By Sharon Coolidge
The Cincinnati Enquirer

New evidence in the case against a man convicted of photographing corpses at the Hamilton County morgue without permission means he should get a new trial on one of the eight charges, the 1st District Court of Appeals ruled Friday.

If the new trial is granted, Thomas Condon could walk out of prison May 5 - six months earlier than his November release date.

The court said Hamilton County Common Pleas Judge Norbert Nadel must allow Condon's attorney to file a motion asking for a new trial. A hearing on that motion is scheduled for May 4.

"We have all but ordered the trial court to grant a new trial," said 1st District Court of Appeals Judge Mark Painter. "The new trial should be scheduled immediately."

Condon was convicted of taking pictures of autopsied bodies posed with inanimate objects on several occasions. Authorities said that Condon was with a forensic pathologist during the photography sessions. But in a separate legal proceeding, that pathologist said Condon was not present at one of the photography sessions, of which he was convicted.

Jennifer Kinsley, Condon's attorney, told Condon about the court's ruling Friday.

"He feels in some sense vindicated for being convicted of something he didn't do," she said.

Hamilton County Prosecutor Mike Allen said he plans to ask the Ohio Supreme Court to review the appellate court's 2 to 1 decision.

Condon, 32, and Dr. Jonathan Tobias were charged after police found hundreds of negatives inside Condon's photography studio depicting autopsied bodies posed with such things as an apple, sheet music and books.

Tobias, who was doing a one-year fellowship at the morgue at the time, was accused of helping Condon gain access to the bodies between August 2000 and January 2001.

Condon, a commercial photographer, was first hired by morgue officials to update an autopsy training video. He was given official access to the facility. When the project was scrapped, administrators did not rescind his access.

Condon has said he believed he had permission to take the photos for an art project, but officials at the Hamilton County morgue say they knew nothing about his photos of posed bodies.

The men were convicted in 2001 on gross abuse of a corpse charges.

The appeals court threw out Tobias' conviction and reduced Condon's sentence from 30 months to 18months.

In 2003, relatives of those photographed filed a federal lawsuit against Hamilton County asking for $12 million.

In a deposition taken during the federal case, Tobias discussed photographing Perry Melton's body on Nov. 9, 2000, saying: "Condon was not with me when I took the pictures of (a certain dead body)."

It was information not known at trial because Tobias did not testify.

Kinsley seized on that comment, saying if the jury had known that, they never would have convicted Condon on that one charge.

Nadel denied the request for a new trial, which was the basis of the appeal.

1st District Court of Appeals Judge Rupert Doan acknowledged that most courts would not see sworn statements taken in a deposition as newly discovered evidence because of its untrustworthiness.

"While these concerns are valid, they are best handled on a case-by-case basis," Doan wrote. "The trial court will have the best opportunity to determine the credibility of the newly discovered evidence."

He pointed out that although Tobias cannot be retried, he is still involved in a civil suit and could face substantial civil liability.

"Therefore his testimony is more reliable than the average co-defendant implicating himself to exonerate someone else."

Painter concurred with the decision, with Judge Lee H. Hildebrant dissenting.

"(Tobias) potentially faces little or no civil liability because, based on his affidavit, he took the pictures of (the corpse) in the course of his employment, which potentially grants him immunity from any civil liability," Hildebrant wrote.

Allen agreed with Hildebrant's interpretation.

E-mail scoolidge@enquirer.com