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Thomas Condon's photographs of cadavers at the
morgue have set off a political controversy.
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The most disturbing aspect of the controversy over art photographs taken at the Hamilton County Morgue might not be their depiction of corpses, but the politics swirling about -- and, some say, influencing -- the criminal prosecution. In decisions about whom to charge and whom to offer a deal, critics see partisanship at work. Prosecutor Michael Allen has vigorously denounced the photographs, but his courtroom strategy raises questions about who his real target is: the photographer who took them, or a low-level employee perfectly situated to take a fall for the county.
What do photos of the dead have to do with Hamilton County politics? The uproar over the photos themselves -- cadavers in various stags of autopsy, posed with props -- has missed what could be a bigger and more important scandal.
Aside from the expected debate over the photos' artistic merit and sympathy for the families who feel violated by the photos, the case illustrates the way one-party domination of the courthouse can effect the administration of justice. That is the view of attorneys for photographer Thomas Condon and assistant coroner Dr. Jonathan Tobias, but they are not alone. At least one county commissioner is raising questions about the morgue photo case, and he says he's getting few answers.
"I think there's a lot involved with this that involves the political integrity of Hamilton County," says Louis Sirkin, Condon's attorney.
The motto of the Hamilton County Prosecutor's Office declares its goal is "to pursue justice." But Tobias' attorney says Allen is instead pursuing Tobias, making him a scapegoat in order to free the county of responsibility in the morgue incident.
First a lawsuit, then arrests
In January, a photo processing lab gave police a set of photos Condon had taken at the morgue. Officers used the photos to obtain a search warrant of Condon's studio and home.
Because the photos were attached to an affidavit requesting the search warrant, they were part of the public record and quickly generated media attention, outrage -- and a lawsuit, filed Jan. 26 by none other than Stan Chesley, who perfected the form of litigation known as the class action. Chesley filed suit against Hamilton County on behalf of families of the deceased portrayed in Condon's photos.
In letters to newspapers, on radio talk shows and in Allen's comments to reporters, Condon was largely portrayed as a ghoul. But soon the questions turned to the morgue: How did he get inside to take the photos? Meanwhile, Allen all but promised the public someone would pay, declaring he would be "shocked" if no one were indicted.
On Feb. 12, more than two weeks after Chesley filed suit, a grand jury indicted Condon and Tobias on 12 felony counts of gross abuse of a corpse, 12 misdemeanor counts of abuse of a corpse and a count of breaking and entering. In addition, Tobias was indicted for theft in office for allegedly giving Condon photos of death scenes.
Tobias, hired at the coroner's office in July 2000 on a one-year contract, is the only employee charged in the case. His lawyer, Marc Mezibov, says the county is trying to blame the photos on Tobias in order to protect Coroner Dr. Carl Parrott and other county officials. The case amounts to a "concerted effort in the prosecutor's office and coroner's office to pass whatever blame there is to be passed to Dr. Tobias, to spare Dr. Parrott any political or financial penalties," Mezibov says.
But Tobias did nothing wrong, because Condon had permission to be in the morgue, Mezibov says.
Parrott denies knowing what Condon was doing -- something County Commissioner Todd Portune finds hard to believe.
"Is it reasonably plausible that nobody else knew, or knew what he was doing?" Portune says. "I think I have a high degree of skepticism about that. I don't know for certain. But you've got a course of conduct that went on for about five months, with repeated and lengthy visits with props and lights."
This isn't the first time private interests have found items of value in the remains of the homicide, suicide and accident victims at the morgue. Last time it was corneas. Hamilton County last year paid almost $5 million to settle a lawsuit by relatives of coroner cases whose corneas had been removed without relatives' knowledge.
If taking photographs is abuse of a corpse, Portune asks, what about taking body parts?
"The coroner's office, some years ago, was harvesting corneas and making them available to this vision outfit," Portune says. "If that's abuse of a corpse, why wasn't there a felony indictment when they were carving out peoples' eyeballs?"
Parrott says he had no idea Condon was spending a great deal of time at the morgue. But that line of reasoning might not be enough to shield Parrott from political fallout over the photos. The office of coroner is an elected position in Ohio. If Parrott didn't know about the art project, who was running the shop?
