photo by: Journal-World

Clockwise from left: Douglas County District Attorney Suzanne Valdez, Carrody Buchhorn (center), Buchhorn's attorney Bill Skepnek, Chief Judge James McCabria, Deputy DA Joshua Seiden.

The Douglas County District Attorney’s Office mistakenly gave a massive amount of documentation to a plaintiff who is suing for wrongful imprisonment, and on Monday a Douglas County judge ruled that the office can’t “claw it back.”

The upshot is that the attorneys of Carrody Buchhorn, whose murder conviction was overturned and who is now suing, can use that information in her lawsuit against the state.

“(They) failed to take any steps to prevent this disclosure,” said Quentin Templeton, one of Buchhorn’s attorneys, and Chief Judge James McCabria agreed, saying that District Attorney Suzanne Valdez’s office should have shown more care in protecting the office’s work product from exposure.

The materials that the DA is trying to claw back contain privileged information about the state’s criminal case against Buchhorn, such as notes regarding prosecutors’ mental impressions and other matters.

The realization of the exposure of the material — tens of thousands of pages — occurred amid a tense legal battle in which Valdez claimed not to know enough about the case to testify in the civil suit despite at one point having pursued her prosecution of Buchhorn all the way to the Kansas Supreme Court.

The wrongful imprisonment lawsuit was filed by Buchhorn, 49, of Lawrence, who was convicted in 2018 of second-degree murder in connection with the death of 9-month-old Oliver Ortiz in September 2016 at a Eudora day care where she worked. Buchhorn’s conviction was overturned on appeal due to ineffective assistance of counsel in 2021 and was sent back to the Douglas County District Court. Valdez continued to pursue the prosecution of Buchhorn through 2022, but the case was dismissed by the district court at the end of that year when the DA failed to produce an expert who would determine that the baby’s death was a homicide.

Valdez ceased prosecution only when an expert’s report said that the baby had died not from abuse but from natural causes, specifically a heart defect. That was in January of 2023, but in March of this year Valdez, apparently disregarding that expert, reopened the investigation and said charges could be refiled against Buchhorn.

Shortly after the expert’s findings were announced, Buchhorn filed a civil suit against the state for compensation for wrongful imprisonment for the nearly seven years she spent in custody.

Buchhorn is represented by attorneys Bill Skepnek and Templeton while the state is represented by Assistant Attorney General Shon Qualseth. The civil case is being heard in Douglas County District Court by McCabria. Valdez is represented by attorney Greg Goheen and in part by Deputy District Attorney Joshua Seiden’s attorney, Holly Dyer.

On Monday, McCabria ruled in favor of Buchhorn after he was asked by the parties to settle a dispute about whether the criminal case file that was given to Buchhorn’s attorneys could be clawed back. The DA’s Office argued that the file contained work product and mental impressions from the attorneys who prosecuted the criminal case, C.J. Rieg and now-District Court Judge Mark Simpson. Qualseth said he was taking no position on the matter.

Work product refers to any expert reports or other documents created by prosecutors while the criminal case was being investigated and prepared for trial. Mental impressions refer to any notes on a document that may explain the relevance of a piece of evidence. Both are generally protected materials that are not subject for review by anyone outside of the DA’s Office.

Early on in the case, Skepnek repeatedly asked the court to compel the state to ensure that it had produced all of the evidence that it had relied on to prosecute Buchhorn, and repeatedly Qualseth assured the court that it had done so. Qualseth said that he had provided Skepnek with everything that the Douglas County DA’s Office had given to him — all 51,000 pages — which he trusted had been reviewed by Valdez’s office and was fine to turn over.

Valdez and Seiden were named as fact witnesses by Qualseth in the case but their involvement has become a topic of contention as evidenced by recent hearings and filings. Valdez and Seiden have objected to being deposed in the case by Skepnek and wanted to name a representative in their office to speak on their behalf. Valdez’s attorney, Goheen, failed to name that representative in a timely manner and was ultimately fined by the court in January, as the Journal-World reported. Seiden was ultimately named as the representative of the office and both Valdez and Seiden are scheduled to be deposed next week.

