The Kansas Court of Appeals ruled that Carrody Buchhorn should get a new trial in her 2017 second-degree murder case — but her attorneys think the legal process needs to go back further than that.
Bill Skepnek, Buchhorn’s defense attorney, told Douglas County District Court Judge Sally Pokorny Wednesday that her initial 2017 ruling binding Buchhorn over for trial in the death of a 9-month-old boy was based on pseudoscience that the embattled coroner himself later refuted.
Dr. Erik Mitchell had testified that the boy died from “depolarization”: 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. He said he had statistics to back up this theory. But top pediatric neurologists later testified that the theory was “absolutely false,” “made up” and “fantastical.”
Buchhorn’s case is one of several in which Mitchell’s testimony has come under scrutiny.
Mitchell’s own words in a post-trial hearing, regarding his testimony earlier in the same case: “I would probably change how I used the word ‘statistics’ there and the word ‘depolarization,’ because those are – while I was trying to use them in general terms, inartful in – didn’t fit into the way that they would be used by the pediatric neurologists. But I was trying to get a general idea of nerve function across, as I have explained. I think that would be the part that I would want to change.”
See previous coverage of this case at this link.
Following a preliminary hearing in September 2017, Pokorny found that there was probable cause to believe Buchhorn, who was accused of killing the boy who was in her care at a Eudora home day care, should face a trial in the case. Jurors in 2018 found Buchhorn guilty of reckless second-degree murder after deliberating for two days.
Buchhorn then fired her defense team and hired a new team, including Skepnek and Kevin Babbit, who pushed for a new trial, but Pokorny ultimately denied that request. Buchhorn was sentenced to 123 months in prison, the maximum allowable sentence for the conviction for someone with no criminal history. Her conviction was vacated in August 2021, and she was released to house arrest pending a retrial.
Joshua Seiden, deputy district attorney, told the judge that the state is seeking out a new expert to testify in the case instead of Mitchell.
Skepnek on Wednesday argued that if the state is withdrawing Mitchell and his testimony, then the preliminary hearing finding, too, should be withdrawn — and Buchhorn should be released from house arrest pending a new preliminary hearing with the new expert’s testimony.
Pokorny denied the motion to release Buchhorn from house arrest.
It was the second such motion Buchhorn’s attorneys have filed since her conviction was first overturned last year. The Kansas Supreme Court justices subsequently split on their decision in August, so the Court of Appeals ruling would stay in place.
Pokorny said she would consider the motion for a new preliminary hearing. She will decide whether it will go forward after a motions hearing set for Nov. 1, but she set the hearing for all day Tuesday, Jan. 17, to reserve the date on the calendar.
Regarding a new expert witness to take Mitchell’s place, Pokorny said prosecutors should aim to identify an expert and have complete reports to provide to Skepnek by Dec. 16. Seiden said they will “do the best that we can.” Pokorny said the case should be fast-tracked as much as possible.
Altogether, Buchhorn has been on house arrest or in custody of a jail or prison for about five years.
Our request to take screenshots during this hearing, which was livestreamed over YouTube, was denied.