The Douglas County District Court has denied a motion for a change of judge after the defendant’s derogatory statements in private phone calls about the judge assigned to her murder case were publicized by prosecutors.
Carrody Buchhorn, 47, was charged with killing a 9-month-old boy at the Eudora daycare where she worked, but her attorney, William Skepnek, has argued that the coroner’s testimony about the child’s cause of death was fabricated. Buchhorn’s second-degree murder conviction was overturned in August by the Kansas Court of Appeals.
Judge Sally Pokorny had sentenced Buchhorn to the maximum sentence allowed under state law, 123 months, for the jury’s conviction of second-degree murder.
Buchhorn served about three years behind bars. She was released shortly after the Court of Appeals ruled that a jury might have found her not guilty if the coroner’s testimony and theory had been challenged.
But in the days before she came home, Buchhorn reportedly made comments in a phone call to her husband from prison about Pokorny — 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.”
Prosecutors included those statements in their objection to a request for Buchhorn to be taken off house arrest. Skepnek then filed a motion for a change of judge, citing a state law that says parties in a case can request a change of judge if they believe the assigned judge cannot afford them a fair trial.
But on Wednesday, Pokorny announced that she would not recuse herself from the case. Buchhorn and Skepnek then submitted the motion to the chief judge of Douglas County District Court, James McCabria, along with affidavits expressing their concerns.
Skepnek wrote that the prosecutors included his client’s comments at best to embarrass her, or at worst to prejudice the judge against her. But “in light of the gravity of this matter Mrs. Buchhorn cannot be expected to accept and endure without objection the State’s conduct that created this conflict for the Court. … Following the State’s conduct, Mrs. Buchhorn does not trust and cannot be expected to trust that she will obtain fair or impartial rulings from the Court.”
McCabria on Monday ruled that the concerns in the affidavits don’t fall within the scope of the state law and denied the motion: “None of the allegations offered in support of the request for change of judge make any allegation that Judge Pokorny has said or done something that would give any reasonable person grounds to believe that Judge Pokorny has violated any legal, ethical or moral obligation she has as a judge — in this case or in fulfilling any of her judicial functions,” he wrote.
He noted that judges are routinely the object of “pointed and critical comments” by the public and parties in cases, and that the comments prosecutors attributed to Buchhorn “might be characterized as unremarkable as compared to other disrespectful and inappropriate commentary leveled at judges.”
“… Each judge does well to know when they have reached their limit and when they must disqualify themselves from a particular case,” the order continued. “In this case, Judge Pokorny has indicated her impartiality is fully intact. The affidavits only speculate as to the impact of the comments attributed to Ms. Buchhorn. Granting a change of judge in such circumstances would be improper.”
The district attorney’s office has asked the Kansas Supreme Court to review the Court of Appeals’ reversal of Buchhorn’s conviction. The Supreme Court has not yet ruled, and court records Monday indicated that Buchhorn did not yet have any future court dates scheduled.