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.

Updated at 4:34 p.m. Friday

The Kansas Supreme Court has denied the state’s motion to reconsider the case of a Eudora woman whose murder conviction in Douglas County District Court was overturned by the Kansas Court of Appeals.

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

That conviction was overturned in August 2021 by the Kansas Court of Appeals, which said her trial counsel’s 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.

The Supreme Court heard the case with six justices, as the court’s seventh justice, K.J. Wall, recused himself because he had previously worked on Buchhorn’s case while in private practice. The six justices 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 the case with directions stood.

The Douglas County District Attorney’s Office asked the Supreme Court to reconsider its decision so that the case could be decided on its merits rather than on a tie.

The deputy solicitor general, Kristafer Ailslieger, who argued the case on behalf of Douglas County DA Suzanne Valdez, said that “reconsideration or rehearing is necessary because the Court’s split decision leaves the issues of the case — which the Court deemed significant enough to grant review — unresolved and violates the spirit, if not the letter, of the Kansas Constitution.”

The state further argued that another justice could easily be temporarily appointed to avoid split decisions.

The Supreme Court on Friday denied the motion to reconsider, reaffirming that when a justice is disqualified to participate and the remaining six justices are equally divided, the judgment of the lower court must stand.

The DA’s office told the Journal-World in August, after the court’s last ruling, that it intended to retry the case. On Friday, Cheryl Cadue, the DA’s spokesperson, reiterated that intention to the Journal-World, saying, “The state will continue to move forward in prosecuting this case.”

In overturning the case, the appellate court specifically said that Buchhorn’s trial attorneys had failed to properly investigate the coroner’s ruling about how Oliver had died and noted that the case hinged on that because there was no direct evidence connecting Buchhorn to his death.

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.

On Friday, Skepnek indicated that Buchhorn was seeking to modify her conditions of pretrial release. Her motion to do so states that the continued house arrest restrictions and electronic monitoring are unnecessary to assure her appearance at future court dates and to assure public safety. Buchhorn, who has been on house arrest for more than two years, is requesting that she be permitted unrestricted travel within a 50-mile radius of Lawrence.

“Ms. Buchhorn should now be permitted the freedom to purchase groceries, take a walk in the park, or have dinner in a restaurant,” the motion argues.