photo by: Dylan Lysen/Lawrence Journal-World

Carrody Buchhorn, of Eudora, appears in Douglas County District Court on Wednesday, Nov. 3, 2021. She was previously convicted of murder in 2018 for the death of a 9-month-old boy, but the Kansas Court of Appeals overturned the conviction in August 2021.

The Kansas Supreme Court has let stand an appellate court ruling reversing the conviction of a woman who was convicted in Douglas County District Court of murdering a baby, but the Douglas County District Attorney’s Office said Friday after the ruling that it would prosecute the case anew.

“We will proceed with the prosecution of this case,” Cheryl Cadue, a spokeswoman for the Douglas County District Attorney’s Office, told the Journal-World.

Carrody Buchhorn was convicted in 2018 of second-degree murder after 9-month-old Oliver “Ollie” Ortiz died unexpectedly on Sept. 29, 2016, at the home day care where she worked in Eudora.

Buchhorn was sentenced to more than 10 years in prison, but in August 2021 her conviction was overturned by the Kansas Court of Appeals, which said her trial counsel’s constitutionally deficient performance prejudiced her right to a fair trial. The Douglas County District Attorney’s Office then asked the Kansas Supreme Court to review the appeals court’s decision.

photo by: Contributed

Oliver Ortiz

On review to the Kansas Supreme Court, the six justices who heard the case were equally divided on how the issues on appeal should be decided. As a result, the Court of Appeals judgment reversing the Douglas County District Court and remanding with directions stands. The seventh justice on the Supreme Court, K.J. Wall, took no part in the case “because of his prior connection with the case while in private practice before joining the Supreme Court,” the court noted. Wall joined the Supreme Court in August 2020.

“When one of the justices is disqualified to participate in a decision of the issues raised in an appeal or petition for review, and the remaining six justices are equally divided as to the proper disposition of the issues on appeal or review, the judgment of the court from which the appeal or petition for review is made must stand,” the court’s decision, released Friday, said.

The Douglas County trial was overseen by Judge Sally Pokorny. A jury found Buchhorn, then 45, guilty on July 26, 2018. Three years later, the Kansas Court of Appeals overturned the conviction and sent the case back for a new trial. At issue was the testimony of the coroner, Dr. Erik Mitchell, who ruled that the baby’s death was instantaneous and caused by a blow to the head. As the Journal-World previously reported, Mitchell 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 appellate court specifically said Buchhorn’s trial attorneys failed to properly investigate the coroner’s ruling and noted that the case hinged on that because there was no direct evidence connecting Buchhorn to the boy’s death.

“Buchhorn’s counsel failed to make a comprehensive investigation of Dr. Mitchell’s medical opinions, thus failing to equip Buchhorn with what she needed for a proper defense,” the appeals court said in its opinion. “It was not a reasonable strategy that led counsel to decline to investigate Dr. Mitchell’s theory, but, rather, lack of thoroughness and preparation.”

Buchhorn was represented at trial by Paul Morrison — a former Kansas attorney general and longtime Johnson County district attorney — and Veronica Dersch. Lawrence attorney William J. Skepnek represented Buchhorn on appeal.

Oliver’s mother, Kaylen Ortiz, told the Journal-World on Friday that the family had no comment on the case at this time.