Post last updated at 5:40 p.m. Friday, Aug. 19:
The Kansas Supreme Court has upheld the Court of Appeals ruling that reversed Carrody Buchhorn’s conviction in the 2016 death of 9-month-old boy at the Eudora child care center where she worked.
Buchhorn, of Lawrence, was convicted by a Douglas County jury of reckless second-degree murder in 2018, but her conviction was overturned by the Kansas Court of Appeals in August. The Douglas County district attorney’s office had asked the Supreme Court to review that decision.
Justice Kenyen Wall had recused himself from the case as he had previously represented Buchhorn, and the two-page opinion states that “When one of the justices is disqualified to participate in a decision of the issues raised in an appeal or petition for review, and the remaining six justices are equally divided as to the proper disposition of the issues on appeal or review, the judgment of the court from which the appeal or petition for review is made must stand.”
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 during oral arguments back in March — “bunk.”
The Court of Appeals ruling essentially stated that Buchhorn’s defense team during her trial, Paul Morrison and Veronica Dersch, had provided inadequate counsel because they 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.”
William Skepnek, the Lawrence attorney Buchhorn hired after she was found guilty and fired her trial counsel, had pushed for her to get a new trial before she was sentenced. Douglas County District Court Judge Sally Pokorny denied that motion and sentenced Buchhorn to 123 months, or 10 years and 3 months, which under state law is the maximum time for the conviction for someone with no criminal history.
Buchhorn had been in custody — first at the Douglas County jail, then at the Topeka Correctional Facility — for just more than three years when the Court of Appeals ruled on her case. She has remained on house arrest since she was released from prison in late August.
The Kansas Supreme Court released its published opinion on the case Friday morning. It affirms that the case should be remanded to Douglas County District Court for a new trial.
“The court being equally divided, the judgment of the Court of Appeals, the court from which review is sought, reversing the district court and remanding with directions stands,” the brief opinion states. “Buchhorn’s cross-petition for review is dismissed as moot.”
Cheryl Cadue, spokesperson for the Douglas County DA’s office, said in response to questions sent via email Friday morning, “We will proceed with the prosecution of this case.”
Skepnek, reached by phone late Friday afternoon, said he had been in trial all day, had not yet had a chance to read the opinion and could not immediately comment.122252-Buchhorn-sup-ct-op