By Sharon Coolidge
The Cincinnati Enquirer
A Hamilton County Common Pleas judge ordered Thomas Condon to stay in prison while prosecutors appeal a ruling that he deserves a new trial on one of eight charges.
Judge Norbert Nadel on Tuesday said Condon cannot post bail until a judge resumes a hearing on the case in August.
If Nadel had granted the new trial, Condon - who was convicted of photographing corpses at the Hamilton County morgue without permission - could have walked out of prison Wednesday.
Condon's attorney, H. Louis Sirkin, said denial of bail was unfair.
Sirkin argued that Condon already has served 12 months of his 18-month sentence. Because the last six months of that sentence could be wiped out if Condon wins his appeal, Sirkin said it makes no sense to keep him locked up until he gets a new trial.
"It's ludicrous. It would be unfair to grant a new trial after (Condon) already served the sentence," Sirkin said.
But Assistant Hamilton County Prosecutor Tom Longano said Sirkin's argument doesn't hold up because it's unclear what charges the first year of Condon's prison term relate to.
Both sides are taking those arguments to the 1st District Court of Appeals.
Prosecutors are appealing the appellate court's new-trial decision to the Ohio Supreme Court.
At the same time, Sirkin is asking the Court of Appeals to order Nadel to move up the August hearing date and let Condon out of jail pending a new trial.
Condon, 32, and Dr. Jonathan Tobias were charged after police found negatives inside Condon's photography studio depicting autopsied bodies posed with various objects.
Tobias, a pathologist, was accused of helping Condon gain access to the bodies from August 2000 to January 2001.
Condon, a commercial photographer, was hired by morgue officials to update an autopsy training video. When the project was scrapped, administrators did not rescind his access.
Condon has said he believed he had permission to take the photos, which officials at the Hamilton County morgue denied.
The men were convicted in 2001 on gross-abuse-of-a-corpse charges. But later, the appeals court threw out Tobias' conviction and reduced Condon's sentence from 30 months to 18 months.
Tuesday's argument centered around a ruling by the Court of Appeals last month that new evidence related to one of the charges means Condon should get a new trial on that charge.
The court said Nadel must allow Condon's attorney to file a motion asking for a new trial.
In that motion, filed Tuesday in Hamilton County Common Pleas Court, Sirkin argues that the new evidence discovered in a federal civil case stemming from the photos must be considered.
During the federal case, Tobias discussed photographing a body Condon didn't know about.
It was information not known at trial because Tobias did not testify.
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