Post last updated at 10:25 p.m. Wednesday, Jan. 4:
An expert’s report has concluded that a 9-month-old Eudora boy likely died of natural causes, and the Douglas County district attorney will not continue prosecution of Carrody Buchhorn, whose conviction in connection with the boy’s death was overturned.
“Highly summarized, the 11-page report of the forensic pathologist concludes that, ‘It is my opinion, held within a reasonable degree of medical certainty, that Oliver Ortiz died from natural disease and pathophysiologic processes unrelated to child abuse,’” DA Suzanne Valdez said in a media release Wednesday evening.
Specifically, the forensic pathologist’s report indicates that she believes a congenital heart disease combined with other possible conditions led to the boy’s death.
“Upon receipt and review of the forensic pathologist’s report dated January 3, 2023 and having conferred with other attorneys in this office, I have concluded that at this time, we do not have sufficient evidence to proceed with the prosecution of Ms. Buchhorn,” Valdez wrote in the release.
Douglas County District Court Judge Sally Pokorny filed an order dismissing the case on Dec. 16 because the prosecution team had missed the deadline for the new expert report. The DA’s office filed a motion for an extension of time to get the report on file by the end of December, but the judge dismissed the case, noting that the state had been on notice for more than a year to get the new report on file.
“While there are conflicting findings between the State’s two retained experts, as well as other evidence to support prosecution, we do not believe the evidence is likely to meet our burden of proving guilt beyond a reasonable doubt,” Valdez continued in the release.
Jurors in 2018 found Buchhorn guilty of reckless second-degree murder of the boy, who had been in her care at a Eudora day care. 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.
Coroner Dr. Erik Mitchell had testified at trial 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.”
In arguments to the Kansas Court of Appeals last June, the attorney Buchhorn hired after her jury trial, Bill 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. Neurological experts who reviewed the coroner’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.
“We understand that there is a desire to blame somebody for such a horrible event — a horrible event,” Skepnek emphasized at the time, “but blaming Mrs. Buchhorn doesn’t make it better; it exacerbates the horror of this event.”
Valdez on Wednesday said her administration has not called Mitchell to testify since she took office in January 2021.
“As I campaigned for this office, my core message was ‘Setting a Higher Standard,'” the release stated. “That applies to myself, everyone in my office, law enforcement partners, and any expert witnesses we may call to testify. For reasons fully chronicled in both local and national media, Dr. Erik Mitchell does not meet that standard.”
But Valdez noted that Mitchell had not been barred by any court from testifying in this case, “nor has any of his prior testimony in this case been stricken.”
“As a matter of prosecutorial discretion, I chose not to use Dr. Mitchell as a witness of any sort due to his questionable professional reputation,” she wrote.
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 remained on house arrest until her case was dismissed last month.
Skepnek wrote in a letter to the former prosecution team on Sept. 28, 2018 — more than four years ago — “We are not hiding any cards. Further delay or procrastination in facing the fact that Dr. Mitchell’s electrical interruption theory smacks more of eye of newt and toe of frog than it does of any recognized theory of neuro-science cannot be legally or ethically justified.” If they continued the prosecution, he wrote, “All that you will succeed in doing is wasting time and resources and keeping an innocent person in jail when it is apparent she has not had a fair trial.”
The prosecution’s new 11-page report is from Dr. Jane Turner, who wrote that she has been a practicing forensic pathologist for more than 20 years and has performed more than 5,000 autopsies, including on hundreds of infants and children. She is co-author of three chapters in a published book on sudden unexplained pediatric deaths.
Turner provided a brief medical history for the boy, including four visits to the doctor for illness in the four months prior to his death. One visit resulted in a diagnosis of an ear infection, and he had a second possible one about two weeks before his death on Sept. 29, 2016.
Her findings regarding the skull fracture were consistent with what the defense expert had said during Buchhorn’s trial — that the injury showed signs of healing, and there were no injuries to the brain commonly associated with a lethal traumatic brain injury.
The report can’t provide definitive answers: Mitchell did not collect cerebrospinal fluid to submit for viral, bacterial and fungal cultures, nor vitreous fluid for electrolyte testing, according to the report, and the autopsy did not include an examination of the inner ear structures. The findings of a cardiac pathologist who examined the boy’s heart were not incorporated into Mitchell’s report.
There was evidence of infection, Turner wrote: a rectal swab viral culture isolated enterovirus, and a nasal swab culture isolated rhinovirus. A blood culture grew streptococcus salivarius, which although normal in the mouth “is not normal in the bloodstream and is considered an opportunistic pathogen.
“In fact, LabCorp personnel treated the culture result as a critical value in calling Ms. Sharon Mandel, investigator, to report it to her,” Turner wrote. “A large study conducted by Morris (2006) on postmortem bacterial cultures in adults, newborns, and infants concluded that a ‘pure growth of a pathogen in blood or CSF should be regarded as a possible contributing factor to death at all ages.'”
The boy also had hyperglycemia — his blood sugar was more than 4 times the normal range, which could have indicated diabetes — and hypothermia at the time of this death, according to the report. It was also possible that he had sepsis, but that could not have been definitively diagnosed, Turner wrote.
“Almost any infection can lead to sepsis, which is the body’s extreme response to an infection,” Turner wrote. “Without timely treatment, sepsis can rapidly lead to tissue damage, organ failure, and death. Newborns, infants, and the elderly are particularly susceptible to developing sepsis. Patients with underlying health problems, such as congenital heart defects or diabetes, are also at higher risk for sepsis.”
The cardiovascular doctor did find a congenital heart defect. The foramen ovale is a hole between the two atrial chambers of the heart that closes soon after birth. If it doesn’t close, it’s called a patent foramen ovale. Turner wrote that it is her opinion that this put the boy at risk for blood clots.
“The autopsy finding of a patent foramen ovale is significant in that this congenital heart defect put Oliver at risk for a lethal arterial stroke,” Turner wrote. “Such a stroke is ischemic and, therefore, undetectable at autopsy when the death is sudden.”
“… One of the greatest — and most common — risks of having a PFO with paradoxical embolism is that blood clots can also travel to blood vessels in the brain, blocking blood flow and causing arterial ischemic stroke; likewise, blood clots can travel to blood vessels in soft tissues and skin and cause injury such as hemorrhage, mimicking bruises,” Turner wrote. “… Notably, acute arterial ischemic stroke cannot be ruled out by autopsy as there are no visible anatomic changes to the brain grossly or microscopically in cases of sudden death; such changes are not apparent for 6 to 12 hours after the insult.”