photo by: Sara Shepherd

Carrody M. Buchhorn talks with her attorney William Skepnek during a break in court proceedings on Friday, Dec. 21, 2018, in Douglas County District Court.

A Douglas County District Court judge has dismissed the case of a woman who was accused of killing a baby six years ago at a Eudora day care center where she worked and has ordered the woman released from custody.

In its order Friday, the court cited the failure of the Douglas County District Attorney’s Office, in the murder case of Carrody Buchhorn, to find a forensic pathologist in a timely manner who could submit a report on the cause of death of Oliver “Ollie” Ortiz, a 9-month-old boy who was found unresponsive at the day care. The court said the DA’s office had been on notice for more than a year to find an expert witness after it indicated that it would not rely on the expert — the then-coroner, Dr. Erik Mitchell — whom the prosecution had used in the first trial.

Oliver Ortiz

Mitchell’s theory of the cause of death was “depolarization,” a controversial explanation that the prosecution has apparently abandoned. The first trial was prosecuted by the office of then-Douglas County DA Charles Branson.

Buchhorn, 48, was convicted of second-degree murder in 2018 for Oliver’s death in 2016. Her conviction was overturned last year, when the Kansas Court of Appeals ruled that she had received ineffective assistance of counsel at trial — specifically, that her trial attorneys had not done enough to oppose Mitchell’s determination that “depolarization” from head trauma caused Oliver’s death. A divided Kansas Supreme Court allowed the appeals court decision to stand.

Following the high court’s decision, District Attorney Suzanne Valdez chose to try Buchhorn a second time. That trial was scheduled to take place in March of next year. In the meantime, Buchhorn’s attorney, William Skepnek, has argued repeatedly — including by filing a petition for a writ of habeas corpus to the Kansas Court of Appeals — that his client should be released from house arrest and the case dismissed, pending the prosecution finding an expert witness who could produce a report on the cause of death and hence provide a basis for probable cause to detain Buchhorn.

In her order of dismissal Friday, Judge Sally Pokorny noted that the state was on notice from the time the Court of Appeals vacated Buchhorn’s conviction on Aug. 31, 2021, to start finding a new expert regarding the cause of death. The state was given a “hard and fast deadline” after a Nov. 1 status conference to disclose the new expert and the expert’s report by Friday, Dec. 16.

The DA’s office did provide a two-page report from an expert, Terra Frazier, but the defense indicated that the brief report failed to establish a cause of death “or a mechanism of death.” The DA’s office asked for a continuance of the expert deadline until the end of December, indicating that it had another expert who could produce a report if given more time to review the copious material in the case.

The court noted that such an extension would bump up against a preliminary hearing that has been scheduled for Jan. 17, 2023, giving the defense “an insufficient amount of time” to review the expert’s report.

The DA’s office has had “sufficient time to repair their case,” the judge said, and has failed to do so.

The court denied the request for a continuance and dismissed the case without prejudice, meaning that it could be brought again.

“If the State receives a report from an expert that it believes will allow them to move forward with this case, they have the ability to file a new Information,” Friday’s order read.

Late Friday afternoon, Deputy District Attorney Joshua Seiden filed notice that the state intended to appeal the dismissal.

Buchhorn was convicted in July 2018 and later was sentenced to more than 10 years in prison. That conviction was overturned three years later. Before and after her prison stint, she was in custody on house arrest or in the Douglas County Jail.

Editor’s note: This story has been updated to correct the name of the court issuing the order of dismissal.