Taking pictures of dead bodies is not so unusual. Pathologists at the Hamilton County Coroner's Office take photos prior to autopsies. They photograph wound patterns on corpses. They take pictures at death scenes to document the settings.
Showing pictures of dead bodies to others is not so unusual. Doctors take photographs at the morgue to teach others about their work as pathologists.
But the images that could send Cincinnati photographer Thomas Condon and pathologist Dr. Jonathan Tobias to prison are far from clinical. The photos depict corpses posed with keys in their mouths, cards bearing the word "Will" covering their pubic hair, gauze atop their eyes.
Several family members testified Condon took the photographs without permission from his subjects' next of kin. But was it a crime?
Condon and Tobias are on trial before Common Pleas Judge Norbert Nadel on a dozen counts each of gross abuse of a corpse. The issues facing the jury run the gamut from art to politics, with a bit of science in between.
The life cycle of an art project
In August 2000, Condon watched an autopsy at the coroner's office. He was preparing an estimate of the cost to produce a new video for a police seminar on death investigations. The old film did not show biohazard cautions and new autopsy techniques.
"We had this old 16-millimeter film that had been made God knows when," County Coroner Dr. Carl Parrott testified last week.
In June 2000 the coroner's office decided it could legally film an autopsy if the film were used in court as evidence — thereby becoming part of the public record — or if the next of kin gave permission.
But in late August or early September, Parrott learned the video would cost $10,000, more than was in the budget. The project would have to be postponed.
From that point forward, Parrott testified, Condon had no authorization to be in the autopsy arena.
But that's exactly where he ended up on a number of occasions during the next four months, taking photos of corpses. The most detailed morgue photos shown jurors last week were shot Jan. 7.
Tobias was performing an autopsy that day, on a person who had been badly burned. Morgue attendant Tyrone Smith went to the cooler to retrieve a body for a funeral home. When he opened the cooler, Smith testified, he found Condon with lights set up and a camera on a tripod.
"When I opened the freezer and walked in, his back was toward me and the lights were bright," Smith said. "He had a lab coat on. She (the corpse) was stretched out with the lights down on her."
Condon photographed the 19-year-old woman with a key in her mouth, her hair arranged around her head, a hypodermic needle stuck into her leg and a piece of tubing emerging from an incision in her midsection.
The tubing, according to Smith, was not in the woman's body when he had stitched her up.
Another of Condon's subjects was the body of a 2-year-old boy killed in an accident.
During a search of Condon's office and car, police found a snail shell, a key and a piece of sheet music used as props in some of the photos. They also found photos of death scenes and negatives of autopsies from the 1960s. On the stand, police referred to a book in Condon's home, by Joel-Peter Witkin — a photographer who shoots corpses, some with missing heads, as a matter of "philosophical reflection."
The prosecution is trying to paint Condon as a man with a mission and Tobias as his accomplice.
"Condon had his own agenda in mind from the beginning," said Assistant County Prosecutor Judith Mullen. "What he had in mind was to give himself the opportunity to do what he wanted with those bodies. Tobias was Condon's ticket into the morgue."
Condon's attorney, Louis Sirkin, hasn't denied Condon planned to work on his own project. In fact, Sirkin said, at a meeting before Condon was allowed into the autopsy arena, he told the coroner's staff that he wanted to do the art project.
"A few years ago Tom developed a creative interest in the life cycle," Sirkin said.
According to Sirkin, Condon had an arrangement with the coroner's office: If he did the video for the coroner, he could also do his own project. Condon proceeded with all the permission he believed necessary, Sirkin said.
Fiend — or fooled?
Tobias is the only coroner's employee charged in connection with Condon's photography project. His ex-wife once dated Condon. Tobias has an interest in photography.
Dissatisfied with the quality of pictures from the digital cameras the office recently started using, Tobias asked a morgue attendant to help him find an older camera.
Morgue attendant Clyde Gamble testified he had seen Condon in the morgue talking to Tobias about camera lenses.
"Jonathan liked to take lots of good pictures," Gamble said.
Tobias' attorney, Marc Mezibov, is painting him as a scapegoat, arguing Tobias was selected to take the fall for the photos. Tobias was singled out, according to Mezibov, in order to protect the county from liability in a lawsuit filed by families of the people in the photographs.
