Trial lawyer, former AG calls ineffective counsel claim ‘laughable’ at hearing for Eudora woman convicted of murdering baby
photo by: Sara Shepherd
In an effort to get a new trial, a Eudora woman convicted last summer of murdering a baby is arguing that her trial lawyer bungled the case.
That lawyer happens to have one of the most robust resumes in the state. Paul Morrison is a former Kansas attorney general and an 18-year Johnson County district attorney who’s dealt with hundreds of murder cases in his nearly 40-year law career, including some of the state’s most notorious.
Morrison took the witness stand Thursday in Douglas County District Court during a post-trial motions hearing for Carrody M. Buchhorn, 44, of Eudora.
In an atypical order of events, Buchhorn fired Morrison and co-defense attorney Veronica Dersch after her murder conviction in July but before her sentencing. Buchhorn hired new lawyers, William Skepnek and Kevin Babbit, who are arguing she should get a new trial because the coroner’s ruling was “junk science” and her first lawyers should have dealt with it differently.
Thursday’s was one in a series of hearings where Judge Sally Pokorny is hearing testimony and argument. She has yet to make a ruling.
Buchhorn’s next hearings are scheduled for Feb. 19 and 21, with sentencing planned on Feb. 21.
Buchhorn remains jailed without bond 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.
While in Buchhorn’s care at a Eudora home day care, Oliver became unresponsive and died on Sept. 29, 2016.
Only later, during the autopsy, were Oliver’s skull fracture and other internal injuries discovered. Former county coroner Erik Mitchell ruled his death a homicide, caused by blunt force trauma to the head.
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, Mitchell testified, the patient would die within minutes.
The person who was with Oliver when that happened was Buchhorn, prosecutors successfully contended at trial.
Buchhorn’s new attorneys are calling Mitchell’s explanation of Oliver’s death an “electrical interruption theory,” which two other medical experts they hired previously testified is not a possible cause of death.
Morrison testified Thursday that Buchhorn’s case was the top priority for him and Dersch for almost two years. He called accusations that they were incompetent, lazy, dismissive of medical expert advice or lacking in trial strategy “laughable” and “an absolute absurdity.”
photo by: Sara Shepherd
Morrison said his and Dersch’s plan all along was to attack Mitchell’s credibility and findings, which they did with the help of an outside medical expert, Seattle-based forensic pathologist Carl Wigren.
Morrison said that while Mitchell, a coroner in Kansas for decades, has done good work, this case was “sloppy.” Likewise, Morrison said, the coroner’s testimony wasn’t credible and his statements during the autopsy were meandering and inconclusive, which is why the defense showed video of the autopsy at trial.
“I thought it was rather buffoonish,” Morrison said.
“It would have been fairly apparent to anybody … that Mitchell, when he was conducting the autopsy, really had no idea what killed this kid.”
When asked why he didn’t challenge Mitchell’s “electrical interruption theory,” Morrison said he discussed it every time he talked to Wigren but didn’t specifically attack it at trial because he didn’t need to.
Wigren was “emphatic” that Oliver’s skull fracture was old and had already begun to heal, Morrison said. Based on that evidence, there’s no way the skull fracture could have caused immediate death while Oliver was in Buchhorn’s care.
Looking back, Morrison admitted there were some things he would have done differently, such as filing a motion to try to get parts of the coroner’s testimony thrown out before the jury ever heard it.
He also said Wigren was at times “frustrating” because, like many expert witnesses, he was busy, hard to stay in contact with and had to be pressed to keep up with deadlines in the court case. While Wigren consulted with at least two other medical experts before writing his report — pediatric and neurology specialists — he only suggested consulting a biomechanical engineer after the trial was underway, which was too late to pursue one.
“Hindsight’s 20/20,” Morrison said.
Morrison, stepping outside of the direct questions being asked of him, also told prosecutors Mark Simpson and C.J. Rieg he thought their case was bad to start with and that he never would have charged it.
“I had real doubts — and I still do — about whether you guys should have charged her, and I’ve told you that before, Mr. Simpson,” Morrison said. “I think the case was way too circumstantial.”
Morrison added, still addressing Simpson, “Despite your best efforts, I don’t think there was any motive for Ms. Buchhorn to kill that baby.”
On Thursday, before Morrison, the judge also heard from an outside criminal defense attorney who reviewed Buchhorn’s case after the trial.
Alice Craig, a former public defender, is now an attorney for the Project for Innocence & Post-Conviction Remedies at the University of Kansas School of Law.
Craig listed numerous steps she thought Morrison and Dersch should have taken but didn’t, namely finding more ways to challenge the coroner’s ruling about Oliver’s cause of death — which she classified as the “electrical interruption theory,” as Buchhorn’s post-trial lawyers have.
“If they’ve used bad science … you have to challenge it so that it doesn’t go before a jury,” Craig said.
Craig said the trial lawyers should have hired other expert witnesses in addition to Wigren: a pediatric neurologist, a radiologist, a pediatrician and a biomechanical engineer to discuss force that would have been needed to cause the baby’s head injury.
Craig also said Morrison and Dersch should have filed a motion challenging the coroner’s qualifications to testify about the infant’s death, in hopes of getting Mitchell excluded from the trial before the jury ever heard from him.
Craig said that homicide cases involving infant head trauma require special attention on the part of lawyers and medical experts.
“They are hugely complicated cases,” she said.
photo by: Contributed photo
• July 25, 2018 — Jury deliberations still underway in Eudora day care murder trial
• July 24, 2018 — Jury deliberating case of day care worker charged with murdering baby
• July 18, 2018 — Eudora first responders detail attempts to revive baby
• July 17, 2018 — Parents testify about their 9-month-old son’s death at Eudora day care
• July 16, 2018 — Trial underway for woman accused of murdering baby at Eudora day care