Defense lawyers stand by trial performance in Eudora day care murder case, say client was wrongly convicted

photo by: Sara Shepherd

Carrody M. Buchhorn appears in Douglas County District Court during a hearing on Tuesday, Feb. 19, 2019. She is seated with her attorneys Kevin Babbit, left, and William Skepnek.

The Eudora day care murder case has evolved from the usual two-sided battle into a triangle of sparring attorneys.

Prosecutors who fought Carrody M. Buchhorn’s lawyers at trial — and won a murder conviction — are now back in the same courtroom defending those lawyers’ trial performance. Across the aisle, Buchhorn and her new attorneys have turned against her trial lawyers, claiming they were so negligent that Buchhorn should get a new trial.

The dynamic made for lively exchanges Tuesday in Douglas County District Court.

“Our trial strategy was good,” said Veronica Dersch, who represented Buchhorn at trial with former Kansas Attorney General and Johnson County District Attorney Paul Morrison.

Dersch said that while the coroner’s testimony — now being attacked by Buchhorn’s new attorneys — was a major part of their strategy, there was more to the case than that. She and Morrison both said they believe Buchhorn was wrongly convicted.

“She didn’t do it, and they (the state) didn’t have any evidence that she did,” Dersch said.

Tuesday was the third full day of testimony since December devoted to Buchhorn’s request for a new trial.

Though Buchhorn, 44, of Eudora was convicted of murder last summer, her sentencing won’t proceed until the judge rules on whether she’ll get a new trial. Sentencing is scheduled for later this week, on Thursday, but attorneys said Tuesday they still have at least two more witnesses to put on the stand first.

Buchhorn remains jailed without bond in the 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.

An autopsy revealed an inches-long fracture at the base of Oliver’s skull plus other internal injuries. Former county coroner Erik Mitchell ruled Oliver’s 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 child would die within minutes.

The person who was with Oliver when that happened was Buchhorn, prosecutors successfully contended at trial.

Dersch testified Tuesday that she and Morrison worked exhaustively on the case, talked about it daily and strategized based on the medical opinion of the outside forensic pathologist they hired to refute Mitchell, as well as other evidence.

Dersch said they were retained by Buchhorn shortly after Oliver’s death, months before she was criminally charged.

“When we met her, we believed her,” Dersch said. “We wanted to know what happened to the baby.”

Seattle-based forensic pathologist Carl Wigren reviewed the coroner’s findings and contended that Oliver’s skull fracture was an old injury — at least three or perhaps even seven days old — because microscopic examination revealed signs of healing.

Wigren reiterated that opinion Tuesday, via video conference from out of state.

Wigren said he told Buchhorn’s trial lawyers “unequivocally” that Oliver’s skull fracture was an old injury.

Dersch and Morrison both said they did ask Wigren about what new lawyers have called Mitchell’s “electrical interruption theory,” but Wigren claimed they did not.

He acknowledged there were many conversations he did not remember but said that if attorneys had told him such an issue was pivotal, he would have looked into it further.

Prosecutors C.J. Rieg and Mark Simpson emphasized through their questions that even without specific discussions about the electrical brain activity interruption that Mitchell pointed to, Buchhorn’s trial lawyers effectively combated the coroner’s theory by holding up Wigren’s findings that the injury was old.

On Tuesday, Judge Sally Pokorny fielded numerous objections by prosecutors complaining about defense lawyers’ questions. The judge also broke up what she called “arguing” and “yelling” when Buchhorn’s new lawyer William Skepnek questioned Dersch.

In one such exchange, Skepnek accused Dersch of “quibbling” with him over medical terminology. Dersch said she wasn’t “quibbling.”

The judge said the “arguing” needed to stop and Skepnek abruptly sat down, saying, “Well, your honor, I think she’s a hostile witness, and I’m done with her anyway.”

Morrison also was back on the witness stand Tuesday, to finish testimony he started at the last hearing.

In response to prosecutors’ complaints that Skepnek was asking Morrison leading questions, Skepnek also called him “hostile.”

Pokorny said Dersch and Morrison may not have been “friendly,” but that they weren’t hostile. Pokorny emphasized that despite now being challenged, the pair was still on Buchhorn’s side.

“Just because a witness does not answer a question in the way you want them to does not mean they’re hostile,” she told Skepnek. “Mr. Morrison and Ms. Dersch are still in Ms. Buchhorn’s camp … they believe she was wrongly convicted.”

Contact Journal-World public safety reporter Sara Shepherd


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