photo by: Sara Shepherd/Journal-World File Photo

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

Carrody M. Buchhorn is facing nearly 10 years in prison for the murder of an infant in her care.

She’s asking the judge to grant probation.

Jurors found Buchhorn, now 45, guilty of second-degree murder in the Sept. 29, 2016, death of 9-month-old Oliver “Ollie” L. Ortiz. She has been in the custody of the Douglas County Jail, and her sentencing has been pending since the verdict came on July 26, 2018.

photo by: Contributed

Oliver Ortiz

Oliver was in Buchhorn’s care at a Eudora home day care when he became unresponsive and died. The coroner ruled the death a homicide caused by blunt force trauma to the head.

Shortly after her trial, Buchhorn fired her retained defense team of Paul Morrison, a former Kansas attorney general, and Veronica Dersch. She then hired Kevin Babbit and William Skepnek, who requested that the judge grant a new trial based on several issues they raised.

The jury trial and deliberations spanned about nine days. In multiple daylong hearings after the verdict, Buchhorn’s new attorneys questioned medical experts who had testified in trial and some who hadn’t, as well as Buchhorn’s first defense team, regarding their handling of the case.

Both defense teams have argued that Buchhorn was wrongfully convicted. They have questioned the coroner’s qualifications and his theory of how Oliver died, argued that the prosecution’s evidence was circumstantial and contended that Buchhorn had no motive for the crime.

Before all the post-trial hearings, Buchhorn had been set for sentencing Oct. 18, 2018. In a ruling filed exactly one year later, Judge Sally Pokorny denied Buchhorn’s motion for judgment of acquittal or a new trial.

Babbit and Skepnek then filed on Buchhorn’s behalf a motion for departure from Kansas sentencing guidelines. Prosecutors and defense attorneys can request departures from the sentences prescribed by state law, and the judge can choose to impose them if she or he finds “substantial and compelling” reasons to do so.

Departures can be dispositional, meaning a sentence would be served on probation rather than in prison or vice versa, or durational, regarding the sentence length.

Buchhorn, who faces a presumed sentence of nine years and nine months in prison, is seeking both. Her attorneys argue in the motion that four main factors support a dispositional or durational departure.

Under state guidelines, Buchhorn would face the most lenient sentence allowable for the high-severity felony. On the other end of the spectrum, those with the most serious criminal histories would face nearly 39 years in prison.

Still, Buchhorn’s lawyers write, her “complete lack of any police contact” indicates that she won’t be a danger to society.

After her arrest, her lawyers contend that Buchhorn complied with all conditions of pretrial release when she was let out of the Douglas County Jail on bond. Since her bond was revoked and she was taken into custody, they write that she has been an “exceptional” inmate.

“Not only has Ms. Buchhorn followed all the rules at the jail, been able to qualify for the inmate worker program, and been designated a ‘trustee,'” the motion says, “Ms. Buchhorn has, at the request of Douglas County Jail staff, assisted in the management of the mental health of other inmates in the women’s pod.”

They write that she has a supportive family in the Lawrence area, and many family members and friends would be submitting letters to the court prior to the sentencing hearing.

Finally, they argue that Buchhorn is not a threat to society.

“Prior to these events, Ms. Buchhorn was a successful, law abiding mother, daughter, wife and friend,” the motion says. “She has been a full-time mother and childcare worker for over twenty years and has never during that period shown any anger or violence towards others.”

Given the option, the jury convicted Buchhorn of murder in the second degree “unintentionally under circumstances recklessly manifesting extreme indifference to the value of human life,” rather than in the first degree.

“This difference is significant,” the motion says. “It is reasonable to believe that one who acts with reckless intent is significantly less a threat to society than one who acts with premeditation.”

In conclusion, the attorneys ask the judge to consider granting Buchhorn 48 months of probation with the requirement that she participate in mental health counseling, that she not be employed in any position that works with young children and that she follow all standard conditions of probation.

“Such a sentence would impose sufficient oversight to make sure Ms. Buchhorn is on the right path and would recognize that prison space should be reserved for violent offenders who present a threat,” the motion says.

And, should the court decide that probation is “a bridge too far under the circumstances of this case,” the motion says a sentence of 36 months in prison “would still recognize the severity of the offense charged and the harm that occurred as well as recognize the substantial and compelling reasons to depart below the guidelines sentence.”

The durational departure would shorten Buchhorn’s presumed prison sentence by more than two-thirds. She has already been in custody more than 15 months.

Dorothy Kliem, trial assistant for the Douglas County district attorney’s office, said via email Friday that the state intends to argue against the motion at the sentencing hearing.

“The State does not believe there are factual grounds to support a departure in this case,” she wrote.

Reached by phone Friday, Skepnek said the defense would have to make a decision based on how the judge rules, but there will be an appeal in the case, and he will “definitely” represent Buchhorn in the appeal as well.

“As is obvious from the motion for a new trial, people are making a big mistake and a very innocent woman is going to go to prison,” he said.

He said the jury still took days to deliberate, and despite the coroner’s theory that Buchhorn put the child face down on the floor and stomped on his head, the jurors did not find Buchhorn guilty of first-degree murder.

“I think there’s a great deal of confusion about what happened, and that’s because there’s no way Carrody Buchhorn did what they say she did,” Skepnek said.

Buchhorn’s sentencing is scheduled for Monday morning, more than three years after Oliver’s death.