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.

Story updated at 8:41 p.m. Wednesday, Jan. 4, 2023:

Citing a lack of evidence, the Douglas County District Attorney’s office has decided to “cease prosecution” of a woman who was accused of killing a baby in 2016 at a Eudora day care where she worked.

District Attorney Suzanne Valdez announced the decision to stop pursuing the case against Carrody Buchhorn in a news release Wednesday evening. Valdez cited a report from a forensic pathologist her office had retained in the case, which she said concluded that the baby, Oliver “Ollie” Ortiz, “died from natural disease and pathophysiologic processes unrelated to child abuse.”

“Upon receipt and review of the forensic pathologist’s report dated January 3, 2023 and having conferred with other attorneys in this office, I have concluded that at this time, we do not have sufficient evidence to proceed with the prosecution of Ms. Buchhorn,” Valdez said in the release.

Buchhorn, 48, was arrested seven months after Ollie’s death in 2016 and has spent the years since in jail, prison or on house arrest. She was convicted of second-degree murder in 2018, but her conviction was overturned 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 then-Douglas County 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.

The DA’s office had previously indicated that it would not rely on testimony from Mitchell, whom the prosecution had used in the first trial. Buchhorn was recently released from house arrest when Judge Sally Pokorny dismissed her case due to the DA’s failure to find a new expert witness to testify about the cause of death in a timely fashion.

Buchhorn did not know of Valdez’s decision until the Journal-World called her on Wednesday evening. Her initial reaction was “What? Oh my gosh.” Buchhorn, who has always maintained her innocence, said she had been waiting to be arrested again after the holidays, and she said “I’m going to cry. I feel validated now. It’s such a relief.”

Buchhorn said she felt terrible for Ollie’s family because they could have gotten answers long before now. In the course of the conversation, she said she still felt “in shock.”

In an interview with the Journal-World shortly before Christmas, Buchhorn discussed her harrowing experience throughout the yearslong case, which she estimated cost her family around half a million dollars in legal fees, including the loss of their Eudora home.

“I think I will know more how I’ll feel tomorrow …” she said Wednesday. “I felt like it was never going to end.”

Buchhorn’s attorney, William Skepnek, told the Journal-World Wednesday that he found the DA’s conduct, as well as her evening press release, “outrageous” and that the pursuit of Buchhorn, beginning with former DA Charles Branson, resulted in a tragedy for two families: Buchhorn’s as she was torn from her husband and two sons and Ollie’s as they were led to believe that someone intentionally harmed their baby.

“If they had done their job, they would have known,” he said of Valdez’s office — and the fact that their latest witness, Dr. Jane W. Turner, concluded that Ollie had pre-existing conditions and experienced other factors that contributed to his death.

In Turner’s full report, which Skepnek provided to the Journal-World, Turner concluded that based on the autopsy report Ollie had a congenital heart defect that “predisposed him to pathophysiologic (processes) that began at least 12-24 hours before his death.” She also indicated that Ollie had hyperglycemia, hypothermia and bacterial and viral infections at the time of his death. The skull fracture that Mitchell had relied so heavily on actually predated his illness, she wrote — which was also the finding of the defense’s expert witness during the trial.

“How many innocent people are in prison because of stuff like this?” Skepnek asked. “Think about it. If Carrody hadn’t hung in there” and fought through multiple appeals, she’d be sitting in prison right now.

Skepnek said that Valdez’s insistence that her office operated under high standards didn’t hold water with him.

“There was never any evidence to support the prosecution’s case,” he said. “I believe we need a new district attorney for Douglas County, and I will try to help find one.”

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