Autopsy photos: balancing privacy against public interest

Friday, June 1, 2012

At first glance, the decision by a federal appellate court in San Francisco this week holding that families have a constitutional right to keep autopsy photos private would seem to be unassailable.

After all, why should the public have any right to see these often grisly photos? What possible justification would there be for making such horrifying images available to anyone outside of the family?

Well, the case that led to the 9th U.S. Circuit Court of Appeals decision is a pretty good example.

In 1983, a 2-year-old named Phillip Buell died from a head injury. He was being watched by Kenneth Marsh, then the boyfriend of Brenda Marsh, the boy’s mother.

Kenneth Marsh maintained that the boy was injured when he fell off the couch and hit his head on the fireplace hearth, but law enforcement didn’t buy that explanation and charged him. He was convicted of second-degree murder and sentenced to 15 years to life in prison.

Twenty-one years later, new medical evidence suggested the death may have been an accident. Marsh’s conviction was set aside and he received compensation from a fund for the wrongfully convicted.

This turn of events troubled Jay Coulter, the deputy district attorney who had prosecuted Marsh. As the court recounted: “It appears that Coulter was frustrated that Kenneth Marsh’s conviction was overturned, and wanted to prove that Marsh was in fact guilty by publishing his story, ‘What really happened to Phillip Buell,’ along with what he thought was a damning photograph.”

That photograph was a photocopied autopsy image from 1983 and the now-retired Coulter’s dissemination of it to the press led to a lawsuit by the boy’s mother. Although the media did not publish the image, she contended that her privacy had been invaded and she was suffering emotional distress.

Now for the first time, a federal court has concluded that the right to keep autopsy photos private is constitutionally guaranteed.

This is not entirely new ground. In 2004, the U.S. Supreme Court in National Archives & Records Administration v. Favish found  significant privacy rights surrounding autopsy photos, including the concept of “survivor privacy.” But it didn’t go as far as this federal court.

The 9th Circuit was clearly influenced by its perception of the current state of media and the Web. The boy’s mother said she had suffered severe emotional distress out of concern that she might one day come across her son’s autopsy photo on the Internet.

The appeals court concluded: “Marsh’s fear is not unreasonable given the viral nature of the internet, where she might easily stumble upon photographs of her dead son on news websites, blogs or social media websites.”

Stumble upon a specific autopsy photo without looking for it? Not likely. Yes, there are some fringe individuals out there capable of posting virtually anything, but to suggest that news websites or Facebook would showcase this kind of material is ill-informed. We’ll find ourselves shutting off public access to a lot of content if the fear is that somebody somewhere at some time might post it.

The more pressing question is whether the state of California rushed to judgment and prosecuted an innocent man, sending him to prison for the rest of his life. In this case, and others like it, access to information about the crime — including autopsy photos — helps the press and public understand whether our law enforcement officials operate ethically and professionally. That’s no small thing.

It’s easy to understand why in an age of multi-platform tabloids, some would want to keep autopsy photos out of the hands of the press and public. That can be done with legislation that balances privacy rights against the public interest. But transforming a family’s privacy interest into a constitutional right raises the bar immeasurably.

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