Judge denies new trial for Eudora day care worker convicted in infant’s murder

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.

Nearly 15 months after a jury found Eudora day care worker Carrody M. Buchhorn guilty of killing a 9-month-old infant in her care, a judge has denied her a new trial.

In a 17-page order late last week, Douglas County District Court Judge Sally Pokorny examined the issues that Buchhorn’s new counsel raised after the trial and ruled on each one at a time.

Buchhorn, now 45, was charged and convicted in connection with the Sept. 29, 2016 death of Oliver “Ollie” Ortiz. Oliver became unresponsive that afternoon at Sunshine Kids Group Daycare Home, 1307 Chestnut Lane in Eudora. He was never revived, and in April 2017, Buchhorn was charged with first-degree murder.

In an atypical order of events, Buchhorn fired her attorneys, Paul Morrison and Veronica Dersch, after her murder conviction July 26, 2018, but before her sentencing. Buchhorn hired new lawyers, William Skepnek and Kevin Babbit, who had argued that she should get a new trial because the coroner’s ruling was “junk science” and her first lawyers should have dealt with it differently.

In her order, Pokorny boiled Buchhorn’s new counsel’s arguments down to two main points: “the defense attorneys were ineffective for not keeping out Dr. (Erik) Mitchell’s testimony through a Daubert hearing and the defense hired the wrong expert.” The Daubert standard, based on the U.S. Supreme Court’s ruling in Daubert v. Merrell Dow Pharmaceuticals Inc., is a set of rules by which the court decides whether an expert witness’ testimony is admissible.

photo by: Sara Shepherd/Journal-World File Photo

In this file photo from Dec. 21, 2018, Douglas County District Court Judge Sally Pokorny listens to testimony regarding Carrody M. Buchhorn’s motion for a new trial. A jury previously convicted Buchhorn of murdering 9-month-old Oliver “Ollie” Ortiz at the Eudora home day care where she worked in 2017.

Pokorny wrote that Morrison — a former Kansas attorney general and an 18-year Johnson County district attorney who’s dealt with hundreds of murder cases in his career, including some of the state’s most notorious — was involved in the case at its earliest stages. He had urged the Douglas County district attorney’s office not to file charges, based on the circumstantial nature of the case.

Pokorny cited previous cases that rose to the Supreme Court of Kansas and the U.S. Supreme Court in her ruling that testimony by Mitchell, the former Douglas County coroner, would not have been excluded from Buchhorn’s trial even if her previous attorneys had motioned to do so.

She wrote that “the experts provided by the defendant disagreed with Dr. Mitchell’s ultimate conclusion and theory of death, but they could not (and arguably were not qualified) to speak to his methodology or experience. In fact, there were no allegations that Dr. Mitchell performed the autopsy incorrectly or that he lacked the qualification to determine a cause of death.”

A large factor in the state’s case had been Oliver’s time of death, based on Mitchell’s testimony — his injuries would have occurred when Buchhorn was the only one around him. The blows to the back of Oliver’s skull would have killed him within minutes, Mitchell said.

photo by: Sara Shepherd/Journal-World File Photo

In this file photo from March 14, 2019, former Douglas County coroner Erik Mitchell testifies during a post-trial hearing for Carrody M. Buchhorn in Douglas County District Court.

Buchhorn’s new counsel had also argued that Morrison and Dersch were ineffective in their hiring of forensic pathologist Dr. Carl Wigren to testify as a counterexpert. Wigren reviewed the local coroner’s work, including a video of the autopsy, photos of the body, written reports and slides of tissue samples, and his conclusion placed the time of the child’s injuries days or even a week prior to his death.

Morrison and Dersch had put in a great deal of time to find Wigren, and they “relied upon their expert and his knowledge. If the jury had relied upon the testimony of Dr. Wigren, the verdict would have been not guilty,” Pokorny wrote.

“… Even with the benefit of hindsight, it is speculative that a different defense expert would have persuaded the jury to reach a different conclusion,” she wrote.

Pokorny mentions a few other concerns, including statements by a detective in a video of an interview with Buchhorn, Morrison’s cross-examination of Mitchell and the lack of a clear motive for Ollie’s murder.

“True, there was no obvious motive, but that doesn’t discredit the other circumstantial evidence available in this case,” she wrote.

“… Defendant is not entitled to a new trial because counsel were not ineffective,” Pokorny concluded. “Dr. Mitchell’s testimony meets the Daubert standard, and none of the other errors warrant a new trial.”

“We had absolute confidence in the case that was presented,” District Attorney Charles Branson said Thursday evening in an emailed statement from his office. “We are ready to move forward with sentencing so we can bring some closure to the family on this tragic matter.”

Buchhorn’s sentencing is scheduled for Nov. 18, online court records indicate.

Skepnek did not immediately respond to a Journal-World email request for comment Thursday afternoon.

Contact Mackenzie Clark

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