On March 31, the courtroom of First Judicial District Court Judge Matthew Wilson had a lot of lawyers on hand, in the room itself and on screens mounted above the benches and seats. I counted five people on one side, four on the other, with several more joining remotely.
They were there representing a range of interested parties, including the estates of the late Gene Hackman and his wife Betsy Arakawa-Hackman; Hackman’s children; Arakawa-Hackman’s mother; the Santa Fe County Board of Commissioners; the Santa Fe County Sheriff’s Office; the state Office of the Medical Examiner (OMI); and the Associated Press, CBS News and CBS Media Ventures, which produces and distributes “Entertainment Tonight.” The media outlets joined as “intervenors” opposed to the requests of the estates.
The central question was whether privacy concerns should prevent the release of sensitive information generated by investigations into the Hackmans’ deaths in February of this year. On March 17, Wilson had granted a restraining order that temporarily blocked public distribution of materials that the estate hoped to keep private. The goal of this hearing was to decide whether that order should stay in force.
A major concern for the estate has been the potential release of photos and videos that show the bodies of Hackman and Arakawa-Hackman; the inside of their home; and any body camera footage that showed their bodies or the body of Zinna, a dog who died with them. The estate also wanted to block release of autopsy photos and the autopsy reports. During the hearing, a lawyer representing the OMI said the reports have not been completed yet, and did not provide a date for when they will be.
The voiced concern stems from the widespread interest in these deaths. In a brief filed on March 11, Kurt Sommer and Gary Coffin — lawyers representing the estates — called the release of such images “the bell that cannot be unrung.”
During an opening statement, Sommer used that phrase again as he stressed the likelihood that images of dead bodies, even if viewers were carefully monitored by the sheriff’s office or the OMI, would eventually result in a leak. He said there has been a “frenzy” surrounding this case, and claimed that some sectors of the media will inevitably exploit disturbing images for gain.
If the images were released to the media and public, Sommer said, it probably wouldn’t be good enough for viewings to happen “in person and under supervision.” He mentioned the possibility of someone going in with a hidden camera, stealing images and then distributing them around the world.
In statements made on behalf of the media interveners, Greg Williams, an Albuquerque attorney who serves on the board of the New Mexico Foundation for Open Government (NMFOG), argued for release of all requested materials, pushing back against the argument that the privacy rights of deceased persons transfer to estates or family members.
“Under New Mexico law,” Williams and Jean-Paul Jassy, a colleague from Los Angeles, argued in a March 28 motion, “deceased individuals (or their estates) have no such privacy rights and neither do family members of the deceased.”
Williams cited Smith v. City of Artesia, a 1989 case in which photographs of a dead girl’s naked body were allegedly circulated improperly by police officers. In that case, the motion said, the New Mexico Court of Appeals held that the girl’s right to privacy did not “extend to the surviving relatives,” so their right to privacy could not have been violated by distribution of the photos.
Williams also said that while CBS does want to obtain photos and videos from the scene — the interior of the Hackmans’ home — it has no interest in photos of the bodies. Use of such images, the motion said, “would run against CBS News’s standards and practices. CBS News would blur the bodies to the extent they appear in any footage or still images from the scene.”
Guidebook for burglars
The estate’s team also spent a considerable amount of time on a second line of argument, which is that photos and videos taken inside the Hackman’s home could serve as a sort of preview catalogue for thieves. They called a witness named Dan Cron, a criminal law specialist who has practiced in New Mexico for 43 years. He talked about a client in a murder case whose address was made public. Both the murder victim and the accused murderer lived here, Cron said, so thieves were able to ascertain that nobody was home, and the place got robbed — twice.
In the case of the Hackman home, Cron said, images obtained by front-facing law enforcement bodycams would give potential thieves “a blueprint to contents of the house, and would show vulnerable access points” that burglars could use to get in.
Wilson must not have been convinced by that. In the decision he delivered in the early afternoon, he only blocked the release of images showing bodies. He said it would be permissible for authorities to release bodycam video in which the images of bodies are blurred, but the contents of the Hackman home are not.
The judge’s order will also allow the release of autopsy reports, as long as images of bodies are either removed or blurred. Santa Fe County will have to make available all police photos, audio recordings and video recordings from their visit to the Hackman home, with the exception of visual depictions of the bodies, which will be blurred out of the photos and video. The text of autopsy results will be made available. This appears to be consistent with New Mexico’s Inspection of Public Records Act (IPRA), with one exception — typically autopsy photos are public. One way of looking at this case overall is that it’s a win for open records.
Is there a chance this case will be appealed, since neither side got everything it asked for? That’s not clear. Lawyers representing both the estate and the media interveners did not respond to a request for comment.
The order prohibiting the release of the autopsy photos will not affect future IPRA requests for records held by the OMI. “The ruling does not create a new exception to IPRA,” said Amanda Lavin, legal director for NMFOG. “Rather, the ruling only blocks the release of these autopsy photos — which normally would be treated as any other public record — because of the specific privacy interests of the parties in this case.”
Lavin added that even if this same issue were to be litigated in a New Mexico district court in the future, the court will likely consider the court’s ruling here, but will not be required to follow it. “An order like this from the district court is not binding precedent in the same way a court of appeals or supreme court opinion is,” she said.
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