photo by: Sara Shepherd

Carrody M. Buchhorn appears next to attorney William Skepnek during a post-trial hearing Thursday, March 14, 2019, in Douglas County District Court.

Attorneys for a woman accused of killing a baby at a Eudora day care more than six years ago are asking the Kansas Court of Appeals to order the release of their client and to dismiss the murder case against her.

Attorneys for Carrody Buchhorn have filed a petition for a writ of habeas corpus with the appeals court after Douglas County Judge Sally Pokorny denied their two earlier motions to release Buchhorn from house arrest. The attorneys are now essentially asking that Pokorny be ordered to free Buchhorn.

Earlier this month, Pokorny ordered a new preliminary hearing for Buchhorn so that a fresh determination of probable cause could be considered; however, Pokorny declined to release Buchhorn from house arrest, stating that Buchhorn is in the same position she was prior to her first preliminary hearing, during which time she was under house arrest.

Buchhorn, 47, was convicted in 2018 of killing 9-month-old Oliver “Ollie” L. Ortiz in 2016 at the day care where she worked. Her conviction and 10-year sentence for second-degree murder were 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 Coroner Erik Mitchell’s determination that “depolarization” from head trauma caused Oliver’s death. A divided Kansas Supreme Court allowed the appeals court decision to stand, and Buchhorn now finds herself facing a new trial in Douglas County District Court.

At a hearing on Nov. 1, Pokorny agreed with William Skepnek, Buchhorn’s defense attorney, that absent Mitchell’s testimony about how Oliver died — testimony the prosecution does not intend to use in the second trial — there was no basis to have bound Buchhorn over for the first 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. Pokorny nevertheless ordered that Buchhorn remain under house arrest.

Pokorny scheduled the new preliminary hearing for Jan. 17, 2023. In the meantime, the prosecution was expected to have a new expert witness report on Oliver’s cause of death within coming weeks.

Buchhorn’s attorneys argue in their petition for habeas corpus that her continued detention is unlawful because probable cause no longer exists based on the state having “abandoned the source of probable cause: Dr. Mitchell and his cause of death opinion” (depolarization).

“The State cannot legally continue to restrain Mrs. Buchhorn on the chance that the State conjures up probable cause” at the new preliminary hearing in January, the attorneys wrote in the petition, asking that the state’s case be dismissed.