 Carrody Buchhorn (Photo: Carrody Buchhorn)
On April 14, 2017, Buchhorn was charged with first-degree murder—or in the alternative—second-degree murder.
The charge was based on the conclusion of the Douglas County Coroner, Dr. Erik Mitchell, that Oliver had died from a blow to the head.
At a preliminary hearing, Dr. Mitchell testified that Oliver had a skull fracture. However, there was no brain swelling, which would typically accompany such an injury. Dr. Mitchell testified that Oliver had died instantly following a blow to the head, which he claimed released mechanical energy into the base of the brain causing “temporary cessation of function at the base of the brain” or “depolarization of neurons.” Dr. Mitchell suspected that the baby had been stepped on.
He said he believed, “going on statistics,” that Oliver died instantaneously due to “a direct effect on depolarization of neurons at the area of the base of the brain, upper spinal cord manila, [which] interferes with the ability to breathe, and that leads to death.” He concluded Oliver had no “anatomic deformity or no anatomic reason to be dead other than the physical injury, and that this physical injury will release energy into the area that is critical for survival at the base of the brain.”
In July 2018, Buchhorn went to trial in Douglas County District Court. Dr. Mitchell testified that there was not much time between the trauma which caused the skull fracture and Oliver’s death. Since Buchhorn was the last person to care for Oliver, she had to have been responsible, Dr. Mitchell testified.
The prosecution also presented text messages that Buchhorn had sent prior to Oliver’s death. In the messages, Buchhorn complained about her low pay and disparaged the daycare center owner’s attitude.
Dr. Carl Wigren, a forensic pathologist from Seattle, Washington, testified for the defense. Dr. Wigren did not address the depolarization theory. Instead, he said he believed Oliver’s skull fracture showed signs of healing from an injury that occurred anywhere from a few days to a week earlier. But when asked if he knew what killed Oliver, Dr. Wigren replied, “I honestly don’t know.”
On July 26, 2018, after two days of deliberation, the jury convicted Buchhorn of second-degree murder. She was sentenced to 10 years and three months in prison.
During a hearing on a post-trial motion for a new trial, Buchhorn, represented by a new legal team headed by attorney William Skepnek, sought to debunk Dr. Mitchell’s depolarization theory and contended that her trial defense lawyers had provided an inadequate legal defense.
Dr. Sudha Kessler, a licensed physician and board-certified pediatric neurologist at the University of Pennsylvania Children’s Hospital in Philadelphia, testified that Dr. Mitchell's depolarization theory was unreliable. She testified that some energy, such as electrical or electromagnetic, can impact the signals of the brain cells, but not kinetic or mechanical energy, such as a force from a blow to the head. Dr. Kessler was “not aware of any circumstances in which mechanical energy directly translates into electrical change in the brain.”
Dr. Kessler said she had never heard or read about a brain death with no evidence of brain injury. Dr. Kessler said she had reviewed texts, published studies, and other sources of medical research, but she found no support for the proposition that mechanical energy can depolarize, interfere with, or disrupt the brain cells or nerves and cause instant death, without causing injury to the brain. Dr. Kessler also reviewed literature Dr. Mitchell had produced after the trial. She said she did not believe it supported Dr. Mitchell's theory.
Dr. Kessler called Dr. Mitchell’s theory “just fantastical, because it's not something I have ever been taught, not something I teach, not something—just not consistent. It's not consistent with the medical literature because there is no literature on magical disruption of the brain that causes death and that doesn't exist. In addition to looking through my own textbooks, looking through the two database searches I did, I was so taken aback by all this that I ... [asked] my colleagues if they have heard of this idea; and honestly, most of the time, the response that I got was laughter.”
Dr. Yu-Tze Ng, the Chief of Neurology at Children's Hospital in San Antonio, Texas, and a tenured pediatrics professor at Baylor College of Medicine in Houston, testified that he did not like using the term “depolarization” because that was something that happened normally. Dr. Ng also said he believed Dr. Mitchell was trying to imply a sudden cessation of the whole brain.
Dr. Ng stated: “[W]hether it's from depolarization, which is some function, [a sudden cessation of the whole brain] is just not possible without any evidence that there was some brain injury that would persist, short of completely beheading the patient or cutting, disconnecting the upper brain stem, the medulla and all those brain parts to the spinal cord. I just can't fathom how a patient would have died with no evidence whatsoever [of brain injury].”
