering section a few minutes ago. Pete, talk to us.

PETE: I think -- some comments have been made that because Dale Earnhardt was in the public eye, that his right to privacy has been waived, and I think it's a ridiculous notion that just because -- I mean, he is an American, we have a right to privacy, and I think should be protected, regardless.

And also, they pointed out that two other NASCAR racers this year have died from the same head injuries, and it's obvious that a head restraint like this would help regardless. I don't think that they need to release these photos for any reason whatsoever.

COSSACK: All right, Pete.

Paul, let me give you a chance to respond, go ahead.

MCMASTERS: Well, I worry about the legislation, Roger, for this reason. It turns on its head the fundamental principle of American citizens' residence in an open society.

It says we have to earn the right to have access to government information. That usually is stipulated in a Democratic society, and that's what worries me about this legislation, in addition to the fact that it is being rushed through.

I think American citizens and the residents of Florida should have a right to expect that any sort of legislation put forth should be done deliberately and with due consideration, and not rushed into law in the heat of the moment.

COSSACK: All right, let's take a look at TALKBACK LIVE online viewer vote and see what the folks are saying about whether the newspaper should get the photos. And I can tell you they are overwhelmingly against, 92 percent to 8 percent, that the newspaper should not get the photos.

That's all the time we have, thanks to our guests, our studio audience and you. Thanks for joining us. I'm Roger Cossack in for Bobbie Battista, bye-bye.

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