photo by: Contributed

Carrody Buchhorn

Subpoenas for the Douglas County district attorney and her deputy were modified and quashed, respectively, on Monday after their attorneys claimed that neither had enough knowledge of the prosecution of a woman whose murder conviction was overturned in a baby’s death at a Eudora day care. The woman is now suing the state for wrongful conviction and imprisonment, and the DA has 30 days to name the person who will testify on behalf of the office.

The woman, Carrody Buchhorn, is seeking, pursuant to state law, nearly $400,000 from the state and a formal exoneration, as the Journal-World has reported.

Buchhorn, 49, of Lawrence, was convicted in 2018 of murdering 9-month-old Oliver Ortiz in 2016 at the Eudora day care where she worked. Her conviction, obtained by former DA Charles Branson, was overturned on appeal, and current Douglas County DA Suzanne Valdez announced plans to retry the case in August of 2021. She pursued prosecution throughout 2022. Deputy DA Joshua Seiden argued at multiple hearings against any bond modifications for Buchhorn, who was on house arrest, that would allow Buchhorn to move about the county freely, as the Journal-World reported.

The DA’s office found a new forensic pathology expert last winter who determined that Oliver had not died from child abuse. The DA’s office — nearly seven years after Oliver’s death — then announced that it would “cease prosecution” due to a lack of evidence.

On Monday, Judge James McCabria addressed subpoenas issued to Seiden and Valdez from Buchhorn’s attorney, Bill Skepnek, that requested that Seiden and Valdez give depositions and explain what facts prosecutors relied on to pursue prosecution and the eventual dismissal of the case.

photo by: Chris Conde/Journal-World

Douglas County Deputy District Attorney Joshua Seiden is pictured in Douglas County District Court on July 24, 2023.

“Seiden was preparing to try the case. If those notes are in there, he would know,” Skepnek said, referring to the 50,000-page case file that the DA’s Office provided to Skepnek and Assistant Attorney General Shon Qualseth, who is representing the state in the lawsuit.

Skepnek said that he sent subpoenas to Seiden and Valdez that described the topics he would be asking about during the depositions and requested that Seiden and Valdez bring documents supporting their answers.

Seiden’s attorney, Holly Dyer, of Wichita, argued that Seiden’s subpoena should be quashed and said that Skepnek’s subpoenas were served incorrectly and if enforced would be an undue burden on Seiden. She said the subpoena was addressed to Seiden and sent to the DA’s Office but made no mention of the office itself.

She said that under Kansas civil procedure laws the subpoena should be addressed to the office as a whole and that the office can then name an officer or representative who has the best knowledge of the case to testify during a deposition.

Dyer said that if the subpoena isn’t quashed, then Seiden should not be expected to prepare for the deposition or be required to bring any documents. She said that civil procedure laws don’t require witnesses to “study up” before a deposition.

“I don’t know if my client should have to go through 50,000 documents,” Dyer said.

Dyer added that Seiden had only begun working on the case during the appeal and had nothing to do with the original prosecution.

“I don’t think it is fair to say (Seiden) is the keeper of this knowledge,” Dyer said.

She said if Seiden is eventually deposed, she reserved the right to object to any questions that relate to Seiden’s mental impressions about the case or anything related to whether the case might be refiled.

Skepnek said that he isn’t expecting Seiden to review all of the documents in the file, just the documents related to the facts that the office relied on to believe that Buchhorn had murdered the baby. He said the state named Seiden and Valdez in the lawsuit as witnesses who would have knowledge of the case. Skepnek said the way the subpoenas were worded was an effort to save the court time to avoid having the witness dig through the case file during the deposition for each question.

photo by: Chris Conde/Journal-World

Douglas County District Attorney Suzanne Valdez is pictured in District Court on July 24, 2023.

Valdez’s attorney, Greg Goheen, of Kansas City, asked McCabria to modify the subpoena issued to Valdez to comply with civil procedure laws and to treat it as though it had been served to the DA’s Office.

McCabria said that modifying the subpoena made sense though it was sent to Valdez at the DA’s Office and while it did not mention her title he could not see it being perceived in any other way than having been directed to the DA’s Office. He said that Skepnek would not be required to reissue the subpoenas but that the DA’s Office should treat the subpoena issued to Valdez accordingly.

Skepnek said he understood the argument that the subpoenas should be issued directly to the DA’s Office under civil procedure laws and agreed to the modification.

Goheen added that it would not make sense to depose Valdez herself because she has “limited knowledge on this case.”

He reasserted Dyer’s argument that the DA’s Office can designate a representative.

McCabria asked the attorneys that since the case is so far along in the discovery process if the court should expect someone other than Seiden to be designated as the representative.

“No,” Goheen said.

“We don’t know who will be named,” Dyer said.

McCabria then asked who was left in the DA’s Office that would have any knowledge of the case since most of the attorneys who worked for the previous DA had left the office.

Dyer said that civil procedure would allow the office to name an employee or other outside representative who has knowledge of the case.

McCabria said that the prosecutors involved in the case who worked under former DA Branson were C.J. Rieg and Mark Simpson. He said Simpson has since become a Douglas County District Court judge.

McCabria added that he himself was also a prosecutor in the office for a portion of Buchhorn’s case, though he did not work on the case, and asked if anyone wanted him to consider recusing himself from the case. Skepnek and Qualseth both said they had no reason to believe McCabria could not rule fairly in the case.

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.

Skepnek said that he has been in contact with Simpson’s attorney and that he does want to depose Simpson but was waiting to resolve other issues before issuing a subpoena. There was no mention of whether Rieg should be deposed.

The other issue Skepnek said he hoped to resolve was whether the 50,000 pages were actually the whole case file that the state relied on for prosecution. He said there could be additional explanations for prosecutors of expert reports that were sent in emails within the office but were not added to the case file.

Qualseth said that he had given everything to Skepnek that he received from the DA’s Office. Skepnek said he understood that to be true but that he was still worried the state would present some wildcard at trial that he was not aware of.

McCabria said that, as far as the court is concerned, what has been exchanged between Skepnek and Qualseth should be considered all that there is and if the state does try to introduce new evidence later, that he would have to be “convinced in a great way.”

McCabria ruled that the subpoena be quashed for Seiden and modified for Valdez to say that it addressed the office at large and should be treated as such under civil procedure. He then ordered the DA’s Office to name its representative within 30 days and asked the attorneys to begin working out a timeline for depositions among themselves and report back to the court when those dates are finalized. A pretrial status conference is scheduled in March of 2024, but it is unclear what the new timeline will be and when the trial will be scheduled.