photo by: Sara Shepherd

Child neurology specialist Yu-Tze Ng, a doctor at Children's Hospital of San Antonio and professor with Baylor College of Medicine, uses a model to explain brain injury on Friday, Dec. 21, 2018, in Douglas County District Court. Ng was among expert witnesses hired by Carrody M. Buchhorn to bolster her motion for a new trial, after a jury convicted her of murdering 9-month-old Oliver "Ollie" Ortiz at a Eudora home day care in 2016.

Two child neurology specialists said over and over Friday in Douglas County District Court that the coroner’s conclusion about how a baby boy died at a Eudora home day care was medically impossible.

Therefore, the caregiver recently found guilty of murdering the infant has been wrongly convicted and should get a new trial, her lawyer argued.

“The jury in this case was deceived by false testimony by an expert,” attorney William Skepnek said. “Dr. (Erik) Mitchell was telling a story that he made up, that was not supported by any medical authority.”

Carrody M. Buchhorn, 44, of Eudora, remains jailed without bond while she awaits sentencing in the 2016 death of 9-month-old Oliver “Ollie” Ortiz, of Eudora. In July, a jury found Buchhorn guilty of second-degree murder for killing Oliver unintentionally but recklessly, with extreme indifference to human life.

Buchhorn hired new lawyers and filed her motion for a new trial, arguing her first attorneys were ineffective because they failed to adequately challenge the coroner’s findings.

Judge Sally Pokorny heard some testimony on the motion Friday, but the matter is not yet settled. More testimony is scheduled, tentatively, for Feb. 7. Buchhorn’s sentencing is scheduled for Feb. 21.

Both child neurology specialists said they weren’t able to conclude how Oliver died, nor were they asked to.

However, both said they knew how he didn’t die: brain injury, in the manner the coroner described.

photo by: Sara Shepherd

Child neurology specialist Sudha Kilaru Kessler, a doctor at Children’s Hospital of Pennsylvania and assistant professor at the University of Pennsylvania medical school, responds to questions about pediatric brain injury from prosecutor C.J. Rieg on Friday, Dec. 21, 2018, in Douglas County District Court. Kessler was among expert witnesses hired by Carrody M. Buchhorn to bolster her motion for a new trial, after a jury convicted her of murdering 9-month-old Oliver “Ollie” Ortiz at a Eudora home day care in 2016.

Sudha Kilaru Kessler, a doctor at Children’s Hospital of Pennsylvania and assistant professor at the University of Pennsylvania medical school, called Mitchell’s description of Oliver’s death “bizarre” and “fantastical.”

“In all of the medical literature, in my many years of practice now, I have never heard this idea that you can have a blow to the head and death without any injury to the brain,” Kessler said. “That does not exist.”

Yu-Tze Ng, a doctor at Children’s Hospital of San Antonio and professor with Baylor College of Medicine, said he, too, had never heard of head trauma causing death with no visible injury to the brain within.

“It’s just not possible,” Ng said. “I would know about some theory like this, even if it was somewhat peripheral.”

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

At trial, he showed jurors autopsy photos of an inches-long fracture at the base of Oliver’s skull, surrounded by internal bleeding. 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, a fall or the actions of another child — to, in effect, immediately stun and shut down his brainstem, which controls the body’s vital functions such as breathing. Without intervention, he said, the patient would die within minutes.

photo by: Contributed

Oliver Ortiz

Mitchell said there was no visible injury to Oliver’s brain. He said there also was no brain swelling, which can occur from blows to the head and, over hours or days, cause death by squeezing the brainstem.

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

Kessler and Ng disputed what the defense called Mitchell’s “electrical interruption theory.” They said that for someone to die from a blow to the head, there must be visible injury to the brain.

Often, that is swelling, which does kill in the way Mitchell described, they said. They said it could also take the form of bleeding inside the brain. However, they said Oliver’s bleeding — while appearing “gruesome” in photos, as the judge put it — was more superficial.

Kessler said it was clear Oliver had a skull fracture, and that Oliver had died, but that those two things were not necessarily related as the coroner claimed.

“To make up something to fill that gap … is just not right,” she said. “It’s just a sad fact that sometimes children die and we don’t know why, no matter how hard we look.”

Kessler said she routinely gets requests to testify as an expert in criminal proceedings but, being very busy, has never said yes to one until looking over this case.

“It, honestly, was so shocking to me,” she said. “I was so taken aback, it almost felt like a moral obligation.”

photo by: Sara Shepherd

Carrody M. Buchhorn talks with her attorney William Skepnek during a break in court proceedings on Friday, Dec. 21, 2018, in Douglas County District Court.

In her cross-examination of both doctors, prosecutor C.J. Rieg pressed them on the comparatively few dead brains they’d worked with, emphasizing that their area of expertise was different from forensic pathology.

Rieg also emphasized that the doctors’ opinions lacked circumstantial information that forensic pathologists consider in addition to the body itself when making their findings. Rieg confirmed that neither doctor had much information about who was with Oliver when he died, his clean bill of health before the incident or his happy disposition at day care that morning.

Rieg and fellow prosecutor Mark Simpson indicated they plan to call Mitchell, who is no longer the county coroner, to testify later. They also plan to call Buchhorn’s trial lawyers, former Kansas Attorney General Paul Morrison and Veronica Dersch.

Morrison and Dersch did hire a medical expert, Seattle-based forensic pathologist Carl Wigren.

However, instead of attacking the coroner’s theory of death, they attacked the timing of the fatal injury. Wigren said at trial that microscopic evidence from tissue around the fracture indicated that Oliver’s injury had begun to heal before he died — meaning the injury occurred much earlier, not when Buchhorn was alone with him.

Buchhorn’s new defense team also hired legal expert Alice Craig, who reviewed the case and concluded that the trial lawyers erred. Craig is an instructor at the University of Kansas School of Law and an attorney with the Paul E. Wilson Project for Innocence and Post-Conviction Remedies.

However, the two medical experts were questioned the whole day Friday, and Craig never took the stand.

As they were throughout Buchhorn’s trial, many seats in the courtroom were taken during Friday’s hearing. About 20 relatives and supporters sat behind Buchhorn, and about 20 of Oliver’s relatives and friends — including his parents — sat behind prosecutors.

photo by: Sara Shepherd

Judge Sally Pokorny listens to testimony regarding Carrody M. Buchhorn’s motion for a new trial on Friday, Dec. 21, 2018, in Douglas County District Court. A jury previously convicted Buchhorn of murdering 9-month-old Oliver “Ollie” Ortiz at the Eudora home day care where she worked in 2017.

While she has yet to rule on Buchhorn’s request for a new trial, Pokorny on Friday definitively shot down another of her requests: when it comes to sentencing, to ignore the coroner’s opinion that whoever killed Oliver acted with extreme indifference to human life.

Pokorny said she would not act as a “super juror.”

“The jury has already determined that the defendant killed Oliver, and she did that under circumstances manifesting the extreme indifference to human life,” Pokorny said. “I’m not considering Dr. Mitchell’s testimony again at sentencing — that’s over.”

In recent court filings, Buchhorn’s attorneys also said that, in light of their experts’ opinions, Buchhorn should be released from jail immediately.

The judge on Friday did not hear arguments about or address that request. Buchhorn was taken back to jail after the hearing.