photo by: Douglas County Sheriff's Office

Carrody Buchhorn

A woman accused of killing a baby at the Eudora day care where she worked will get a new preliminary hearing but will not be released from house arrest pending that fresh determination of probable cause, a Douglas County judge decided Tuesday.

The woman, Carrody Buchhorn, 47, is accused of killing 9-month-old Ollie Ortiz. She was convicted in 2018 of second-degree murder in the boy’s 2016 death and was sentenced to 10 years in prison. That conviction was overturned on appeal due to a finding that she had received ineffective assistance of counsel, and her case was sent back to Douglas County District Court for a new trial.

Buchhorn’s attorneys have argued that a new preliminary hearing is required to establish probable cause since the first determination of probable cause relied on the testimony of Coroner Erik Mitchell, who posited “depolarization” as the cause of Oliver’s death and whose testimony will not be used by the prosecution in the second trial.

The prosecution, represented by Deputy District Attorney Joshua Seiden, countered that just because Buchhorn’s conviction was thrown out for ineffective assistance of counsel — the appeals court believed her attorneys did not do enough to counter the controversial “depolarization” theory — she was not entitled “to start over from square one” with a new preliminary hearing.

Judge Sally Pokorny on Tuesday disagreed. She said that under the special circumstances of this case Buchhorn is entitled to a new preliminary hearing, at which Pokorny will determine whether it appears that a crime has been committed and whether there’s probable cause to believe Buchhorn committed that crime.

She agreed with William Skepnek, Buchhorn’s defense attorney, that absent Mitchell’s testimony about how Oliver died, there was no basis to have bound Buchhorn over for trial. Without evidence regarding the cause of death, Pokorny explained by analogy, there are only the discrete facts that someone died and someone else was the last person in the deceased’s presence, which by itself is insufficient to establish probable cause.

However, she declined to modify the terms of house arrest before the new preliminary hearing, stating that Buchhorn is in the same position she was prior to her first preliminary hearing, during which time she was under house arrest.

Pokorny scheduled the new preliminary hearing for Jan. 17, 2023. In the meantime, the prosecution is expected to have a new expert witness report on Oliver’s cause of death by mid-December.