Prosecutors’ actions are ‘retaliation for my efforts to represent my client and expose Douglas County’s policy or practice of using false testimony,’ attorney writes
A Lawrence attorney has filed a complaint against two Douglas County prosecutors, alleging their conduct has been “spiteful, malicious, unjustified” and in violation of professional code.
William Skepnek is also calling for the state of Kansas to investigate Dr. Erik Mitchell, the embattled former Douglas County coroner, alleging that he committed perjury in his testimony about a Eudora baby’s death.
Finally, he says the DA’s office should be disqualified from handling his client’s case: “There is no good reason to believe that in the future the Douglas County District Attorney’s Office will begin acting impartially in this matter.”
Skepnek is representing Carrody Buchhorn, whose second-degree murder conviction was recently overturned by the Kansas Court of Appeals. She was charged with killing a 9-month-old boy at the daycare where she worked.
In Buchhorn’s case, Mitchell “falsely testified that medical science recognizes a mechanism of death which he described as ‘depolarization of neurons’ and that the diagnosis was supported by ‘statistics,’” Skepnek wrote in a letter Monday.
The appellate court’s opinion said there is a reasonable probability the jury would have found Buchhorn not guilty if Mitchell’s testimony and theory had been challenged. Assistant DA Emma Halling filed a petition asking the Kansas Supreme Court to review that decision.
Skepnek’s first letter was sent to Douglas County District Attorney Suzanne Valdez, Deputy DA Joshua Seiden, and carbon copies Kansas Disciplinary Administrator Gayle Larkin, all three Douglas County commissioners, the county administrator, Kansas Attorney General Derek Schmidt, and the Kansas Board of Healing Arts.
It focuses largely on the DA’s office continuing to “protect” Mitchell, even though his testimony “was under oath, about a material matter, false, and it was willful and not the result of confusion, mistake, or faulty memory,” Skepnek wrote.
But in a separate letter to Larkin — whose appointment to lead the state office that investigates attorney misconduct just took effect on Sunday — Skepnek wrote that Valdez and Halling “falsely represented to the Supreme Court that I misrepresented the testimony of a witness in an affidavit that I drafted, and that I threatened the witness to obtain the signature.”
The conduct described of him is unethical at the least and criminal at the most, he wrote.
“Their attack of me is not random but is a part of a pattern of retaliation for my efforts to represent my client and expose Douglas County’s policy or practice of using false testimony to obtain criminal convictions,” Skepnek wrote.
Specifics of the complaint
Buchhorn fired her team of trial attorneys, Paul Morrison and Veronica Dersch, after the jury convicted her. She then hired a new team, Skepnek and Kevin Babbit. During evidentiary hearings seeking a retrial, experts said Mitchell’s theory of the child’s death — which he also called an “electrical interruption” — were “imagined, “fabricated” and “nonsense.”
Douglas County District Court Judge Sally Pokorny denied the motion for a new trial and, in September 2019, sentenced Buchhorn to the maximum time allowed under state sentencing guidelines.
During the trial, an expert for the defense, Dr. Carl Wigren, had testified about the cause of the child’s death. However, afterward, he signed an affidavit stating that he was not aware of Mitchell’s “electrical interruption theory,” or he would have researched it ahead of the trial and addressed it.
The petition for review by the Kansas Supreme Court, written by Halling, states that Morrison testified during post-trial hearings “that the allegations in Wigren’s affidavit about not discussing depolarization were ‘a lie … an absolute untruth.'” She wrote that “Morrison testified that he knew Wigren had not drafted the affidavit; it was post-conviction counsel Bill Skepnek who did so, and Skepnek ‘threatened to come out there and drag [Wigren] here or depose him or whatever if he didn’t sign it.’”
Skepnek writes in his letter that there is nothing in the record to suggest that the affidavit he drafted was false or incorrect, or that he had threatened Wigren to get him to sign it. He writes that Morrison’s testimony “has been manipulated to make it appear that Morrison said something that he directly refused to say.”
He writes that Halling and Valdez knew that Wigren himself had testified that the affidavit was accurately drafted; otherwise, he wouldn’t have signed it.
“Their statement baselessly impugns the integrity of the undersigned counsel and places the slander indelibly in the public record,” Skepnek wrote to Larkin.
Morrison’s testimony during the hearing, according to a court transcript, was:
“… And when I first saw that affidavit, I was pretty angry because I know the truth, and I told Ms. Dersch, ‘This is a lie. This is a black lie about never discussing that with him. That is an absolute untruth. It’s an absolute lie.’ We discussed that on multiple occasions. It was one of the big things in the case. Now granted, if you want to play word games, did I use the word ‘electrical impulse theory’ back then with him? Probably not. So I suppose technically, he is telling the truth about that; but if the question is, did we discuss, more than once, several times, this theory that he died because of the concussion to his spinal cord, stopped the autonomic function of his body, i.e., respiration and that sort of thing, yes, we discussed it on multiple occasions, as I said previously.”
And: “I didn’t talk to him (Wigren), but I know Ms. Dersch did, and maybe my paralegal that day, but you threatened to come out there and drag him here or depose him or whatever if he didn’t sign it.” Then, asked if he has information from Wigren that the affidavit is not true, Morrison responded, “I didn’t say that.” (Click here to see those pages of the transcript.)
But the way the statements were phrased in the petition to the state’s highest court, Skepnek said, “There’s no way anybody reads that and they don’t reach the conclusion that I submitted an affidavit from Dr. Wigren that misrepresented his testimony or fabricated his testimony, and that I threatened him to get him to sign it.”
Skepnek had filed a motion for a bond modification to release Buchhorn from house arrest and allow her to have contact with some people on the witness list. He wrote that the state listed 71 people as witnesses in the case but only called 17 witnesses to testify during the trial. Among the 54 who were not called were two of Buchhorn’s best friends, but because they’re on the list, she has not been allowed to have any contact with them in years.
Valdez and Halling objected to that motion, and wrote in response that “The defendant’s own statements belie her claims of good conduct, acquiescence, and likely cooperation with the court.” They included statements from Buchhorn’s phone calls to her husband from prison just before she was released, including calling the judge a “stupid f—ing bitch” and stating that “I swear if that Pokorny bitch makes me talk through my teeth anymore I am going to be mad.”
In the letter copied to county leaders and state officials, Skepnek wrote that this was “a blatant attempt to publicly embarrass Mrs. Buchhorn and prejudice Judge Pokorny against Mrs. Buchhorn.”
“It must be noted that your recent conduct in this case demonstrates that you have taken a personal stake in the case, precluding any reasonable expectation that you will fairly and impartially perform your duties under the law,” Skepnek wrote. “You have retaliated against Mrs. Buchhorn and her undersigned counsel for publicly exposing Dr. Mitchell’s dishonesty, the use of false evidence by your office, and the efforts of your office to protect Dr. Mitchell.
“It is the duty of Douglas County and the State of Kansas to investigate the entire matter without partiality. To any objective and reasonable observer, your demonstrated malice and vindictiveness disqualify you and your office from any further involvement in this case.”
The Times sought comment from the DA’s office, including specifically asking if the DA’s office has determined whether they will allow testimony from Mitchell.
“The District Attorney’s Office does not litigate in the media. We await the ruling on our Petition to Review,” Jill Jess, a spokesperson for the DA’s office, said via email Tuesday.
Buchhorn was in custody for just more than three years, until her conviction was overturned in August.