photo by: Contributed

Carrody Buchhorn

A lawsuit seeking at least $400,000 in damages from the state of Kansas for wrongful imprisonment related to an overturned conviction in a case involving the 2016 death of an infant is still proceeding — for now.

A Douglas County District Court judge on Wednesday heard the first round of arguments over whether the wrongful imprisonment lawsuit filed by Carrody Buchhorn against the state of Kansas should be dismissed. Buchhorn was charged and convicted in 2018 in the death of 9-month-old Oliver Ortiz, who was at a Eudora day care where Buchhorn worked.

But Buchhorn’s conviction was overturned by the Kansas Court of Appeals in August 2021 because Buchhorn’s trial attorneys were deemed ineffective. While the case could have been retried, the Douglas County District Attorney’s Office in January 2023 announced it was ceasing prosecution of the case after a forensic pathologist retained by the office had concluded Ortiz died from a natural disease rather than child abuse.

On Wednesday, Buchhorn’s new attorneys argued that finding should be enough for the wrongful imprisonment suit to continue. Attorney Marc Templeton said that not only has the state failed to present evidence that Buchhorn was responsible for the death of Ortiz, but rather the the state has presented evidence to the contrary.

An attorney for the state of Kansas, though, disagreed. Assistant Attorney General Shon Qualseth is asking for the case to be dismissed after the Kansas Supreme Court ruled in a separate case that for Kansas’ wrongful imprisonment statute to be fulfilled, the person who was convicted must prove that they are “actually or factually” innocent.

Qualseth argued on Thursday that Buchhorn’s conviction was overturned due to ineffective assistance of counsel after Buchhorn’s trial attorneys failed to adequately examine a set of autopsy conclusions, and not because Buchhorn is innocent. He said that without proof of actual evidence, Buchhorn is not eligible for compensation.

Templeton, however, said the DA’s office had already proved Buchhorn’s innocence. He said that when the DA’s office in 2023 chose to abandon the testimony related to the original autopsy conclusions, the state lost all probable cause to charge Buchhorn with a crime. Templeton said District Attorney Suzanne Valdez went a step further when she issued a press release that said the state’s new medical examiner who reviewed the case concluded that Ortiz died of natural causes.

Qualseth, arguing for the state, said there was other evidence that could be used in court, while Buchhorn’s attorneys argued any such evidence already had been rejected by the court.

Douglas County District Court Judge James McCabria scheduled additional arguments on the matter for Dec. 6 and issued no rulings on Wednesday. He said the recent Kansas Supreme Court ruling needs to be considered, but said so too do the statements that have come out of the District Attorney’s office and its forensic pathologist.

The wrongful-conviction suit was filed in 2023 by Buchhorn. She is seeking about $400,000 in compensation, plus attorney fees, for the more than five years that she was incarcerated in some form.