An attorney argued Thursday that his client was convicted based on a coroner’s junk science, aided by a natural human desire to hold someone accountable for the tragic death of a 9-month-old baby.
Carrody Buchhorn, now 46, was convicted of reckless second-degree murder after jurors deliberated for two days in 2018. She was sentenced to 123 months, the maximum allowable sentence for the conviction for someone with no criminal history.
The prosecutors’ theory was that Buchhorn, who was working as a childcare provider in Eudora, had killed the baby in her care by causing blunt force trauma to his head.
Though the boy had a cranial fracture, the coroner, Dr. Erik Mitchell, said those fractures are neither uncommon nor fatal; but Mitchell said there was no injury to the child’s brain. He concluded that the death was a homicide caused by “depolarization,” and the boy had died almost instantaneously after the injury. Buchhorn was the last person to care for the child.
Buchhorn fired her trial counsel, Paul Morrison and Veronica Dersch, after the verdict. She hired a new team, including Lawrence attorney William Skepnek, to represent her for post-trial proceedings and for her appeal. The new team has called the coroner’s ruling into question as “imagined, “fabricated” and “nonsense.”
Skepnek told a panel of Kansas Court of Appeals judges Thursday that he believes the case is an injustice.
“We understand that there is a desire to blame somebody for such a horrible event — a horrible event,” Skepnek emphasized, “but blaming Mrs. Buchhorn doesn’t make it better; it exacerbates the horror of this event.”
At the appellate level, attorneys’ arguments must focus on legal issues rather than issues with the evidence. Skepnek argued that Morrison and Dersch provided ineffective assistance of counsel by failing to investigate the depolarization theory.
Mitchell said that by transferring energy to the right area of the brain, “there will be a depolarization of the nerves. In other words, the electrical signal of the nerves is interfered with, and the problem with interfering with the electrical signal at the base of the brain is if you lose function for a few minutes, you are going to die. There doesn’t have to be any visible injury to the brain.”
Mitchell had also demonstrated a theory for the jury by stepping on a mannequin infant’s head — another concern Skepnek raised.
An expert for the defense during Buchhorn’s trial, forensic pathologist Dr. Carl Wigren, testified that the skull fracture was older and showed signs of healing. He noted that Mitchell said during the autopsy video that the injury may have been a day or two old but never did tests to confirm. Mitchell also failed to X-ray the body. Wigren said it was difficult to determine what had caused the baby’s death, but he suspected multiple factors, and that the injuries had “smoldered along” before reaching a critical point.
However, Wigren did not address the depolarization theory. Skepnek said Buchhorn’s attorneys should have pursued both, and Wigren said during post-trial hearings that if the defense team had pressed him about it, he would have encouraged them to seek a neurologist’s opinion.
One neuroscience expert who Skepnek asked to review the case said the depolarization theory was contradicted by accepted neurological principles. Another said he had never heard of such a concept, and he was unable to find any medical research that supported that theory.
“Dr. Mitchell’s theory is ‘fantastical’ and inconsistent with established scientific principles and teachings regarding neurological brain function, at which colleagues laughed,” Buchhorn’s attorneys wrote in their appellate brief, citing testimony of pediatric neurologist Dr. Sudha Kessler. “… Depolarization may offer a ‘simple explanation’ for a supposedly scientific phenomenon, ‘but it’s absolutely false. It’s made up’ and beyond the realm of acceptable science.”
Judge G. Gordon Atcheson asked whether the two experts countering Mitchell’s theory after the trial could have created reasonable doubt for the jurors if they had testified, and whether that could have altered the outcome of the case.
Emma Halling, the assistant Douglas County district attorney who argued the case Thursday, said the defense strategy focusing on the age of the injury — which countered the prosecutors’ theory that Buchhorn must have been responsible — was sufficient to make the jury question Mitchell’s findings. Halling said she thought the defense attorneys had pursued the explanation that jurors would have understood, as opposed to the complicated theory of depolarization.
Mitchell has been in the news lately because he had said he was unable to determine how Alonzo Brooks had died in 2004, but FBI experts investigating the cold case after it was reopened last year announced in April that forensic pathologists determined that Brooks’ death was indeed a homicide. Investigators believe he may have been the victim of a hate crime.
Multiple cases involving Mitchell have come into question, including a case in New York in which a verdict was overturned in large part because Mitchell had changed his testimony about the time of a victim’s death, which was crucial to the conviction.
Judge’s comment comes into question
During jury selection, trial transcripts show, Judge Sally Pokorny explained defendants’ constitutional rights to the potential jurors. She said defendants have those rights “because the people who wrote our Constitution were criminals. They had been charged with treason; and if they had been found guilty, they would have been hanged to death, and they wrote our Constitution in a way that they would have wanted to be protected when they went to trial.”
Buchhorn’s attorneys have said they think that statement could have been prejudicial. The Court of Appeals judges asked some questions about it Thursday.
“We’ve got a defendant there who is presumed innocent, and we’ve got the judge saying criminals rely upon the Constitution — I found it a bit shocking,” Judge Stephen Hill said.
Halling said she thought it was an “off-color comment,” but she didn’t believe it affected the jury’s verdict.
“And there are far more prejudicial people that you can be compared to than perhaps the most lionized figures in American history,” Halling said.
Hill responded, “It’s simply more than off color — it’s blatant, is it not? It’s saying, if you seek the constitutional rights, you’re a criminal?”
The judges will consider the case and release a written opinion. That could come in as little as a week or two, or it could take a few months.
Buchhorn is in minimum-security custody, according to the Kansas Department of Corrections. Her earliest possible release date is April 5, 2027.