photo by: Sara Shepherd

Former Douglas County Coroner Erik Mitchell testifies during a post-trial hearing for convicted murderer Carrody M. Buchhorn on Thursday, March 14, 2019, in Douglas County District Court.

Erik Mitchell acknowledged that he used a couple of specific words during a murder trial that, in hindsight, he wouldn’t have chosen. He agreed that the infant victim’s cause of death was not a common medical phenomenon.

But as for his theory about what killed 9-month-old Oliver Ortiz, the former Douglas County coroner has not changed his mind — despite exhaustive post-trial attacks on the theory by the woman convicted of murdering the child.

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

Mitchell said this week in Douglas County District Court that he still believes a forceful blow to the head killed Oliver by, essentially, stunning his brainstem and halting signals for life-sustaining processes such as breathing long enough for him to die. The blow left an inches-long fracture at the base of Oliver’s skull surrounded by heavy bleeding under the scalp, but no visible physical injury or swelling to the brain, as would typically be seen in a lethal head injury.

After hearing Mitchell’s testimony at trial in July 2018, a jury convicted Eudora resident Carrody M. Buchhorn, 44, of second-degree murder for killing Oliver unintentionally but recklessly, with extreme indifference to human life.

Buchhorn, however, still hasn’t been sentenced.

She fired her trial attorneys and hired new ones, who are demanding she get a new trial. They say Buchhorn’s first lawyers were ineffective, mainly because Mitchell’s theory of death is “junk science” and the lawyers should have combatted it differently than they did.

Thursday was the fourth full day of related post-trial hearings, and there will be more. Buchhorn’s next hearing isn’t yet scheduled, and neither is her sentencing date.

On Thursday, prosecutor C.J. Rieg asked Mitchell whether he would admit it if his opinion turned out to be wrong.

Mitchell said yes, because the consequences of not doing so could mean “injustices” in a criminal case.

“Those give me nightmares. I worry about that,” he said.

Rieg asked whether Mitchell could have said he didn’t know how Oliver died.

Mitchell said that’s always an option but that in this case he did have a conclusion about how Oliver died.

“I’m under an obligation as a forensic technician to take the information that is available and see if there is an answer that comes out,” he said. “If there is, then I’m obligated to give that answer.”

•••

Oliver was in Buchhorn’s care at a Eudora home day care when he became unresponsive and died the afternoon of Sept. 29, 2016.

Buchhorn testified that Oliver seemed normal that day until, after she picked him up from his crib after naptime, she realized he was unresponsive. CPR — at the daycare, in the ambulance and at the hospital — failed to revive Oliver. His skull fracture and other internal injuries were not discovered until the autopsy.

Mitchell testified that Oliver’s death must have occurred within minutes of his head injury. Based largely on that, prosecutors charged Buchhorn because she was the only person with Oliver in that time frame.

photo by: Sara Shepherd

Carrody M. Buchhorn appears next to attorney William Skepnek during a post-trial hearing Thursday, March 14, 2019, in Douglas County District Court.

Buchhorn hired two nationally known pediatric neurology specialists to review Oliver’s case and contradict Mitchell’s opinion. Both said they knew of no such cases or medical literature supporting Mitchell’s theory; they said any fatal brain injury would leave a visible defect or swelling to the brain.

Mitchell was in the courtroom when those doctors testified in December.

When asked Thursday, Mitchell agreed that both had impeccable credentials and were experts in their field.

But their field is not forensic pathology.

“They are not involved with looking at a dead body and trying to work your way backward,” Mitchell said.

Mitchell emphasized that his practice takes into account not just a physical inspection of a body but also information about surrounding circumstances.

“Forensics is not an isolated process … in isolation, there are too many possibilities. You have to place those findings in context,” he said.

It’s true that some infants die of sudden infant death syndrome, or SIDS, with no explanation for their deaths, Mitchell said. He said that’s not what happened to Oliver.

“We’ve got a severely injured child. The chance that the child has died of those injuries is extremely high,” Mitchell said.

•••

Mitchell estimated he has performed more than 12,000 autopsies in his career, including many child death cases.

When asked if Oliver’s was an “exceptional” case, medically, Mitchell said yes.

Buchhorn’s attorney William Skepnek pressed Mitchell to read aloud from textbooks and medical articles he thought supported his theory of Oliver’s death, which Mitchell did.

Mitchell acknowledged that he did not know of many or any peer-reviewed medical writings on deaths like Oliver’s. However, he said he had seen at least two such “spinal shock” deaths in his own career.

In both cases, it was clear from surrounding circumstances that the deaths stemmed from brain or spinal injuries, but there was no visible damage to those organs in the autopsies, Mitchell said.

In one, a man in his car was shot through the neck but the bullet did not hit his brain or spinal cord. Mitchell said application of force, or a “concussive injury,” to the area near those vital organs caused death.

In another case, a woman’s angry boyfriend lifted her by her head, shook her, and heard or felt a “click.” He then put her in bed, and she never moved again. Mitchell said again, save some internal bleeding around the area, there was no visible damage to the brain or spinal cord.

In another example, Mitchell said epileptic seizures can cause deadly brain injury but do not leave visible brain or spinal cord defects or swelling.

Based on the other doctors’ after-the-fact critiques of his preliminary hearing and trial testimony in Oliver’s case, Mitchell said he would have avoided using two scientific words the defense has attacked in post-trial hearings: statistics and depolarization.

Despite his “poor choice of words,” Mitchell said he was not trying to be misleading.

Mitchell said he was trying to explain concepts in general terms, including how a blow can stun the electrical function of nerves in the brain.

•••

Just like Buchhorn’s previous post-trial hearings, Thursday’s was punctuated by at times heated objections between attorneys. Judge Sally Pokorny repeatedly told Skepnek he was being improperly argumentative with witnesses.

At Buchhorn’s last hearings, perhaps even more confrontational, her trial attorneys — former Kansas Attorney General Paul Morrison and Veronica Dersch — took the witness stand to defend their handling of the case.

Thursday’s hearing also included testimony by a Kansas City, Mo.,-based forensic psychologist who evaluated Buchhorn after her conviction. Hired by the defense, Marilyn Hutchinson said Buchhorn was “traumatized by finding the dead baby” but did not fit the profile of a criminal or person likely to commit violence.

Questioned by prosecutor Mark Simpson, Hutchinson acknowledged that her report was based mainly on what Buchhorn herself said and information the defense gave her.

Simpson asked Hutchinson whether she was given text messages — which were not shared during the trial — in which Buchhorn called her boss at the daycare a vulgar name, called Oliver an expletive when he was being difficult and said, “going to kill a baby.”

Hutchinson said no, but that those texts would not change her opinion of Buchhorn.

Pokorny said that she did not intend to rely on Hutchinson’s testimony when considering Buchhorn’s motion for a new trial. She said it could be considered if and when Buchhorn is sentenced.