By Dan Horn
The Cincinnati Enquirer
Hamilton County Prosecutor Mike Allen told an appeals court Monday that he never gave anyone permission to enter the county morgue and photograph bodies posed with toys, sea shells and other objects.
Allen was accused last week of giving tacit approval for such photos when he wrote a legal opinion in 1999 to County Coroner Carl Parrott.
But in a brief filed Monday with the Ohio 1st District Court of Appeals, Allen said his legal opinion only authorized the production of a training video on autopsy procedures.
He said no other photos or videos - especially photos of bodies posed with props - were ever approved by the prosecutor's office.
The distinction became important last week when attorneys for photographer Thomas Condon and pathologist Jonathan Tobias argued that Allen's legal opinion vindicated their clients, who were convicted in 2001 of gross abuse of a corpse.
Condon photographed several bodies at the morgue in 2000 after posing them with toys and other props. Tobias was accused of giving Condon access to the bodies.
Allen angrily denied Monday that his opinions about the training video could be interpreted as giving permission to Condon and Tobias to take the posed photos.
"These opinions are not in any way relevant to the outrageous conduct of Mr. Condon and Dr. Tobias," Allen said. "We're talking apples and oranges here."
He described Tobias and Condon's interpretation of the legal opinion as a "thinly veiled attempt to hoodwink the court of public opinion."
Lawyers for Condon and Tobias have argued that the issue of permission - or the lack of it - was crucial throughout their trial in Common Pleas Court. They say the jury might have convicted their clients because it never got the chance to see Allen's legal opinion.
Judge Norbert Nadel ruled that the opinion was not relevant to the case and ordered it sealed from public view.
In the legal opinion, Allen states photos or videos of bodies would not require the consent of relatives as long as the photos were used for training purposes. The opinion stated that other types of work also would not require consent, such as "a literary work, dramatic work ... or audiovisual work."
Condon has said he took the photos as "an artistic endeavor."
"The essential facts of the case were clearly clouded by the inability of jurors to see this (legal opinion)," said Tobias' lawyer, Marc Mezibov.
Mezibov has asked the appeals court to allow him to make new arguments about why his client deserves another trial. He said he was unable to fully argue the case because he did not see the legal opinion until it became public last week.
Allen said the opinion is irrelevant because it applied only to someone making a training video, not to someone moving, manipulating or posing bodies with objects.
The opinion "has no effect on the fact that Thomas Condon had never been given permission to abuse the corpses of the victims," Allen said.
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