Calling coroner’s ruling ‘junk science,’ lawyers seek new trial for Eudora woman convicted of murdering baby

photo by: Sara Shepherd

Carrody M. Buchhorn, 44, of Eudora, reacts after the jury's verdict is read finding her guilty of second-degree murder on Thursday, July 26, 2018, in Douglas County District Court. Buchhorn was accused of inflicting a fatal head injury on 9-month-old Oliver Ortiz on Sept. 29, 2016, at the Eudora home day care where she worked.

Carrody M. Buchhorn’s murder conviction hinged on testimony of the coroner, who ruled that 9-month-old Oliver Ortiz’s death was a homicide and, at trial, explained the baby’s fatal injury to jurors.

Buchhorn’s plea for a new trial also hinges on testimony of the coroner.

Her lawyers are trying to get the conviction thrown out, calling the coroner’s theory of what killed Oliver “junk science at best” and even “a complete fabrication,” according to their brief requesting a new trial.

If that request fails, Buchhorn’s attorneys want the coroner’s testimony — particularly that whoever hurt the infant showed indifference to human life — barred from consideration when Buchhorn, 44, of Eudora, is sentenced.

“In this case a middle aged Kansas Mom, without any hint of prior criminality, stands convicted as a baby killer — murderer — for the very slightest of provocations, wanting to shut up a whiny baby or to express frustration with a difficult employer,” Buchhorn’s attorneys wrote. “She will be taken from her two sons and her husband and cast into prison condemned with horrible conduct upon a jury verdict that must now be seriously questioned.”

photo by: Contributed photo

Oliver Ortiz

Following a particularly emotional and graphic trial in Douglas County District Court, jurors deliberated 16 hours before convicting Buchhorn on July 26 of second-degree murder for unintentionally but recklessly killing Oliver. The afternoon he became unresponsive, Sept. 29, 2016, Oliver was in Buchhorn’s care at Sunshine Kids Group Daycare Home, 1307 Chestnut Lane in Eudora. Oliver’s skull fracture and other internal injuries were not discovered until the autopsy.

Prosecutors have yet to file a formal response to the defense team’s new allegations.

District Attorney Charles Branson said that’s in the works but declined to discuss details for this story.

“We have received the motions and will prepare a response for the Court,” Branson said, via email. “We are confident in the process and outcome of the trial.”

•••

Instead of waiting until after sentencing to get new lawyers, Buchhorn has already signed on a new team. Her trial attorneys, Paul Morrison and Veronica Dersch, have withdrawn from the case.

Her sentencing was scheduled for Aug. 31 but delayed until Oct. 18 to accommodate new filings. Judge Sally Pokorny is scheduled to rule on Buchhorn’s requests and, unless a new trial is granted, proceed to sentencing that day.

In their strongly worded brief, new attorneys William Skepnek and Kevin Babbit claim that Buchhorn’s trial lawyers were ineffective.

The trial lawyers did call a medical expert to dispute how old Oliver’s fatal skull fracture was, but the new attorneys say they should have disputed the qualifications of veteran coroner Erik Mitchell and his theory of how the head injury killed the infant, medically.

“Dr. Mitchell’s testimony is not merely a matter of disagreement, misunderstanding, or misapplication of known and understood medical principles or medical theories, it appears to be a complete fabrication,” Skepnek and Babbit said. “Dr. Mitchell’s electrical interruption theory does not even reach the level of junk science.”

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.

At the trial, which the Journal-World covered daily, Mitchell said Oliver’s death was a homicide caused by blunt force trauma to the head. Autopsy photos showed an inches-long fracture at the base of Oliver’s skull, accompanied by internal bleeding that spread over nearly a quarter of the back of his head.

Mitchell testified that the fracture was caused by an incident forceful enough — not a drop, fall or the actions of another child — to render him unresponsive right away and, without intervention, dead within minutes.

When asked by prosecutors whether lack of intervention indicated extreme indifference to human life, medically speaking, Mitchell affirmed.

Mitchell’s testimony at trial combined scientific language with colloquial explanations to the jurors.

The defense team’s objections focus on the “electrical” phrase from Mitchell’s explanation of how a blow to the base of the skull can halt life-sustaining body functions, such as breathing, before death is caused by the fracture and ensuing swelling.

“He gave the opinion that an electrical interruption of the child’s brain secondary to a blunt force trauma caused immediate or nearly immediate death,” defense attorneys wrote. “…Dr. Mitchell’s qualifications as a general anatomical pathologist did not qualify him to express the opinion that the child died as a result of an electrical interruption of his brain.”

The defense team’s brief includes opinions on the electrical interruption theory from two child neurology specialists, affiliated with universities and children’s hospitals and universities in Texas and Pennsylvania.

“It is not simply weak, it is actually unknown in the medical community, and unsupportable by the science,” defense attorneys said, citing the specialists. Attorneys emphasized that one of the doctors went so far as to call the theory “nonsensical.”

•••

In addition to numerous other complaints in their brief, Buchhorn’s attorneys said that, based on her life and character, it’s “terribly unlikely” she could have killed Oliver.

They say prosecutors blamed Buchhorn as “merely a way to blame someone,” and based their case on improper inferences without direct evidence.

“Ms. Buchhorn’s character and trustworthiness in caring for children is well documented through 44 years and the fact of that life is entirely inconsistent with any inference that she could have been the murderer of a helpless baby,” Skepnek and Babbit wrote.

They said Buchhorn was a stay-at-home mom who raised two “sterling” sons, acted as a “surrogate mother for other children who needed her,” was an involved parent supporting the football team and organizing prom at Eudora High School, and was married 25 years to a career soldier who’s done multiple tours of duty and currently is deployed overseas.

Buchhorn’s attorneys said she had no history of social or psychological problems, violence or drug or alcohol abuse.

They called the jury’s verdict “extraordinary.”

“It is difficult, indeed, un-justifiable, consistent with common sense, and the presumption of innocence to believe a person who has lived such a life would suddenly murder a baby, let alone do it in so callous and heinous a fashion,” they wrote.

Buchhorn, who was on house-arrest prior to her conviction, is now jailed without bond pending sentencing.

According to the DA’s office, Buchhorn faces 109 to 123 months, or approximately nine to 10 years, in prison under Kansas sentencing guidelines.

Contact Journal-World public safety reporter Sara Shepherd

COMMENTS

Welcome to the new LJWorld.com. Our old commenting system has been replaced with Facebook Comments. There is no longer a separate username and password login step. If you are already signed into Facebook within your browser, you will be able to comment. If you do not have a Facebook account and do not wish to create one, you will not be able to comment on stories.