Dr. Ng testified that Dr. Mitchell's theory diverged from medical science. Dr. Ng said the articles Dr. Mitchell provided to support his theory actually contradicted Dr. Mitchell's claims. Dr. Ng stated that he did not know how Oliver died, but, based on the evidence, Oliver did not die from a brain injury.
Dr. Wigren also testified at the post trial hearing. He stated he had not known Dr. Mitchell would present his theory of depolarization or that the theory would be such a pivotal part of the case. Dr. Wigren said that in all his communications with the trial defense lawyers, he was never asked to address Dr. Mitchell's opinion—even during the trial. Dr. Wigren testified that if the trial defense lawyers had asked about the viability of Dr. Mitchell's theory, he would have written a supplemental report and recommended they consult with a neurologist. Dr. Wigren also stated he had never heard of Dr. Mitchell’s theory and that he had been unable to find any authoritative medical literature to support it.
Dr. Mitchell testified for prosecution at the post- trial hearing and doubled down on his theory, although he admitted that Oliver’s case was the exception, rather than the rule, because most head trauma cases included observable injury. When asked about the statistics on which he relied to support his theory, Dr. Mitchell testified he was thinking of the transfer of energy to the brain which occurs in all brain injuries. He admitted he would probably change how he used the word “statistics” in his testimony. He also testified that his use of the word statistics was his attempt to convey a likelihood, not to suggest he had actual statistical information, and that “it was a poor choice of words in retrospect.”
Dr. Mitchell testified he had observed two cases in which immediate death occurred after a concussive injury to the brain stem, and, in both cases, neither victim had any sign of significant brain injury. He testified one of those cases occurred in 1980, during his residency in North Carolina, and the other occurred in the early 1980s or 1990s in New York. He had no records on these cases and had made no effort to find them.
Dr. Mitchell also testified that he had done about 12,000 autopsies during his nearly 40-year career. He admitted on cross-examination that two cases out of 12,000 is “a very small number.” When asked about the materials he relied on to support his theory of depolarization, Dr. Mitchell admitted his materials did not provide any studies of people who died after suffering blunt force trauma in which there was no evidence of injury to the brain. He acknowledged that much of the literature he had provided dealt with general neurological principles and not the exact issue of instantaneous death from concussive force.
Alice Craig, a professor at the University of Kansas School of Law and attorney at the Paul E. Wilson Project for Innocence & Post-Conviction Remedies, testified for Buchhorn that her trial defense lawyers had violated the professional standard of care by failing to file a pretrial motion to exclude Dr. Mitchell's testimony and discover the scientific and factual basis for his depolarization theory.
Craig testified that Dr. Mitchell's preliminary hearing testimony raised enough questions about the science behind the cause of Oliver's death and the basis for Dr. Mitchell's theory that counsel should have filed a motion for a hearing pursuant to the 1992 U.S. Supreme Court decision in Daubert v. Merrell Dow Pharmaceuticals to challenge the validity of Dr. Mitchell’s theory.
Craig also testified that the trial defense lawyers could not effectively cross-examine Dr. Mitchell or exclude his testimony without the right experts. She said she believed a neurologist was necessary, not a pathologist. Craig also criticized the defense for failing to ask Dr. Wigren specifically about Dr. Mitchell's theory.
Attorneys Paul Morrison and Veronica Dersch, who had represented Buchhorn at the trial, testified during the hearing. Morrison admitted they had not consulted with or talked to any experts other than Dr. Wigren. Morrison testified he was “comfortable that [Dr.] Wigren could handle it,” and “we took our direction from him.”
Morrison also testified both he and Dersch were frustrated with how difficult it was to get ahold of Dr. Wigren and how busy he was.
Morrison admitted he never considered filing a Daubert motion, and, in fact, both he and Dersch admitted they had never filed a Daubert motion in any of their previous cases. Morrison testified they relied on Dr. Wigren to tell them if they needed to file a Daubert motion. Morrison said he regretted not filing such a motion, and Dersch agreed. She said she never considered such a motion—it was never discussed.
The lawyers had never met Dr. Wigren in person until after the trial had begun—in fact, the night before he testified. During this meeting, Dr. Wigren asked the defense lawyers if they had hired a biomechanical engineer to testify, and Morrison replied. “It’s a little late, Doc.”
Morrison admitted that Dr. Wigren had told them he thought Dr. Mitchell’s theory was “nonsense,” but he never asked Wigren to give his opinion.