"Dr. Parrott is in charge there," Mezibov says. "How is it that he didn't know this fellow was taking these photographs with all this equipment?"
Parrott's claim of ignorance is calculated, according to Mezibov. If the county succeeds in convicting Tobias, it can argue he alone, a renegade employee, is liable for damages to the families.
"I think the entire prosecution is very political," Mezibov says. "I believe Dr. Tobias has been scapegoated."
How badly does Allen want Tobias? If motions filed late last week are any indication, the prosecutor wants Tobias even more than he wants Condon. Allen's staff stated his office has offered a plea bargain to the photographer in exchange for testimony against Tobias.
If convicted of all counts and given the maximum sentence, Tobias faces 17 years in prison. He currently is on unpaid suspension from the coroner's office.
Common tricks and conflicts of interest
Mezibov has called for Allen's removal from the case because of a conflict of interest. As county prosecutor, Allen represents the county in civil matters. Because Allen's client, the county, is being sued over the photographs, Mezibov argues, Allen has a vested interest in framing the photography scandal as a criminal act by two individuals -- not poor judgment or bad management on the part of the coroner.
"The defense of the civil action will require the county to defend Dr. Tobias' alleged conduct, or seek to characterize Dr. Tobias' alleged conduct as outside the scope of his employment so as to insulate the county from liability," states Mezibov's motion, filed on Feb. 27.
Allen has spared no adjectives in characterizing the photos, calling them "vile" and "sick," the most shocking thing he has seen in 25 years of law enforcement. Portune says Allen's remarks were so damning that he expects Allen to be the first witness called by families suing the county.
"The comments that came out of his office, in terms of the conduct that went on, were very damaging and injurious to the county," Portune says.
Allen's public attacks have vilified Condon, according to Mezibov, who has moved for dismissal of Tobias' indictment because of "outrageous and unethical conduct in the form of extrajudicial statements by the Hamilton County Prosecutor."
Allen's office has filed a memorandum in response, asserting Tobias' "legal contentions are unsupported by the facts."
Allen says politics have nothing to do with the case.
"Absolutely not, the case is not about politics," he says.
Attacking the prosecution is a "common trick" of the defense attorneys who "don't have a case," according to Allen. The county has retained a private attorney to fight the families' lawsuit, he says, so no legal conflict of interest exists.
"Outside counsel has been appointed, so that's not an issue," Allen says.
Nonsense, Mezibov says. The conflict was present even before Tobias was indicted.
"On the one hand, he's seeking to indict a county employee," Mezibov says. "On the other hand, he has an obligation to defend the county on the civil suit. Therefore, don't blame the county, blame Dr. Tobias. That's a conflict, as clear as it can get."
In a memorandum in opposition to Mezibov's motion, Allen's office blisters at the accusations.
"The defendant's contention that the prosecuting attorney would conduct the criminal case to benefit a civil case he is not even defending is both groundless and offensive," the memorandum says.
In another memorandum, Allen sneers that Mezibov "doesn't cite a single case in which an elected prosecutor was disqualified, because his statutory duties also require him to defend civil lawsuits. ... One would expect relevant cases to have been cited if they existed, given the defendant's willingness to scour the nation for the irrelevant."
Allen is not just a fellow party member and fellow officeholder with Parrott. Allen is former chairman of the Hamilton County Republican Party, a man reputedly hoping to follow former prosecutor -- and party chairman -- Joe Deters to Columbus.
Mezibov says Allen's campaign contributed to Parrott's campaign in the 2000 election. This is not surprising, given both men are Republicans. But Allen said last week he wasn't sure if he had contributed to the coroner's reelection campaign.
"I really don't know," Allen says. "But there's a good chance that that happened."
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Photo By Jymi Bolden
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Attorney Marc Mezibov says prosecutors are making a
scapegoat of Assistant Coroner Dr. Jonathan Tobias.
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Campaign finance records confirm Allen's campaign donated to Parrott's -- twice, at $500 each time.
"They're beholden to one another," Mezibov says. "At least it appears that way."
But the prosecutor's office, too, is charging conflict of interest -- on the part of defense attorneys. In a motion last week, Allen's office says it has offered Condon a plea bargain in exchange for his testimony against Tobias. Because Mezibov and Sirkin are partners in the same law firm, prosecutors argue their clients' interests are at odds, creating a conflict of interest requiring both lawyers be disqualified.