Under cross-examination, Parrott testified he suspended Tobias after the civil division of the prosecutor's office told him he had to act.
"I had three choices — fire him outright, because he serves at my pleasure, suspend him without pay, suspend him with pay," Parrott said. "I can't put him on vacation. So I suspended him without pay. That seemed the least painful."
At times testimony made Tobias look like a man duped by his friend the photographer. When he found Condon photographing a woman in a cooler, Gamble testified, Tobias was performing an autopsy in another room.
Condon had told the others he couldn't stand the smell of the burned body, according to Gamble. Gamble assumed Condon went into the cooler to avoid the odor.
Smith, the other attendant, said he later asked Condon and Tobias if they were allowed to take photos in the cooler.
"They just looked kind of puzzled for a second, but I told them I was just playing," Smith said.
Neither man answered. Smith testified he was afraid Tobias would report him to his superiors for questioning a doctor.
One employee who apparently doesn't worry about standing up to his superiors is Dr. Robert Pfalzgraf, chief deputy coroner. In testimony last week, Pfalzgraf said he questioned the suspension meted out to Tobias.
Tobias wasn't the first person in the office to make a mistake, according to Pfalzgraf.
"I specifically mentioned to Dr. Parrott that there had been people in our office that had released wrong bodies and one person did it twice," Pfalzgraf said.
Parrott did not suspend those employees.
Three doctors in the coroner's office met with Parrott, asking him to reconsider Tobias' suspension. All of the doctors thought Condon had the authority to be in the morgue, and no policy had been broken, Pfalzgraf testified.
On the witness stand, Parrott tried to take the high road.
"I don't care whether it's in policy that it's wrong — it's wrong," he said.
What the coroner didn't know, when he didn't know it
But not all of Parrott's testimony had the same air of certainty. Questioned by Mezibov, Parrott said he couldn't remember whether Condon had mentioned the art project.
"I don't specifically remember, although Mr. Daly remembers he wanted to do some sort of art project," Parrott said.
Terry Daly is an administrative aide for the coroner.
Parrott said he never authorized the art photos. He said he would have been happy to help Condon if the project passed legal scrutiny, just as the autopsy video had to.
Parrott testified he didn't even realize Condon had made a video Aug. 16, when he was authorized to watch an autopsy to prepare an estimate. Parrott said he learned of the video's existence when police found it in January 2001.
Daly, who did remember Condon's interest in an art project, testified he told Condon in October 2000 he would need permission from the next of kin to take the photos.
Pfalzgraf said he was not aware Condon was working on his own project. But Pfalzgraf said he understood he would be performing the autopsy Condon was to shoot for the coroner's office.
In any event, Pfalzgraf said, no one was ever told in staff meetings who could be at the morgue observing and taking photos.
The morgue staff proved to be accommodating. Gamble said he had been told Condon was in the morgue to work on a video project. Gamble said he lowered the temperature in the cooler so Condon would be more comfortable. No one ever told Gamble the video project had been cancelled.
It was Condon, according to testimony, who arranged for a photographer to talk with the doctors about ways they could improve their photography skills.
Photography is an important part of pathology, according to Pfalzgraf. When he sees a classic example of an injury, he said, he takes a picture for teaching purposes.
"I always take two — one for my files at work, and one for my personal collection," he said.
Today, Parrott said, the morgue has a written rule requiring death scene photos to be returned immediately to the office. No such rule existed when Condon was in the morgue. In the past, in fact, police officers were sometimes allowed into the morgue to take their own pictures.
"I have since put the kibosh on that," Parrott said.
Ironically it was the police and courts — not a book or gallery — who first showed Condon's work. If the privacy of the deceased is an issue, officials didn't seem concerned about it when they searched Condon's home. Photos seized from his home and car, including the picture of a dead young girl with a key in her mouth, were put in the court record. The photos were eventually sealed, but not until some appeared on a television news show.
Officer Sharon Dillman testified police asked about getting the evidence sealed, but Charlie Rubenstein, chief deputy prosecutor for the city, decided against it.
"We talked to Charlie Rubenstein, and he didn't feel it was necessary," Dillmann said. ©