photo by: Mike Yoder

Defendant Carrody Buchhorn is pictured Tuesday, July 24, 2018, in Douglas County District Court.

As a woman accused of killing a baby at a Eudora day care faces a new trial, she is renewing her motion to be freed from house arrest in the 6-year-old murder case — a move that prosecutors oppose as “entirely devoid of any legitimate legal basis.”

The woman, Carrody 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 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 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.

photo by: Contributed

Oliver Ortiz

Buchhorn’s attorneys, William Skepnek and Kevin Babbit, have argued that she should be immediately freed from house arrest pending a fresh determination of probable cause that she committed a crime. Their argument is that her detention is unlawful because it is based solely on evidence from her first preliminary hearing — the coroner’s testimony about “depolarization” — that will not be used by the prosecution in the second trial.

The purpose of a preliminary hearing is for the court to determine whether enough evidence exists — that is, probable cause — to order the defendant to stand trial. Buchhorn’s attorneys have argued that because the coroner’s testimony was the only evidence at the preliminary hearing regarding cause of death and because the prosecution will not use the coroner in a second trial that a fresh determination of probable cause is required and that Buchhorn should be freed pending such a determination.

In a hearing on Oct. 5, Judge Sally Pokorny denied Buchhorn’s initial motion for release, saying she could not grant it because Buchhorn is nevertheless on bond for a second-degree murder charge.

“I don’t believe that house arrest is a significant burden considering the alternative, sitting in jail waiting for trial,” Pokorny said at the time.

This week, Buchhorn’s attorneys filed a renewed motion, which the state has again opposed, saying Buchhorn’s motion lacks “any legitimate support in law” for a second determination of probable cause. The prosecution, in a response filed this week by Assistant District Attorney Brian Deiter, noted that the purpose of a preliminary hearing was “to determine whether it appears that a crime has been committed and probable cause to believe the defendant committed the crime.” The prosecution argues that even if the coroner’s testimony was stricken from the first preliminary hearing, sufficient evidence existed for the court to find probable cause that Buchhorn committed the crime and that a second determination is therefore not required.

“The Defendant cannot reasonably dispute the fact that (Oliver’s) cause of death was head trauma, nor that (Oliver) was under her immediate care and supervision at the time of his death,” the prosecution’s response states.

The prosecution also notes that Buchhorn’s conviction was not reversed on a finding that the coroner’s testimony was false but simply on a finding that her trial attorneys did not effectively represent her.

Pokorny is set to hear arguments regarding motions on Nov. 1. If a new preliminary hearing is ordered, it is set to occur in January. The second trial has been scheduled for March.