photo by: Sara Shepherd

Carrody M. Buchhorn, second from right, appears with her legal team on Friday, Aug. 31, 2018, in Douglas County District Court. Buchhorn, convicted of second-degree murder in the 2016 death of 9-month-old Oliver Ortiz at a Eudora home day care, was scheduled to be sentenced but the hearing was delayed. Attorneys William Skepnek, right, and Kevin Babbit, left, are filing post-trial motions on her behalf. Attorneys Paul Morrison and Veronica Dersch, second and third from left, who represented her during July's trial, withdrew.

Carrody M. Buchhorn, who was convicted in July of murdering a baby, says she should be freed from jail immediately and get a new trial, because the coroner fed the jury “junk science” and her trial lawyers should have objected to him testifying at all.

But prosecutors have now responded, calling her arguments “an attempt to mislabel and misconstrue” the coroner’s actual testimony. They say strong evidence against Buchhorn — not trial mistakes — led jurors to convict her, and that the verdict should stand.

Prosecutors also stand by the coroner’s medical opinion that Oliver’s killer acted with extreme indifference to human life, which should factor into Buchhorn’s sentencing.

Buchhorn, 44, of Eudora, faces approximately 9 to 10 years in prison under state sentencing guidelines.

Her sentencing date has already been pushed back more than once because of the extensive post-trial filings. It’s now set for Feb. 21.

Before then, Douglas County District Court Judge Sally Pokorny is scheduled to hear testimony and rule on Buchhorn’s requests at two full-day hearings, one on Friday and one in early February.

In their response to attacks by Buchhorn’s new lawyers, prosecutors C.J. Rieg and Mark Simpson wrote that then-coroner Erik Mitchell was an “overly qualified” forensic pathologist whose testimony was appropriately derived from physical evidence.

Prosecutors said Buchhorn’s trial lawyers, former Kansas Attorney General Paul Morrison and Veronica Dersch, tackled the trial adeptly and with a legitimate strategy — it just didn’t work.

“Even if the defendant in this case no longer cares for the theory of defense, she received a fair trial with a robust defense,” prosecutors wrote.

•••

In July, after a nine-day trial including 16 hours of deliberations, a jury convicted Buchhorn of second-degree murder for unintentionally but recklessly killing 9-month-old Oliver “Ollie” Ortiz, of Eudora.

Oliver was in Buchhorn’s care at Sunshine Kids Group Daycare Home, 1307 Chestnut Lane in Eudora, the afternoon he became unresponsive and died, Sept. 29, 2016.

Only later, during the autopsy, were Oliver’s fatal skull fracture and other internal injuries discovered.

photo by: Contributed

Oliver Ortiz

The case hinged on what caused Oliver’s death, when it occurred and who was with him at that time.

Mitchell ruled Oliver’s death a homicide caused by blunt force trauma to the head.

He showed jurors photos of an inches-long fracture at the base of Oliver’s skull, surrounded by internal bleeding that spread over a quarter of the back of his head. More autopsy photos showed another large bleed beneath the skin of Oliver’s forehead.

Mitchell said Oliver’s skull fracture was caused by an incident forceful enough — not a drop, fall or the action of another child — to render him unresponsive right away and dead within minutes if no one intervened. He said Oliver’s injuries would have been immediately obvious to the person who hurt him.

Prosecutors contend that not only did Buchhorn inflict forceful injury on Oliver, she then laid him in his crib in a dark corner of the day care and left him to die.

“This demonstrates Mrs. Buchhorn’s extreme indifference to the value of human life,” they wrote.

•••

In their request for a new trial, defense team William Skepnek and Kevin Babbit argued that the coroner’s theory of Oliver’s death is “junk science”; that he wasn’t qualified to address neurological effects of head trauma; and that Buchhorn’s trial lawyers should have tried to get Mitchell thrown out of the trial.

The defense’s motion chiefly latched onto one phrase from Mitchell’s testimony, which the defense characterized as an “electrical interruption theory” for Oliver’s cause of death.

Child neurology experts hired by the defense to review the case said they’d never heard of such a theory of death.

Prosecutors rebutted, saying Mitchell’s mention of electrical interruption was simply an analogy to help jurors understand how a blow to the base of the skull — home to the brainstem — could render someone unresponsive immediately. They explained that if the brain stops transmitting orders to maintain a person’s breathing and heartbeat, death ensues.

“Dr. Mitchell did not invent a new theory of how an individual dies in his trial testimony,” prosecutors wrote. “Instead, he simply explained the practical effects of blunt force trauma to the head.”

Prosecutors said Mitchell is expected to testify at upcoming hearings that he was attempting to explain “a basic biological concept” to the jury. Mitchell left Kansas this summer to become chief medical examiner for Fond du Lac County, Wisconsin.

In a post-trial email to prosecutors, Mitchell elaborated.

“Trauma to the head is application of energy to the head and can lead to brain dysfunction without visible physical disruption of (the) brain,” Mitchell wrote.

As examples, he said blows to the back of the neck are used in martial arts to incapacitate and potentially kill, or in the classic “rabbit punch” to dispatch small animals efficiently. A blow forceful enough to break the skull “will release energy into the surrounding tissue, including the area of vital structures at the base of the brain,” Mitchell wrote.

Mitchell testified at trial that Oliver’s brain was not swollen, and that this indicated that Oliver’s death followed quickly after his injury.

•••

As for Buchhorn’s trial attorneys, they didn’t challenge Mitchell’s testimony “because they believed such efforts would be futile,” prosecutors wrote.

Among Mitchell’s credentials, he was Douglas County’s official coroner for more than 20 years, has conducted over 12,000 autopsies in his career, and spent 17 years reviewing hundreds of child deaths as part of the Kansas Child Death Review Board.

Instead of attacking Mitchell’s so-called “electrical interruption theory,” Morrison and Dersch hired an outside forensic pathologist to cast doubt on the age of Oliver’s head injury.

“Trial counsel for the defendant will testify that they did what any competent defense attorney would do in a case like this: they hired an expert witness to challenge the incriminating findings of the coroner, and they relied on that expert advice in developing their trial strategy,” prosecutors wrote.

•••

Buchhorn’s new lawyers have filed responses saying they still believe Mitchell was unqualified and his theories aren’t supported by science.

“Periodically, a case arises that is outside the scope of a general pathologist’s expertise. This is one of those cases,” Skepnek and Babbit wrote. “Under these circumstances a general practitioner must refrain from guessing about what happened and must consult with a specialist.”

They’ve also now filed a motion demanding that Buchhorn be released from jail immediately. They said she was sent there unfairly and shouldn’t have to stay in jail while the judge considers post-trial motions.

Buchhorn was allowed to be on house arrest throughout her case. Since her conviction, she’s been jailed without bond awaiting sentencing.

photo by: Mike Yoder

Douglas County District Court Judge Sally Pokorny listens to questioning by Carrody Buchhorn’s attorney Paul Morrison during trial on Friday, July 20, 2018.