Seiden’s objections to being deposed centered on a subpoena from Skepnek asking him, prior to giving testimony, to review the documents in the file and to identify the materials the DA’s Office relied on to determine Buchhorn’s guilt. Seiden objected to the notion that he should be asked to review the entire file and joined Valdez’s objection to testifying, claiming that neither had sufficient knowledge about the case to testify about why Buchhorn was being prosecuted, as the Journal-World reported.

McCabria ruled on Monday that Seiden’s failure to properly identify privileged documents prior to handing them over to the Attorney General’s Office for the civil case has now resulted in a waiver of those protected materials.

Dyer, Seiden’s attorney, had asked the court to claw back a significant portion of the case file that was sent to Skepnek. Dyer said Monday that after she had reviewed the case file that as much as 20,000 to 30,000 pages needed to be returned by Skepnek or destroyed.

Dyer said that Qualseth forwarded the file that he received from the DA’s Office and that he was unaware that it contained any privileged information. She said Seiden had sent the file to the AG not knowing that Qualseth intended to share the entire file with Skepnek. She said it was a “simple misunderstanding” and that the court should allow the DA’s Office to claw back the files it deemed privileged.

Kansas law allows for information to be clawed back in a case so long as the disclosure of the information was inadvertent, the holder of the information took reasonable steps to prevent disclosure, and the holder promptly took reasonable steps to rectify the error.

McCabria found that such steps had not been taken by the DA’s Office.

“Protecting the integrity of their work product in case of reopening the (criminal) case should have been critical,” McCabria said of the care the DA’s Office should have shown.

Dyer said that Seiden had tried to identify those materials. She said the file was a mix of digital records and paper documents and that members of the office were working together to scan the paper documents into the computer to create one master digital file. She said another attorney in the office told Seiden at one point in the process “it’s scanned” and Seiden then sent the file to the AG.

Templeton, Buchhorn’s attorney, argued that the DA and AG had failed to meet all three prongs of the law that would allow for the materials to be clawed back. He said the materials were given over intentionally, not inadvertently, and that both Seiden and Qualseth have admitted to not reviewing the materials in full before giving them over. He said his co-counsel Skepnek had even informed the court at a hearing in November 2023 that many of the documents contained notes on them that amounted to mental impressions.

Templeton said that no one in that hearing raised the issue of privilege at that point and chose not to until four months later, in March of this year, with the depositions of Valdez and Seiden on the horizon.

“(They) failed to take any steps to prevent this disclosure,” Templeton said.

He noted that the DA Office’s claims about not knowing anything about the case were “diametrically opposed” to what Valdez had claimed when she announced she would not continue prosecution in January 2023. She said in that statement that the forensic pathologist she secured for the case determined Ortiz died of natural causes.

“I want to emphasize that since I took office, the State has been extremely engaged and acted in a highly diligent manner in handling this case. In addition to myself, the case has been reviewed by multiple attorneys in this office with extensive experience in both appellate and trial litigation. Additionally, I sought review of case materials from another District Attorney’s Office as well as assistance from the Office of the Kansas Attorney General,” Valdez said in a press release in January 2023.

Templeton called the attempt to claw back the material a delay tactic to prevent Valdez or Seiden from giving testimony.

“The argument keeps shifting to prevent Valdez and Seiden from being deposed,” Templeton said.

He added that it seemed like Dyer had done more due diligence than the DA’s Office in reviewing the file by “digging through paper files in a dark basement” to identify the list of privileged material.

“What did the DA do, what did the AG do prior to disclosure? Nothing,” Templeton said.

Prior to ruling, McCabria said he had reviewed materials from Dyer that showed some of the work product in question. He said he didn’t think — of the material he saw — that it would be prejudicial to the prosecuting attorney for the opposition to have it.

He said that Seiden’s written declaration in support of the claw-back motion about the materials effectively said that Seiden didn’t know what was in the file or what portion of the file would be disclosed. McCabria agreed with Templeton that after Skepnek mentioned the mental impressions in November, a prompt response from the state to protect that material should have come much sooner.

The disclosure of the prosecutorial materials may have broader implications since the DA’s Office declared in a recent filing in the civil case that it considers the baby’s death an open investigation that could lead to charges, as the Journal-World reported. Templeton said that reopening the criminal case was a “scare tactic” meant to deter Buchhorn from pursuing the civil suit. Charges have not been refiled against Buchhorn, but Qualseth said he has secured a medical examiner who determined that Ortiz’s death was a homicide.