Last updated at 1:20 p.m. Friday, Aug. 13:
The Kansas Court of Appeals on Friday reversed the conviction of Carrody M. Buchhorn and remanded the case to Douglas County District Court for a new trial.
Buchhorn’s appellate defense attorney, William Skepnek, argued to the court in June that Buchhorn’s defense team during her trial had provided inadequate counsel for their failure to investigate the coroner’s questionable ruling on the cause of death of a 9-month-old boy.
Buchhorn, now 47, 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.
“This matter involves a child who died unexpectedly at the home daycare where Carrody M. Buchhorn worked. Buchhorn was the last person who admitted having contact with the child. After the Douglas County coroner ruled the child’s death was instantaneous and caused by a blow to the head, a jury convicted Buchhorn of second-degree murder.
“We reverse Buchhorn’s conviction and remand for a new trial because her trial counsel’s constitutionally deficient performance prejudiced her right to a fair trial,” the opinion stated.
Jill Jess, spokesperson for the Douglas County district attorney’s office, said the state intends to file a petition for review with the Kansas Supreme Court.
Skepnek said he couldn’t understand why the DA’s office is “persisting in defending an injustice.” His primary focus now will be getting Buchhorn out of prison as quickly as possible.
The coroner, Dr. Erik Mitchell, concluded that the boy’s death was a homicide caused by “depolarization,” but a neuroscience expert who Skepnek asked to review the case said that 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 such a theory.
The full opinion of the court recites some of the background from the case, as well as the events of multiple post-trial evidentiary hearings during which Buchhorn’s new defense team sought a new trial.
Buchhorn’s trial attorneys were Paul Morrison and Veronica Dersch. Morrison was formerly the Johnson County district attorney and served as the state attorney general. Despite the team’s experience, neither attorney had ever filed a Daubert motion, which is a motion that aims to prevent a scientific expert from testifying in a case. (It’s named for the Supreme Court case Daubert v. Merrell Dow Pharm., Inc.) At post-trial hearings, Morrison said he regretted not filing one to try to block Mitchell’s testimony.
The team did hire a counter expert, forensic pathologist Dr. Carl Wigren, but did not seek a neurologist — despite that Mitchell had testified during the preliminary hearing that a neuropathologist might disagree with some of his findings.
“Trial counsel admitted the only time they specifically discussed other experts with Dr. Wigren was when he flew in on the Sunday after trial had begun, the night before he testified. While counsel fault Dr. Wigren for not bringing the need for other experts to their attention earlier, they fail to acknowledge their responsibility to directly address this issue with him,” the opinion states.
“It was counsel’s duty to ensure their expert addressed all necessary issues, particularly since they conducted no independent investigation on their own. Rather than making an informed decision on the expert testimony required to counter Dr. Mitchell’s theory, counsel simply abrogated their responsibility to Dr. Wigren, a witness with whom they had never worked, had never met, and who they complained was difficult to get ahold of.”
The opinion says there is a reasonable probability the jury would have found Buchhorn not guilty if Mitchell’s testimony and theory had been challenged.
The Court of Appeals usually only addresses the arguments that form the basis of its decision. But in this case, the court also addressed another argument: that comments made by Douglas County District Court Judge Sally Pokorny were prejudicial to Buchhorn’s right to a fair trial.
During jury selection, trial transcripts show, 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.”
The opinion states that the court fails to see the purpose of those remarks, “which neither assist the prospective jurors in understanding what will be expected of them if they are chosen to serve nor impart to them some legal principle applicable to the criminal justice process.”
“… In short, the trial judge’s remarks were imprudent and should not have been made,” the opinion states.
The court concludes by writing that it is not an easy decision to grant a new trial to someone who has been convicted of killing another human being.
“But more important than the severity of the crime is the fundamental principle of American law—all accused must receive a fair trial, even those accused of killing a child. That legal principle has guided our decision to order a new trial for Carrody M. Buchhorn.”
Buchhorn has been in custody — first at the Douglas County jail, then in the Topeka Correctional Facility — for just more than three years, since July 26, 2018.
Here’s the full opinion:Buchhorn-ruling