By Dan Horn
The Cincinnati Enquirer
Hamilton County Prosecutor Mike Allen was accused Tuesday of ignoring his own legal advice when he prosecuted a pathologist and photographer for taking photos of bodies at the county morgue.
The accusations are based on a letter Allen wrote in 1999 to County Coroner Carl Parrott.
In the letter - made public Tuesday - Allen told Parrott that families did not necessarily have to be notified before the bodies of their loved ones were photographed or videotaped at the morgue.
The letter is important because a year after writing it, Allen's office prosecuted photographer Thomas Condon and pathologist Jonathan Tobias for taking photos of bodies at the morgue without permission. To Tobias and Condon's lawyers, the letter shows that prosecutors punished their clients for actions that clearly were not criminal.
"I'm shocked," said H. Louis Sirkin, Condon's lawyer. "This would have had a profound impact on the case."
Condon was charged with multiple counts of gross abuse of a corpse for taking photos of bodies that were posed with objects such as sea shells, keys and furniture from doll houses. The bodies were in various stages of autopsy.
Tobias faced similar charges for helping to give him access to the morgue.
Tobias and Condon argued that morgue officials knew about the photography work, which Condon described as an "artistic endeavor."
Condon was convicted and sentenced to two years in prison, while Tobias was sentenced to five months. Both are now free while they appeal their convictions.
The issue of permission - or the lack of it - was crucial throughout their trial in Common Pleas Court. At their sentencing, Judge Norbert Nadel described the photo project as "the worst form of invasion of privacy."
But Nadel did not allow the jury to see the letter Allen wrote in 1999 about privacy issues and consent.
Despite objections from defense attorneys, who read the letter for the first time Tuesday, Nadel ruled it was not relevant to the case and ordered it sealed from public view.
Allen wrote the letter in response to questions from Parrott about the legality of producing a training video that would include film of bodies and autopsy procedures. Parrott wanted to know if he needed consent from families before filming their loved ones.
Allen told him Ohio law does not require consent as long as the videos or photos are not sold or used for commercial purposes.
"If the videotapes are to be used in conjunction with a course of instruction or are given away to others for such use ... no consent is required," Allen wrote. "All autopsies may be videotaped and those tapes may be maintained as public records." The letter also outlined other types of work that would not require consent, including "a literary work, dramatic work, fictional work, historical work, audiovisual work or musical work."
Allen declined to comment Tuesday on the letter or its potential impact on Tobias and Condon's appeal.
Although the letter does not address Condon's photo project, defense lawyers say the policy on consent would apply to Condon's project just as it would apply to the coroner's videotape project.
Tobias' attorney, Marc Mezibov, said the letter should have been made public during the trial. He said it was unfair for prosecutors to repeatedly comment about the lack of consent when they knew full well that consent was not needed. Mezibov said his client, as a county employee, was bound by the prosecutor's opinion. And if the prosecutor said consent was not needed, neither Tobias nor any other morgue employee had reason to question that position.
"There is no crime here," Mezibov said. "Jonathan Tobias had no reason to believe that (Condon) was not allowed to be there."
Families of those who were photographed could not be reached for comment Tuesday.
Mezibov has asked the Ohio 1st District Court of Appeals to allow him to make new arguments based on the letter. He said defense attorneys have been "constrained by the fact" that they did not get the letter sooner.
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