Post updated at 5:02 p.m. and 9:01 p.m. Friday, Dec. 16:
The case against Carrody Buchhorn, charged in connection with the death of a Eudora infant in her care, has been dismissed.
Douglas County District Court Judge Sally Pokorny filed an order dismissing the case Friday.
“The State has been on notice for over a year they have the burden to find a forensic pathologist to review the evidence and submit a report on the cause of death,” Pokorny wrote in the order.
Prosecutors are appealing the dismissal.
Case background: Coroner Dr. Erik Mitchell had testified that the Eudora 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 that 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 Bill 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.
In November, Pokorny ruled that Buchhorn should have a new preliminary hearing to determine whether there was enough evidence for her to face a second trial.
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 at the time.
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.”
During a status conference on Dec. 2, Deputy District Attorney Joshua Seiden said the state had retained new expert witnesses, and their reports should be completed by Friday, Dec. 16 to share with Buchhorn’s defense team to allow them time to prepare for the second preliminary hearing, which was set for Jan. 17.
Pokorny said if the state’s expert reports at that time did not meet the test of probable cause to continue on to the preliminary hearing, she would dismiss the case. Friday was a hard deadline for the reports in the case, which was initially filed in 2017.
The DA’s office filed a motion for an extension of time to get an expert report on file Friday, and Pokorny filed her order dismissing the case.
“According to pleadings filed this day by the defense, the State did provide a two page report from Terra Frazier, D.O. The defense claims this two page report fails to establish a cause of death, or a mechanism of death. The State this day has asked for a continuance of the expert deadline, disclosing it has a second expert who has been unable to complete a report due to the amount of material to review. The request is for an extension to the end of the month,” Pokorny wrote in the order.
“As a practical matter, this is a request for an extension within two weeks of the preliminary hearing setting on January 17th, 2023. This is an insufficient amount of time for the defense and the defense’s experts to review the report from the State’s experts. The State was on notice to begin looking for an expert on August 31st, 2021, over a year ago. The State has had sufficient time to repair their case.”
“If the State receives a report from an expert that it believes will allow them to move forward with this case, they have the ability to file a new Information,” Pokorny’s order concluded, stating that the prosecutors’ motion for a continuance was denied.
Cheryl Cadue, a spokesperson for the DA’s office, said via email, “The State received the district court’s order of dismissal at 4:04 p.m. The State filed its notice of appeal of the dismissal at 4:37 p.m.”
In arguments to the Kansas Court of Appeals last June, Skepnek said Buchhorn was convicted based on a coroner’s junk science, aided by a natural human desire to hold someone accountable for the tragic death of a 9-month-old baby.
“We understand that there is a desire to blame somebody for such a horrible event — a horrible event,” Skepnek emphasized, “but blaming Mrs. Buchhorn doesn’t make it better; it exacerbates the horror of this event.”
The neurological experts who reviewed Mitchell’s work on the case said they weren’t sure how the child had died, but they did know that it was not from a brain injury or skull fracture.
Multiple cases involving Mitchell, the former coroner for Douglas County, have come into question, including a case in New York in which a verdict was overturned in large part because Mitchell had changed his testimony about the time of a victim’s death, which was crucial to the conviction.
Mitchell made headlines last year because he had said he was unable to determine how Alonzo Brooks had died in 2004, but FBI experts investigating the cold case after it was reopened said forensic pathologists determined that Brooks’ death was indeed a homicide. Investigators believe he may have been the victim of a hate crime.
And as The Kansas City Star has reported, Mitchell’s testimony was also key in the murder conviction of Olin “Pete” Coones. Mitchell testified years after the fact that he was reversing his findings and believed that the victim’s death in that case was more likely a suicide. Coones was exonerated and released from prison after more than 12 years in November 2020. He died a few months later.
Altogether, Buchhorn spent more than five years in custody of the Douglas County jail, Topeka prison or on house arrest. She was released from prison in late August 2021 and has remained on house arrest since.
Despite her November ruling that Buchhorn should have a new preliminary hearing, Pokorny left the house arrest condition in place over the past month and a half.
It was not immediately clear Friday whether Buchhorn would be released from house arrest while the prosecutors appeal the dismissal.