By Dan Horn
The Cincinnati Enquirer
An appeals court on Friday threw out the conviction of a pathologist who was accused of helping Thomas Condon photograph bodies at the Hamilton County morgue without permission.
The court also reduced Condon's prison sentence from 30 to 18 months, concluding that he had been punished too severely for his crime.
Condon and the pathologist, Jonathan Tobias, were convicted last year of gross abuse of a corpse for taking photos of at least nine bodies posed with sea shells, fruit, toys and other objects.
The case generated national attention after Condon said he thought morgue officials had given him permission to pursue "an artistic endeavor" involving photos of corpses.
Both Condon and Tobias have argued that prosecutors made them scapegoats in order to protect high-ranking morgue officials from public embarrassment and possible criminal charges.
In its ruling Friday, the Ohio 1st District Court of Appeals agreed that prosecutors had acted inappropriately during the trial and had, at times, made "grossly unprofessional" remarks to the jury.
"The prosecutor's comments were highly inappropriate and constituted prosecutorial misconduct," wrote Appeals Judge Robert Gorman, who was joined in the opinion by Judges Mark Painter and Howard Sundermann Jr.
The appeals judges said the prosecution's conduct was unfortunate but not severe enough to overturn the convictions.
Instead, the appeals court focused on whether prosecutors presented sufficient evidence to prove either man's guilt. The judges said there was enough evidence against Condon, but not Tobias.
"There was no evidence that Tobias took an affirmative action to aid Condon," the judges concluded. "The most that can be said from the testimony is that Condon and Tobias were friendly with one another."
Tobias' attorney, Marc Mezibov, said the decision Friday vindicates Tobias and clears the way for him to regain his medical license. His license was suspended after his conviction last year.
"It was very clear that Dr. Tobias had done nothing wrong," Mezibov said.
Tobias could not be reached for comment, but his mother, Jean, said the decision shows that Prosecutor Mike Allen was wrong to pursue charges against her son. She said he was singled out for prosecution while others at the morgue avoided charges.
"The 1st District's decision exposes Mr. Allen's hypocrisy," Jean Tobias said. "There is justice after all in America. The truth does count."
Allen declined interview requests Friday but issued a statement expressing disappointment that Tobias' conviction was overturned. He said he was "gratified," however, that Condon's conviction was upheld.
Condon's lawyer, H. Louis Sirkin, said he will appeal the decision to the Ohio Supreme Court and will ask that his client be allowed to remain free on bond pending the outcome of that appeal.
Sirkin said he was disappointed the appeals court did not feel the prosecution's conduct was reason enough to toss out Condon's conviction. At one point during the trial, Chief Assistant Prosecutor Tom Longano referred to Condon's photos as a "bull---- project."
The case against Condon began in 2001 when police learned he had taken hundreds of photos of bodies at the morgue. Morgue officials said they had given Condon limited access to the morgue to do preliminary work for the production of a training video. But they denied any knowledge of his interest in an art project involving dead bodies.
Family members have since sued the county, claiming the negligence of morgue officials allowed Condon to get access to the bodies.
"The doctor got off too easy, but he's not the only one involved," said Cynthia Folchi, whose 19-year-old daughter was among those photographed by Condon. "And Thomas Condon should have gotten more time."
The appeals court reduced Condon's sentence after concluding that Judge Norbert Nadel erred when he decided Condon had committed the "worst form" of gross abuse of a corpse.
The court determined that Condon showed a "callow indifference" but not the "same degree of depravity" as others who have abused corpses.
In a concurring opinion, Painter suggested that a further reduction of Condon's sentence might be warranted, although the court did not recommend it.
"Condon surely is not a threat to do this again," Painter wrote. "A prison sentence of any length would be sufficient to impress upon him the wrong-headedness of his behavior."
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