Kansas Supreme Court justice: Murder case against day care worker relied on ‘just bunk’
It was Kansas Supreme Court Justice Eric Rosen who asked the question of the day at a hearing on whether former Eudora day care worker Carrody Buchhorn a) should be sent back to prison, b) should be free to get on with her life after five Kafkaesque years, or c) should again stand trial on charges that she murdered a baby in her care.
“I just do not recall,” Rosen said, “where there’s been a coroner’s determination of a cause of death that is testified to and that is the basis for the cause of death in a homicide case that isn’t right. That is just bunk. I don’t recall that ever happening. What do you have to say about that, as a representative of the state?”
The representative of the state, Deputy Solicitor General Kristafer Ailslieger, defended the bunk, as best he could.
He began his oral argument last Wednesday by saying that he felt a little “like a relief pitcher asked to come in in the ninth inning” by the Douglas County district attorney’s office, who’d “asked our office to take over, for various reasons.”
Yet he still argued, with more passion than precision, that Buchhorn’s conviction, which the Kansas Court of Appeals overturned last August, should be reinstated. The appeals court found that Buchhorn’s original defense team had deprived her of a fair trial by failing to challenge the utter nonsense sworn to in court by medical examiner Erik K. Mitchell. As I’ve written before, Mitchell has a long history of getting it wrong, and yet has just kept on testifying.
“I’m not sure that it’s bunk,” Ailslieger said in answer to Rosen’s question about Mitchell’s out-of-nowhere conclusion that 9-month-old Oliver Ortiz died of a “depolarization of neurons in the base of the brain” on Sept. 29, 2016.
Mitchell testified that Buchhorn must have stomped on the child’s head, somehow killing him instantly without causing any brain injuries. And no, that does not happen.
Some of the country’s leading pediatric neurologists called this conclusion “just fantastical,” “magical,” “made up,” and based on science that “doesn’t exist.”
“Even Dr. Mitchell says there’s no support for the theory,” Rosen said.
“There’s always no support for a theory initially,” answered Ailslieger, who if he really had been sent in for the save in the ninth inning, was pitching more like Mitch “Wild Thing” Williams on his worst day than like Dan Quisenberry on his best.
“All theories start somewhere,” he went on. “You know, Galileo had a theory that everybody thought was nonsense at one point in time. So maybe Dr. Mitchell knows what he’s talking about.”
If anything, Galileo had more in common with Buchhorn — one thing, anyway — since both spent way too much time under house arrest. She’s been at home in an ankle bracelet since her conviction was overturned last year.
Dead baby means ‘someone’s going to pay’
Paul Morrison, the former Johnson County district attorney and state attorney general who was Buchhorn’s original defense attorney, told me months ago that he did try to go after Mitchell, for example by noting that the coroner had come to Buchhorn’s probable cause hearing with the wrong case file, and then had started testifying about someone else’s X-ray.
But “when you’ve got a dead baby, someone’s going to pay,” Morrison said. “And Erik Mitchell’s machinations helped.”
On that point, he’s absolutely right. Buchhorn became that someone because she was there when Ortiz died: It was Buchhorn who’d put him down for his nap, and Buchhorn who’d dropped to her knees and given him mouth-to-mouth resuscitation for 35 minutes after she was unable to wake him.
Ailslieger seemed to argue that because this was the famous Paul Morrison we were talking about, he couldn’t have been deficient under the law in defending Buchhorn. “He’s tried more homicide cases than I have fingers and toes,” he said. He stood up for Mitchell on the same grounds: “Dr. Mitchell has been a long experienced coroner.”
That long experience includes mistakes, testimony that evolved dramatically, and that in one case he admitted was based in part on what he’d heard from police about a suspect’s alibi. For the 10 years before arriving in Kansas in 1994, Mitchell was the chief medical examiner for Onondaga County, New York, where an investigation by the district attorney’s office found that he had overstepped his authority and mismanaged his office.
Mitchell resigned rather than be fired, and the DA agreed not to pursue criminal charges. An Associated Press story at the time said the pathologist had “routinely removed organs from corpses without the consent of the victims’ families and improperly stored skeletons and body parts in his office.” The investigation started after officials learned that a man convicted on child porn charges had a photo taken of himself with a corpse in Mitchell’s custody, and that morgue employees had taken pictures of themselves in “playful poses” over the corpse of a female suicide victim.
In the Buchhorn case, Mitchell testified that “the most likely — and I am going on statistics here — the most likely mechanism here is that we have a direct effect on depolarization of neurons in the base of the brain, upper spinal cord medulla interferes with the ability to breathe, and that leads to death.”
After Buchhorn was convicted, he admitted, again under oath, that there were no such statistics. But instead of pursuing perjury charges, Douglas County DA Suzanne Valdez has signaled that she intends to try Buchhorn all over again on the basis of Mitchell’s highly creative theory that “depolarization” somehow killed the child without injuring his brain.
Child had older skull fracture that was healing
At Buchhorn’s 2018 trial, the defense team’s expert witness testified that he couldn’t really say how Ortiz had died.
At last week’s oral arguments, Justice Caleb Stegall asked Ailslieger whether Morrison had ever asked that expert, Dr. Carl Wigren, in front of the jury, whether Mitchell was “full of it” or “doesn’t know what he’s talking about.” No, Ailslieger said, “not in that type of language.”
What Wigren did say on the stand was that Buchhorn could not have killed the child, because the baby’s injury was an older, hairline skull fracture that was already showing signs of healing when the child died.
In court, Morrison never asked him to weigh in on Mitchell’s explanation, and did not even object when Mitchell theatrically stomped on a CPR doll to show the jury how he thought Buchhorn must have killed the baby.
And for the record, Ailslieger is not even right about Galileo.
When the Italian astronomer confirmed the Copernican view that the Earth revolves around the sun, it was not so much that “everyone” thought it was nonsense as that Galileo had made the politically fatal error of mocking his patron, Pope Urban VIII, the longtime friend with whom he had discussed his work for years.
One of Galileo’s innovations was inventing not the first telescope, but one so strong that he could see the moons of Jupiter through it, along with the phases of Venus, and sunspots. He could see with his own eyes that the planets do not rotate around the Earth, but around the sun.
There are no moons of Jupiter to Mitchell’s credit, nor any other evidence that he wasn’t, as the appeals court ruled, just making stuff up.
That Mitchell’s testimony was as flimsy as the case against Galileo doesn’t necessarily mean the court will reverse the district court’s post-conviction ruling on the admissibility of Mitchell’s testimony.
Justice Dan Biles kept returning to the question of how the child did die. Like the jury, he didn’t seem to accept the answer that sometimes, there is no answer.
Mitchell’s fanciful explanation is all the state has got against a 47-year-old Army wife, volunteer and mom of two grown sons with no history of violence and a long history of being beloved by both babies and their parents.
And for the sake of both a wrongly convicted woman and the grieving family whose loss was not lightened because Buchhorn has already spent years in prison for something she didn’t do, I hope we don’t have to watch Mitchell tell his tale again.
This story was originally published April 4, 2022 at 5:00 AM.