"Mr. Mezibov is ... now in a position where he cannot effectively represent his client, because the chief witness against his client has been represented by his law partner, Mr. Sirkin," the motion says.
A doctor on trial
Is Tobias a criminal or just an unlucky guy in the wrong place at the wrong time? According to Mezibov, the prosecution of Tobias has less to do with luck and more to do with passing the buck.
Interviews with past and present employees indicate Tobias was not the only member of the coroner's staff who allegedly accommodated Condon. Allegations include Condon being given his own lab coat and employees adjusting the room temperature for him. Sirkin refuses to comment.
If other morgue employees knew Condon was in the morgue, why is Tobias the only one charged? Allen refuses to say. But Mezibov says the reason is clear.
"He was the youngest, most expendable. Dr. Parrott was the least familiar with him," Mezibov says.
When the photos came to light, Tobias declined to be interviewed by police without his attorney.
"That decision may, arguably, have cost him his job," Mezibov says.
Born in South Africa, Tobias has lived in Cincinnati most of his life. His father is also a Cincinnati doctor. Tobias attended the University of California-Davis School of Medicine.
Chief Deputy Coroner Dr. Robert Pfalzgraf says he was impressed with Tobias' work and would have liked to hire him permanently. Pfalzgraf says he worked closely with Tobias from the time he started at the morgue in July. Pfalzgraf says he would have a trainee every year, and Tobias was probably "one of the best one or two I've ever had."
Dr. Ernest Lewis, associate dean for student affairs at the University of California-Davis School of Medicine, summed up his opinion in a 1997 letter of recommendation to the coroner's office.
"I am pleased to describe Jonathan as one of the most intellectually gifted students in his class," Lewis wrote. "He has a gentle and pleasant demeanor, which demonstrates the compassion which he feels for patients."
Tobias was one of 93 students accepted to the class from an applicant pool of 5,199 people, according to Lewis.
Pfalzgraf believes Tobias and Condon became friends due to their mutual interest in photography. As a deputy coroner, Tobias had to take photos and wanted to learn how to do it better -- something Condon could teach him.
"Jonathan sort of had an interest in improving his photography skills," Pfalzgraf says.
By coincidence, in high school Condon dated the woman who later married Tobias. The two men never really knew each other until they met in the coroner's office, Pfalzgraf says. He suggests Condon exploited his friendship with Tobias.
"I think Thomas took advantage of the situation," Pfalzgraf says.
Oh photos, where art thou?
The art photos have been on television news, but they haven't yet made their way to defense attorneys' desks. After a station broadcast blurred versions of some of the photos, prosecutors asked a judge to seal them. Allen says the photos were sealed to protect the privacy of the families of the dead. Sirkin and Mezibov are having a hard time determining what the photos show, because the prosecutor's office won't hand them over.
"They're resisting allowing us to see the photos," Sirkin says.
But many media outlets did get to see them, and Sirkin blames the Cincinnati Police Department.
"The families ought to be really mad at the Cincinnati Police Department," Sirkin says. "They're the ones that made the big thing out of this. Ninety-nine percent of the affidavits that they file they are so secret about and they get them sealed."
But Vice Squad Sgt. David Lovett says the decision to seal the documents containing the photos is not up to police.
"Sometimes they're sealed to protect the body of the investigation," Lovett says. "We can ask for the warrants to be sealed, but if the judge doesn't deem it necessary, he won't."
Lovett says the department mentioned sealing the documents to Municipal Judge Robert Taylor, but the judge didn't think it necessary.
"It's a case by case basis," Lovett says.
The photographs reportedly show corpses posed with syringes, snail shells, books, a large key and an apple. According to media reports, a search of Condon's studio also turned up a fake brain. But then what artist doesn't have a fake brain or two on his mantle?
Allen has gotten coy lately. Now he refuses to describe the photos in any detail.
"I'll stand by anything I said previously," he says.
For his part, Condon's lawyer refutes Allen's characterization of the photos.
"I think the statements made about the photos are inaccurate by Mr. Allen," Sirkin says.
When is a photo legal?
Condon and Tobias have declined requests for interviews. But Pfalzgraf relays something Tobias said.
