Article updated at 12:43 p.m. Wednesday, March 30:
Kansas Supreme Court justices on Wednesday raised questions about a coroner’s theory that “depolarization” in a Eudora infant’s brain had caused instantaneous death at the hands of a child care provider.
The defendant, Carrody Buchhorn, of Lawrence, was convicted by a Douglas County jury of second-degree murder, but her conviction was overturned by the Kansas Court of Appeals in August. The Douglas County district attorney’s office asked the Supreme Court to review that decision.
Following her conviction, Buchhorn had fired her trial defense team of Paul Morrison and Veronica Dersch. She hired a new team, including Lawrence attorney William Skepnek.
Skepnek sought a new trial for Buchhorn before she was sentenced, arguing that her attorneys failed to challenge coroner Erik Mitchell’s theory of the child’s death: that a blow to the head caused a hairline fracture to the baby’s skull but no brain injuries, and that it had induced electrical energy into the brain.
Top pediatric neurologists later testified that the theory was “absolutely false,” “made up” and “fantastical.”
Douglas County District Court Judge Sally Pokorny denied the motion for a new trial, but Buchhorn’s conviction was overturned because the Court of Appeals found that “her trial counsel’s constitutionally deficient performance prejudiced her right to a fair trial,” the opinion stated.
The appeals court ruled that there was a reasonable probability the jury would have found Buchhorn not guilty if they had heard that the theory of death was — as a Kansas Supreme Court justice put it Wednesday — “bunk.”
Justice Eric Rosen asked about the theory during arguments Wednesday morning. He said the state Supreme Court has presided over many major cases, and he did previously as a district court judge.
“I just do not recall — and if you can tell me if you can — where there’s been a coroner’s determination of a cause of death that is testified to and that is the basis for the cause of death in a homicide case that isn’t right, that is just bunk,” Rosen said. “Have you ever — I don’t recall that ever happening … What do you have to say about that, as a representative of the state?”
Kristafer Ailslieger, deputy solicitor general, argued on behalf of the Douglas County district attorney’s office.
“Well, I’m not sure that it’s bunk. I mean, that’s the thing. That’s why we have these arguing experts,” he said.
“Even Dr. Mitchell says there’s no support for the theory,” Rosen said.
Ailslieger responded that “there’s always no support for a theory initially.”
“All theories start somewhere,” he said in closing. “You know, Galileo had a theory that everybody thought was nonsense at one point in time. So maybe Dr. Mitchell knows what he’s talking about.”
Justice Caleb Stegall asked Ailslieger whether the jury ever heard the defense expert — Dr. Carl Wigren, a forensic pathologist who testified that the skull fracture was older and showed signs of healing, so Buchhorn could not have been responsible — that Mitchell “doesn’t know what he’s talking about.” Ailslieger said no, “not in that type of language.”
“Isn’t that the whole crux of the ineffective assistance of counsel claim, is (that) there should have been competing expert testimony on this depolarization cause of death put in front of the jury?” Justice Melissa Taylor Standridge asked.
Ailslieger said the trial team’s choice to pursue testimony that would make jurors question the child’s time of death rather than the depolarization cause was “objectively reasonable.”
The case is further complicated by what issues the appellate courts are able to review. But Ailslieger said the Court of Appeals judges had reweighed evidence in support of their opinion rather than deferring to the District Court’s findings, which is something “they’re not supposed to do.”
Attorneys raise objections during trials so that issues can be preserved for appeals. Stegall noted that Pokorny could have said she would not review the issues in Skepnek’s motion for a new trial at all because Buchhorn’s original defense team did not make contemporaneous objections.
“But when the District Court actually goes ahead and says, ‘OK, I’m going to entertain objections, post-verdict but pre-judgment,’” Stegall said, “that’s the narrow window that we’re in, which strikes me as something not necessarily contemplated by the preservation statutes and rules. And the result of the Court of Appeals opinion is that it makes what the District Court did here unreviewable, and that’s what my concern is.”
“As an appellate attorney, I like the preservation (issue) because I think we all need to have rules to abide by and we follow them,” Ailslieger said.
“A quick summary: Your view is that the statute makes this kind of a ruling by a District Court unreviewable?” Stegall asked, and Ailslieger said yes.
Justice K.J. Wall recused himself from the case. He was a member of Buchhorn’s post-trial defense team before being appointed to the Kansas Supreme Court in March 2020.
The court will issue a written ruling.