In 1990, five families lost their children, all college students in Gainesville, Fla., to a serial killer who grotesquely mutilated his victims.
In 1994 a new outrage confronted those same families: Florida media outlets filed for access, under the state’s public disclosure law, to crime-scene photos that were beyond horrific. The families hired lawyers, arguing that the public’s right to know did not exceed the families’ right to privacy.
The judge’s resolution of that long-ago case seemed to find a middle ground where none was apparent.
Now, 16 years later, another family faces a remarkably similar heartache: Using the Georgia Open Records Act, a Hustler magazine writer recently requested crime-scene photos of Meredith Emerson, the Buford hiker who was stripped naked and decapitated in the North Georgia woods in 2008.
Emerson’s family responded almost exactly the same way as the five families in the Florida case in 1994: Publishing the photos “would bring further stress and strife over what is already too much sadness to bear,” Susan Emerson, Meridith’s mother, said. The family quickly obtained a temporary restraining order barring the photos’ release.
Georgia lawmakers acted almost as quickly as the Emerson family. House Bill 1322, the “Meredith Emerson Privacy Act,” would change the state’s open records law to prohibit public disclosure of gruesome crime-scene photos.
The matter has rekindled the debate over how to balance the rights of the public with those of crime victims and their families.
“It’s important that we protect families who have been victimized by heinous crimes from further being victimized by unbelievably intrusive invasions of their privacy,” House Speaker David Ralston (R-Blue Ridge) told The Atlanta Journal-Constitution late last week.
The version of the “Meredith Emerson Privacy Act” approved unanimously last week by the House Governmental Operations Committee appears to allow broad exemptions to the Georgia Open Records Act.
It would bar the disclosure of “crime scene materials which depict or describe a deceased person in a nude, bruised, bloodied or broken state with open wounds or in a state of dismemberment or decapitation.” This could be read to include not just crime-scene photos but also the police reports that describe such killings.
Ralston said lawmakers were still working on the bill’s language. “We’re not trying to unduly restrict legitimate access to these types of materials,” he said.
Seeking a balance
First Amendment lawyers say the public’s interest must be carefully balanced against the privacy interests of a crime victim’s family.
“Crime-scene photos are extremely important to reporters to better understand a crime,” said Miami lawyer Tom Julin, who represented the news media in the case involving the slain Gainesville college students. “They can serve an extremely important public service.”
The judicial system, he added, “gets its credibility from its openness. But if you take the most crucial evidence and bottle it up, it puts them in the position of saying, ‘Trust us.’ The evidence should be made available for the public to see.”
Atlanta lawyer Tom Clyde, who represents the AJC, said some of the most important work by the news media comes when reporters are allowed to inspect photographic evidence of grisly deaths.
“When inmates die in jail or children die in state custody, photographic evidence is frequently the best evidence that there was abuse that needs to be exposed.”
In the Internet age, these types of controversies are not expected to go away anytime soon.
Perhaps the most shocking example involved Nikki Catsouras, an 18-year-old college freshman from Orange County, Calif., who died in a high-speed car crash while driving her father’s Porsche on Halloween 2006. After two California highway patrolmen shared photos of the crash, including one of Catsouras’ nearly severed head hanging out a shattered window, the pictures went viral over the Internet.
More than 2,500 Web sites posted the crash photos, and the student’s father, Christos Catsouras, received taunting e-mails containing the pictures. One, entitled “Woo Hoo Daddy,” said “Hey Daddy I’m still alive.”
“That’s a perfect example of what can happen,” said Jon Mills, a Florida law professor and lawyer who represented the Gainesville students’ families. “It’s sociopaths who are doing this. You can’t even define their interests. And, sadly, that’s the new world.”
Florida judge’s solution
Mills said the judge overseeing the case arrived at an acceptable compromise. The news media and public were allowed to inspect the photos under the supervision of a records custodian, but were prohibited from removing or copying the items.
Under this procedure, “the victims’ families have no justifiable fear of being confronted with these photographs in a public forum,” Judge Stan R. Morris wrote in his order issued in 1994.
As many as a hundred journalists and members of the public went to the courthouse to view the photos, Mills said. One of the victims, an 18-year-old student, was found decapitated, her head left on a bookshelf.
Mills also represented the widow of Dale Earnhardt, the NASCAR champion who died instantly of head injuries in 2001 when his car hit the wall during the final lap of the Daytona 500. After the Orlando Sentinel sought autopsy photos under Florida’s open records law to determine whether better safety equipment could have saved Earnhardt’s life, Teresa Earnhardt allowed an expert to examine them so long as they were not disclosed to the public.
But when another publication later requested the autopsy photos, she successfully lobbied the Florida Legislature to enact the “Earnhardt Family Protection Act,” keeping the photos under seal.
Georgia’s Open Records Act also exempts autopsy photos from public disclosure, unless a family member provides written consent or a judge decides the public’s interest in the photos outweighs any privacy interests asserted by the next of kin.
GBI Director Vernon Keenan said that while the law is clear about autopsy photos, it is “confusing” when it comes to crime-scene photos. Keenan said he believes a change is needed to limit the release of gruesome crime scene photos that would traumatize victims’ families.
Still, said Keenan, “A blanket bar prohibiting the release of documents is a slippery slope for open government. The bar should be very limited.”
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