Attorneys have alleged in a wrongful conviction case that the Douglas County district attorney and her legal counsel falsely asserted that a murder investigation was ongoing in order to delay proceedings and withhold documents.
A jury in 2018 found Carrody Buchhorn guilty of reckless second-degree murder of a 9-month-old boy who had been in her care at a Eudora day care. The Kansas Court of Appeals overturned the conviction in April 2021 largely because Buchhorn’s trial attorneys had failed to challenge coroner Dr. Erik Mitchell’s theory of how the boy died, which top pediatric neurologists called “absolutely false,” “made up” and “fantastical.”
DA Suzanne Valdez’s office continued to prosecute the case, however, until a judge dismissed it in December 2022 because prosecutors had failed to seek a new expert opinion in time.
The DA’s office pledged to appeal the dismissal but announced in January 2023 that their new expert pathologist’s report found that the boy had died from a heart defect and other natural conditions. The DA’s office’s press release stated that they did not have sufficient evidence to continue prosecution. (Read more background on the case at the links below.)
Buchhorn in February 2023 filed a wrongful conviction lawsuit. Altogether, Buchhorn spent more than 5 1/2 years in custody of the Douglas County jail, Topeka prison and on house arrest before her case was dismissed.
The lawsuit seeks, as outlined by state statute, about $369,000 in total damages for Buchhorn’s time in custody; attorneys’ fees of $25,000; counseling; tuition assistance; state health care; a certificate of innocence; an order expunging and purging her conviction and any other relief to which she’s entitled.
The civil case has dragged on with motions, discovery and legal arguments, including the state’s accidental disclosure of some portion of 50,000-plus pages of discovery that they did not intend to disclose.
In a hearing on March 11, attorney Holly Dyer, representing the DA’s office and then-Deputy DA Joshua Seiden, told the judge that there was a need to reinvestigate the criminal case, and keep the case open “because Mr. (Bill) Skepnek filed this lawsuit.”
“There has been developed additional information that has caused the district attorney to classify this case as an ongoing investigation, meaning that there is the potential that charges could be refiled,” Dyer said.
Neither Dyer nor court documents elaborated on what “new evidence” had been developed in the case.
Skepnek, who represented Buchhorn for her appeal and now for her civil case, and co-counsel Quentin Templeton wrote in a motion filed Monday that Valdez answered in her deposition on May 22 — over objections from her attorney, Gregory Goheen, and Assistant Kansas Attorney General Shon Quolseth — that there was no ongoing investigation.
“Asked if the repeated representations to the Court of an active investigation were true, Ms. Valdez to her credit truthfully testified that they were false,” the motion states.
The motion alleges that this was willful improper conduct and intentional lies made to the court in order to gain an advantage in the litigation.
“They were offered to deceive the Court into making the rulings which could not, and knowingly were not, supported by the truth,” the motion states.
It also calls it an attempt to “extort Mrs. Buchhorn, by pressuring her with the threat of criminal prosecution” for pursuing the case against the state.
Attorneys had also instructed Seiden not to answer questions during his deposition regarding anything that had occurred after the DA’s office issued its Jan. 4, 2023 press release sharing the new expert pathologist’s findings, according to the motion.
The motion alleges that in searching for documents responsive to the case, the DA’s office conducted a keyword search of three of then-current employees’ email accounts, but did not search the email accounts of the former prosecutors who had handled the 2018 jury trial. It asks for all relevant documents in the DA’s office’s possession, unencumbered by limits on the searches, and then for Buchhorn be allowed to retake all depositions in the case “in light of the improperly withheld documents.”
The motion seeks an order overruling a “confidentiality” designation of Seiden’s deposition as well as any protectable “confidentiality” held by the DA’s office. “Because there is no active investigation, there is no need for confidentiality,” the motion states.
“For years, the State — including Ms. Valdez, Mr. Seiden, and the State — have publicly, in statements made both in and out of court, claimed Mrs. Buchhorn murdered a baby,” the motion states.
“… But when it’s time for Mrs. Buchhorn to present the exonerating evidence that she is innocent and expose the lies that the State has told, and continues to tell, about her, Ms. Dyer jumps up and down about ‘confidentiality.’ The simple reality is that they want their cake and to eat it too.”
The motion asks the court for an order sanctioning the DA’s office, Valdez, Seiden, Dyer and Goheen for “causing unnecessary delay, needlessly increasing the costs of litigation, making claims not warranted by existing law, and making factual contentions that lack any evidentiary support.”
The motion asks for a disgorgement — a return of profits from unethical conduct — of legal fees paid to Dyer, Goheen and their firms, and for those funds to be paid to Buchhorn and counsel.
And ultimately, the motion asks the court to grant a default judgment in Buchhorn’s favor, prohibiting the state from opposing her claims of innocence and finding her innocent.
The DA’s office initially declined to comment for this article. But in an email sent moments before publication, Cheryl Cadue, a spokesperson for the DA’s office, said that “Based on the expert report obtained by the Attorney General’s Office to defend the wrongful conviction civil case, Ollie’s death is a homicide. The case remains open.”
Danedri Herbert, a spokesperson for the Kansas attorney general’s office, said in an email Tuesday that “We plan on filing a response that refutes many of the allegations in the motion.” Goheen and Dyer had not yet responded to an email seeking comment for this article at publication time.
The full motion is below (click here to open it in a new tab). Online court records indicate the next hearing in the case is set for 1:30 p.m. August 19.
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Mackenzie Clark (she/her), reporter/founder of The Lawrence Times, can be reached at mclark (at) lawrencekstimes (dot) com. Read more of her work for the Times here. Check out her staff bio here.
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