Judge Sally Pokorny, who had presided over Buchhorn’s trial, denied the motion for a new trial. Judge Pokorny ruled the defense was not ineffective for failing to request a Daubert hearing because Judge Pokorny said she would have denied a motion to exclude Dr. Mitchell's testimony. The court ruled that the defense had acted appropriately by hiring Dr. Wigren because Wigren's theory on cause of death directly contradicted the prosecution's theory. Judge Pokorny also dismissed Craig's testimony, ruling that Craig relied on the incorrect assumption that the trial defense lawyers would have been able to exclude Dr. Mitchell's testimony. The court characterized Craig’s testimony as hindsight.
In August 2021, the Kansas Court of Appeals reversed Judge Pokorny, vacated Buchhorn’s conviction, and ordered a new trial.
“We reverse Buchhorn’s conviction and remand for a new trial because her trial counsel's constitutionally defective performance prejudiced her right to a fair trial,” the court declared.
The court cited the defense failure to investigate Dr. Mitchell’s theory, which the court noted was “the linchpin that tied Buchhorn to [Oliver’s] death. This observation is not hindsight; it stems from information counsel knew before trial. Yet Buchhorn’s counsel admit they did not independently research or investigate his theory.”
The court noted that communication between the defense lawyers and Dr. Wigren “broke down. The lawyers expected Dr. Wigren to tell them everything they needed to know about [Oliver’s] death and Dr. Mitchell’s theory on causation. Dr. Wigren, however, apparently understood his engagement far more narrowly.”
The court noted that the defense team had blamed Dr. Wigren for not telling them that Dr. Mitchell’s theory was unsupported and for telling them too late they should hire other experts. “There is a difference between relying on an expert and scapegoating one,” the court said. “It was unreasonable for counsel to expect Dr. Wigren to provide this guidance when they failed to request it.”
The appeals court also criticized Judge Pokorny for remarks made at the close of jury orientation at the beginning of the trial:
“Okay. Anybody ever been at Thanksgiving dinner and your crotchety old uncle says, ‘I just don't understand why the defendants have all the rights and victims have none?’ Anybody ever heard anybody made those statements? I see people smiling and won't admit it, but they have heard it. Anybody know why we are set up that way? Well, because the people who wrote our Constitution were criminals. They had been charged with treason; and if they had been found guilty, they would have been hanged to death, and they wrote our Constitution in a way that they would have wanted to be protected when they went to trial.”
The defense had not objected to the remarks. Buchhorn’s appellate lawyers contended the remarks were factually inaccurate and were judicial misconduct.
The appeals court declared, “Frankly, we fail to see the purpose of these remarks, which neither assist the prospective jurors in understanding what will be expected of them if they are chosen to serve nor impart to them some legal principle applicable to the criminal justice process….In short, the trial judge’s remarks were imprudent and should not have been made.”
The court noted that it was “not an easy decision to grant a new trial to someone who has been convicted of killing another human being. But more important than the severity of the crime is the fundamental principle of American law—all accused must receive a fair trial, even those accused of killing a child.”
Buchhorn was released on bond to home confinement on August 27, 2021.
The prosecution sought to appeal to the Kansas Supreme Court. The reversal remained undisturbed in August 2022 when the court voted 3 to 3 on whether to reverse the appeals court. One of the justices had recused himself from the case because he had previously represented Buchhorn. In a two-page decision, the court said, “When one of the justices is disqualified to participate in a decision of the issues raised in an appeal or petition for review, and the remaining six justices are equally divided as to the proper disposition of the issues on appeal or review, the judgment of the court from which the appeal or petition for review is made must stand.”
On December 2, 2022, the prosecution reported to Judge Pokorny that it had retained new experts and expected to have their reports by December 16.
On that day, when the state did not have those reports in hand, Judge Pokorny dismissed the case. The dismissal order said, “The State has been on notice for over a year [that] they have the burden to find a forensic pathologist to review the evidence and submit a report on the cause of death.”
On January 4, District Attorney Suzanne Valdez issued a statement saying that the state would no longer pursue the case based on a report received on January 3, 2023 from Dr. Jane Turner, a forensic pathologist.
The report concluded that Oliver “died from natural disease and pathophysiologic processes unrelated to child abuse. Specifically, Oliver had congenital heart disease…that put him at risk for blood clots to travel from the right side of the heart to the left side of the heart to cause injury by blocking blood flow in the coronary arteries, resulting in myocardial infarction.”
Dr. Turner said the skull fracture “pre-existed” Oliver’s illness and “was non-lethal.”
Valdez said in her statement that after reading Dr. Turner’s report “I have concluded that at this time, we do not have sufficient evidence to proceed with the prosecution of Ms. Buchhorn.”
– Maurice Possley
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