Douglas County DA’s office won’t say if it’s reviewing cases involving a former coroner whose testimony is again in doubt

photo by: Sara Shepherd/Journal-World File Photo

In this file photo from Jan. 31, 2019, Dr. Erik K. Mitchell, former Douglas County coroner, testifies during a murder trial in Douglas County District Court.

With the testimony of a former Douglas County coroner again in doubt, the district attorney’s office on Friday would not say whether it is reviewing cases where his testimony was provided.

In response to the Journal-World’s question about whether the DA’s office was reviewing past cases that used testimony from Dr. Erik Mitchell, who was the coroner from 1996 to 2018, a spokeswoman for the office declined to say whether it was reviewing past cases that involved him or comment on whether the office has any concerns about his credibility.

“Without speaking to any specific matter or matters, this office conducts post-conviction review on a case-by-case basis and with a team-based approach,” spokeswoman Jill Jess said in an email to the Journal-World.

Mitchell’s testimonies had previously been called into question by a local attorney asking him to be barred from two Lawrence murder trials, the Journal-World previously reported. But a recent Kansas Court of Appeals ruling has raised further questions about his credibility in a criminal trial.

In August, the appeals court ruled that Carrody Buchhorn received ineffective counsel during her 2018 trial, in which she was convicted of murder in the killing of 9-month-old Oliver Ortiz while the baby was in her care at a Eudora home day care in 2016. The appeals court ruling did not draw any direct conclusions about Mitchell’s findings in the case, but rather said Buchhorn’s attorneys failed to properly question the coroner’s ruling on how the boy died, among other issues, which denied her the right to a fair trial.

Mitchell ruled the boy’s death was instantaneous and caused by a blow to the head. The coroner testified that Oliver had a fractured skull caused by an incident forceful enough — not a drop, fall or the actions of another child — to render him unresponsive right away and, without intervention, dead within minutes.

The court specifically said Buchhorn’s attorneys failed to properly investigate the coroner’s ruling and challenge it during the trial, which could have been done through testimony from other doctors who testified in the case, including Dr. Carl Wigren who said in court he believed the boy’s skull fracture showed signs of healing from an injury that was a few days to a week old.

The court also noted the case hinged on Mitchell’s testimony because there was no direct evidence connecting Buchhorn to the boy’s death.

“If counsel had directly challenged Dr. Mitchell’s theory … there is a reasonable probability the jury would have found Buchhorn not guilty,” the court wrote in its ruling. “The State’s entire theory of guilt relied on Dr. Mitchell’s opinion that the death was immediate, yet trial counsel did not directly challenge that theory.”

The court ordered the case to be sent back to Douglas County District Court, but the DA’s office in September appealed the ruling to the Kansas Supreme Court. The Supreme Court has not yet announced whether it will take up the case.

Meanwhile, with questions surrounding the accuracy of Mitchell’s testimony, other cases that used Mitchell’s testimony during his 22-year career could also be in doubt.

In some counties, DA offices have installed units that specifically investigate those kinds of issues in previous convictions, checking to make sure they were not wrongful. Creating such a unit in Douglas County was a topic of conversation during the campaign for the DA position last year. The election resulted in Suzanne Valdez unseating former DA Charles Branson, who served in the position for 16 years.

Valdez said she supported the idea of a post-conviction review unit and noted that a grant could be pursued to fund it, the Journal-World reported. She also said it could be useful for Douglas County, because Branson had been in the position for so long without a challenger for his seat.

So far during her tenure, which began in January, Valdez has not created such a unit. But that doesn’t mean the office can’t or won’t investigate former convictions. Jess said Valdez supports state law that allows post-conviction review of cases and outside organizations that specialize in those reviews, such as an innocence and post-conviction project at the KU School of Law. And internally, the office reviews past convictions on a case-by-case basis, she said.

“The District Attorney recognizes conviction integrity as a cornerstone of the American legal system,” Jess said. “If we identify a need for a standalone Conviction Integrity Unit, then we will certainly revisit that issue. At this time, we believe the essential functions of a Conviction Integrity Unit are being adequately addressed,” she added.

But a local attorney involved in the Buchhorn appeal is raising concerns about the DA’s office’s commitment to reviewing Mitchell’s testimony in the case. William Skepnek, who is representing Buchhorn in her appeal, said in a letter to the DA’s office and the Kansas Judicial Branch’s Office of the Disciplinary Administrator that he believed Mitchell’s testimony in the case was false and the district attorney’s petition for review to the Supreme Court would fail.

Skepnek told the Journal-World on Friday that’s he convinced that Mitchell’s testimony demands further review by prosecutors.

“My objection is that it is so fundamentally wrong,” Skepnek said.

Skepnek also has other concerns in the case, alleging Valdez and her office have been unethical in their handling of the petition for review, which he outlined in the letter to the Office of the Disciplinary Administrator. In that letter, he said Valdez and an assistant district attorney wrongly accused him of crafting an affidavit from a witness in the Buchhorn appeal case in an untruthful manner and threatening the witness to get them to sign it.

Jess said the DA’s office is aware of Skepnek’s letters, but declined to comment on their assertions.

“The District Attorney’s Office follows proper legal channels in discussing any such issues, which do not include airing our differences in the media,” she said.

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