Article updated at 4:07 p.m. Wednesday, Nov. 24:
The Kansas Supreme Court will review a high-profile Douglas County District Court murder case.
Carrody Buchhorn, 47, was charged with killing a 9-month-old boy at the Eudora daycare where she worked, but her attorney 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 and her case sent back to Douglas County for a new trial.
The appellate court reviews legal issues rather than strength of evidence, so the court’s decision was essentially that the attorneys who represented Buchhorn during her trial did not perform adequately because they did not investigate the coroner’s findings properly.
According to the case’s online docket, the state Supreme Court on Wednesday granted the prosecutors’ petition to review the case, but also Buchhorn’s attorneys’ cross-petition for review.
The state’s petition for review, signed by Emma Halling, assistant Douglas County district attorney, Douglas County District Attorney Suzanne Valdez, and Kansas Attorney General Derek Schmidt, argues that the panel of Court of Appeals judges “impermissibly reweighed evidence by disregarding testimony upon which the district court judge relied and crediting testimony that she deemed not credible.”
It also argues that the panel misapplied legal standards for ineffective assistance of counsel “by demanding that attorneys know more about nuanced medical science than their medical experts,” and says that if the caselaw was applied in other cases, it “would establish an unattainably high standard for defense counsel.”
However, in the cross-petition for review, Buchhorn’s attorneys — William Skepnek, Stephan L. Skepnek, Quentin M. Templeton and Kevin Babbit — wrote that the Kansas Supreme Court should also review the lower court’s refusal “to consider and reverse the District Court’s finding that (coroner) Dr. (Erik) Mitchell’s depolarization theory was admissible as scientific knowledge” under state law.
“If granting the State’s Petition for Review, the Court should take this opportunity to unequivocally hold that Kansas courts cannot accept or rely – at any time – upon demonstrably false evidence,” the cross-petition states.
Jill Jess, spokesperson for the DA’s office, said via email Wednesday that “Given that the matter is very much still pending, we cannot comment.”
William Skepnek, reached by phone Wednesday, said that “Carrody Buchhorn’s view is that the Supreme Court wanted to emphasize the correctness of the Court of Appeals’ ruling with a published opinion, and the Supreme Court wanted to look at this issue of whether or not we preserved the issue of the admissibility of Mitchell’s testimony such that the court can rule on its merits to exclude that testimony.”
“Little bit technical, but that’s what I think this is about,” Skepnek added.
The petition for review, defendant’s response and the conditional cross-petition for review are below.Buchhorn-Petition-for-review-docs