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Hamilton County Prosecutor Michael Allen gave the go-ahead for photographing corpses at the Hamilton County Morgue, according to attorney Marc Mezibov.
In a hearing April 10 in Common Pleas Court, Mezibov argued Allen gave a formal legal opinion allowing production of a videotape in the morgue, under certain conditions. Mezibov represents Dr. Jonathan Tobias, one of two men indicted in connection with photographs of corpses at the morgue.
Mezibov says Allen told Coroner Dr. Carl Parrott, “As long as the deceased are not identifiable, it is not necessary to obtain permission from the decedents’ families.”
Mezibov says he cannot say with certainty what is in the November 1999 correspondence between Parrott and Allen, because Allen hasn’t surrendered it, citing attorney-client privilege. Mezibov says he learned of the alleged letter through the course of the defense’s investigation.
Mezibov, however, contends the legal opinion is a public record and should be made available.
Tobias, who had been an assistant coroner, and photographer Thomas Condon each face 12 counts of abuse of a corpse and a count of breaking and entering. In addition, Tobias is charged with theft in office, for allegedly giving Condon crime-scene photos. Condon allegedly made photographs of corpses, in various stages of autopsy, with props.
Defense attorneys and county prosecutors argued before Judge Norbert Nadel April 10, each contending lawyers from the other side have a conflict of interest. In the end, neither was victorious, with Nadel denying motions to disqualify attorneys from either side.
Numerous motions have been filed in the case. Nadel denied all but one, along with the requests for evidentiary hearings. Nadel will, however, hold a hearing in May on a motion by Condon that evidence obtained during execution of a search warrant be suppressed.
Condon told police Tobias knew he was taking the photos, according to statements in court by Thomas Longano, chief assistant prosecuting attorney. Condon also admitted to officers that he never told Parrott about the use of props in the photos, Longano said.
Mezibov asked Nadel to dismiss Tobias’ indictment, accusing Allen of outrageous and unethical conduct in statements to the media. Mezibov also argued the indictment should be dismissed because of the presence of an unauthorized party — Allen himself— before the grand jury.
“(Allen’s statements) were meant for no other purpose than to cast these defendants as ghouls and demons,” Mezibov said.
But Assistant Prosecuting Attorney Judith Mullen scoffed at Mezibov’s argument.
“We all know the prosecutor is the authorized person to be before the grand jury,” Mullen said.
In arguing to disqualify defense attorneys from the case, Longano told Nadel that in all his years of legal practice he had never filed such a motion. But Nadel one-upped Longano.
“I’ve never granted one, either,” Nadel said, denying the motion.
The judge did not change his record Tuesday.
Longano said he was confident the prosecutor’s office could convince a jury to convict Condon and Tobias on “at least a substantial portion of felony charges.” Longano said he doesn’t want to give Tobias and Condon grounds for appeal because of conflicts of interest on the part of their own defense attorneys.
If that were to happen, Longano said, “The state is stuck with it, and in essence we’ve been denied the right to a fair trial.”
But Mezibov argued Longano cast the case incorrectly.
“The case is not appeal-proof, as Mr. Longano puts it,” Mezibov said.
The conflict of interest, Mezibov said, belongs to Allen, who has an interest in convicting Tobias as a way to free the county from liability in a civil lawsuit filed by the families of the photographed deceased.
Nadel says the defense can have Condon’s photos, the identities of those pictured, autopsy records and the names of the family members. But defense attorneys cannot contact victims’ families without the permission of the court and the lawyers of those families and cannot release outside their office any materials given to them by prosecutors. ©
This article appears in Apr 11-17, 2001.