According to Pfalzgraf, Tobias was blind-sided. Tobias, he says, compares his arrest to driving a friend to a convenience store, not knowing the friend is robbing the store, thereby making you the unwitting driver of a getaway car.
Parrott says Condon was indeed allowed in the morgue, but only to do an estimate on the cost of a training film. Parrott responded to questions from CityBeat in a written statement.
"Mr. Condon was permitted into this facility as the prospective videographer to be employed by another individual in the possible remaking of an old training film. His presence in this facility was to be time- and purpose-limited.
"He was to conduct preliminary studies to enable his prospective employer to provide an estimate of the cost of the project, which was found to be too high," Parrott wrote.
"Some months later, allegedly with the assistance of an employee, he secured readmittance to the facility and conducted unauthorized photography without the knowledge of the senior staff."
Parrott declined an interview, and Allen declined to say whether Parrott knew Condon was accessing the morgue.
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Dr. Jonathan Tobias is the only coroner's employee
charged in connection with Condon's art photos.
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But Sirkin says Condon had permission.
"There was no time that Tom was in that building that he was not permitted to be there," Sirkin says.
According to Pfalzgraf, Condon was not at the coroner's office to give an estimate on the video project, but "to do it."
"I was told twice to let him to watch me do autopsies," Pfalzgraf says. "I was never told that he was not to be there."
Mezibov says Tobias also understood Condon was allowed to be at the morgue.
"I believe there was a tacit understanding among all those people at the morgue, my client included, that Mr. Condon had the permission of Dr. Parrott," Mezibov says. "Dr. Tobias was never told that Condon should not be there."
The video Condon was working on, according to Pfalzgraf, was not a training video for coroners but rather a video for lay people, such as mystery writers and participants in the Citizen's Police Academy. Pfalzgraf says the office had an old film from the 1950s or 1960s, and the coroner thought a new one was needed.
Although Pfalzgraf says Condon was authorized to take still photos of bodies for the video, he was not authorized to take the art photos.
"As far as I know, no one knew that," Pfalzgraf says.
Pfalzgraf says he never had doubts about Condon's presence. After an autopsy, Pfalzgraf says, he often goes to another part of the office to change clothes. He didn't hesitate to leave the room when Condon was around.
"I figure he's been hired by people above me to do this job," Pfalzgraf says. "It never occurred to me not to walk out of the room to change my clothes. I'm a professional, he's a professional."
Pfalzgraf says he never questioned Condon's motives, just as he never suspects anyone authorized to be in the morgue of inappropriate behavior.
"It just never crossed my mind," he says. "It could have been me. It could have been any of the doctors here, because none of us knew he wasn't supposed to be here."
Pfalzgraf says security at the morgue is tight. Employees must enter a code into a keypad to gain access to the autopsy room, a code that, Pfalzgraf says, Condon never had. Condon might have simply followed an employee with a code into the room, as many medical students or homicide cops often do.
"There's nothing wrong with our security here," Pfalzgraf says.
"Everybody in that morgue believed that he had permission to be there," Mezibov says. "The security is not the issue here. The issue here is the chain of command and who knew what and who is disclaiming what."
Pfalzgraf says his only contact with Condon was in August, but he knew Condon had been in the office because he heard others mentioning his visits after that.
Interesting things
Sirkin says the photo prosecution has important political implications.
"I think this county should take a look at the political structure here," he says. "Really interesting things are being learned. I really think this matter should be looked at by an outside prosecutor from another county."
Portune agrees.
"The prosecutor's office has such a close working relationship with the coroner's office," Portune says. "There are always going to be lingering questions in the mind of the public of if the prosecutor dug deep enough or went far enough."
Portune says he has had a hard time getting answers.
"I asked Mike (Allen) a series of questions on Feb. 2 and have yet to get an answer," he says. "This whole case has confounded me from the beginning. I've been amazed at the reaction of some county officials at my efforts to decipher what went on."
In a letter in January, Allen gave his client a bit of legal advice: He told Portune to butt out.
"It is not necessary for the Board of Commissioners to become involved in a matter which falls within the exclusive jurisdiction of this office," Allen wrote.
Hamilton County Common Pleas Judge Norbert Nadel has scheduled a hearing on pretrial motions Friday. ©
