Carrody Buchhorn, whose murder conviction was overturned last year, will have a new preliminary hearing to determine whether she should stand trial again, a judge ruled Tuesday.
Bill Skepnek, Buchhorn’s defense attorney, told Douglas County District Court Judge Sally Pokorny last month 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.
Pokorny on Tuesday said she agreed that a new preliminary hearing was necessary, using an extended metaphor to explain why.
Case background: 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.”
Pokorny found in September 2017 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.
A panel of Kansas Appeals Court judges vacated Buchhorn’s conviction in August 2021 because her trial counsel’s constitutionally deficient performance — failing to properly investigate the cause of death — prejudiced Buchhorn’s right to a fair trial. Prosecutors petitioned for the Kansas Supreme Court to review the case, which it did; justices split on their decision in August of this year, so the lower court’s decision would stand and the case was remanded for a new trial.
See previous coverage of this case at this link.
Pokorny on Tuesday said she agreed with Deputy District Attorney Joshua Seiden that legal precedent did not indicate that Buchhorn should have a new preliminary hearing simply because appellate courts had remanded the case for a new trial.
However, very few cases are remanded when the expert who is explaining the cause of death as a homicide is no longer going to be the basis of someone being bound over for trial, Pokorny said.
Pokorny used a metaphor of a certified nursing assistant helping “your Great Aunt Jessie” get to bed for a nap in a nursing home, and then coming back to wake her for dinner and finding her dead. That alone is not evidence enough to think the CNA should be charged with Aunt Jessie’s death, just because she was the person who put her to bed, Pokorny said.
“Right now, that’s where we are in this case without an expert to testify that the cause of death was at the hands of another,” Pokorny said. “Just because you’re the last person with a child does not mean you’re the person who killed the child or caused the child’s death.”
Mitchell and investigators alleged that Buchhorn had killed the 9-month-old boy in her care because she was the person who had put him down for a nap.
Prosecutors will need to secure an expert or experts to testify about the cause of the child’s death, and expert reports, by Dec. 16. Seiden said the state was doing the best it can to make that happen, but just as Skepnek has been able to secure experts he wanted, the DA’s office also plans to also seek out the experts they want — not just the first ones available.
The case is set for a status conference on Dec. 2. Seiden said he would report on his progress in seeking an expert at that time.
Pokorny declined to modify Buchhorn’s pretrial release conditions pending further proceedings in the case. Buchhorn has been on house arrest since she was released from prison in late August 2021; altogether, she has been in custody or on house arrest for about five years.