GIST: Since January, we’ve known that 48-year-old Carrody Buchhorn, an Army wife, mom of two sons and former day care worker in Eudora, Kansas, spent 3 ½ years behind bars and another 2 ½ years on house arrest for a murder that never happened.
Let no one ever say that Douglas County District Attorney Suzanne Valdez, who inherited the case from her predecessor, Charles Branson, gave up on retrying Buchhorn without a fight.
Only, she never found an expert who would get on the stand and say that Buchhorn or anyone else had killed 9-month-old Oliver Ortiz, who never woke up from his nap at the Sunshine Kids Daycare on Sept. 29, 2016.
In January, Dr. Jane Turner, the forensic pathologist Valdez had hired to review the case, reported back that Ortiz had died of natural causes — a congenital heart defect.
The child had a hole in his heart.
As it happens, though, this was information that prosecutors could and should have had in their possession all along.
And yet, the state is fighting it still.
Turner based her conclusions in large part on an Oct. 4, 2016, report written by Dr. Shannon Mackey-Bojack, a cardiac pathologist in St. Paul, Minnesota, where the boy’s heart had been shipped immediately after his death, because his heart valves were being donated.
The state’s star witness at Buchhorn’s 2018 trial, longtime Kansas coroner Erik K. Mitchell, testified that he had indeed received the heart pathology report from the transplant team in Minnesota.
But when Mitchell then said under oath that Ollie’s heart was perfectly normal, that was false. In fact, the report said just the opposite.
A member of the prosecution team said they never saw the heart pathology report that Mitchell suggested on the stand that he had read and taken into account: “We absolutely did not have some report that said there was a problem with the heart.”
Under oath, Mitchell explained that “I get a report from them” — the Midwest Transplant Network — along with slides and heart tissue, and “that is all available for review.”
Then, he testified that his conclusion, based on all of the information available to him, was this: “This child has a normal heart.” Oliver Ortiz, he told the court, “just does not have any disease process to explain death. This child dies of trauma.”
The member of the prosecution team said no one on his side concluded from Mitchell’s testimony that there even was a formal report from doctors in Minnesota, which is why the report was never shared with the defense team. “We thought he had talked to them and everything was fine. We thought he had followed up on it.” But he hadn’t. Or did, and then nonetheless ignored what Dr. Mackey-Bojack had found.
Prosecutors also believed that Mitchell was basing his testimony that the child’s heart was perfectly normal on his own observation, but he wasn’t and couldn’t have.
This isn’t all on Mitchell, either; with a woman’s freedom on the line, prosecutors should have asked to see some documentation that their most important witness really had followed up instead of making it up.
A postmortem report concluded that Oliver Ortiz’s heart had a hole in it.
Dr. Turner’s report about postmortem lab tests and Dr. Mackey-Bojack’s examination is both clear and crucial to understanding what did and did not cause the baby’s death: “The examination found a patent foramen ovale. The foramen ovale (a hole between the two atrial chambers of the heart) is a normal part of fetal anatomy; the hole closes soon after birth. Persistence of the hole (known as patent foramen ovale, or PFO) beyond the newborn age is considered a congenital heart defect.”
“The cardiac examination also significantly found an area of acute ischemia (myocardial infarct) of the anterior wall of the left ventricle.”
This is evidence of heart damage caused by a lack of oxygen because of a heart attack or stroke.
“In other words, the pathology of the heart indicates that Oliver had pathophysiologic processes taking place 12-24 hours prior to his death.
The most common cause of myocardial infarction in infants is paradoxical embolism resulting in occlusion of a coronary vessel; the most common cause of paradoxical embolism is patent foramen ovale.”
“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. … The findings of myocardial infarction and hemorrhage of the carotid artery sheath are evidence of paradoxical embolization from the PFO; involvement of the carotid artery indicates embolization of blood clots from the heart to the head and brain.”
Mitchell’s autopsy, conducted on Sept. 30, 2016, when most of the child’s heart was no longer in his possession, goes into great detail about the ordinariness of the organ.
But then, from Mitchell’s lab in Kansas City, Kansas, he couldn’t see Ollie’s heart in St. Paul, Minnesota very clearly, could he?
The member of the prosecution team said they thought that Mitchell, in overseeing the removal of the child’s heart immediately after his death, must have seen that it was fine. But there was no autopsy done on the heart that day. Whatever he was able to see was extremely incomplete, and he never revised what he wrote on Sept. 30 after receiving the Oct. 4 report.
Whether Mitchell gave false testimony to help prosecutors or to cover up the fact that he hadn’t bothered to read the pathology report from Minnesota, I have no idea.
Once again, he did not respond to my detailed messages.
In August 2021, the Kansas Court of Appeals overturned Buchhorn’s conviction, ruling that she might not have been convicted if her original defense team had challenged Mitchell’s equally made-up theory about how Ollie did die.
It’s not hard to imagine that there would in that case have been no trial at all, since Judge Sally Pokorny said in open court that she was holding Buchhorn over for trial squarely on the basis of Mitchell’s testimony at Buchhorn’s probable cause hearing.
“Based much upon Dr. Mitchell’s testimony of what is the most reasonable explanation for what happened,” Pokorny said, “there is absolutely no evidence that there was anybody else who, in the very short time period that this child, from the time he was injured until he would have died, all that evidence at this point points to Ms. Buchhorn, so I do bind her over for a jury trial on Count 1, which is murder in the first degree.”
The defense does seem to have slept through the trial. But prosecutors failed to do their job, too, ignoring not just available medical information but Mitchell’s long and well documented history of getting it wrong, always in the state’s favor.
Mitchell’s problems with the truth have extended from the very beginning of his career to the current case of Chris Lyman, who was convicted of killing his infant nephew after Mitchell said he’d clearly beaten him, causing a “massive subdural hematoma” that is actually smaller than a dime.
Three other experts have since testified that the child died of acute pneumonia and lung disease.
For the 10 years before Mitchell arrived in Kansas in 1994, he was the chief medical examiner for Onondaga County, New York, where the DA agreed not to pursue criminal charges against him after Mitchell agreed to resign rather than be fired.
An Associated Press story at the time said Mitchell 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.
Morgue employees had also taken pictures of themselves in “playful poses” over the corpse of a female suicide victim.
And while the DA was investigating Mitchell, the coroner helpfully changed his mind about his findings in a murder case against a man named Hector Rivas.
Initially, Mitchell had said that the victim, Rivas’ ex-girlfriend, Valerie Hill, had been killed on a Saturday night or Sunday morning of the weekend she died in March of 1987.
Only, Rivas had an alibi for that time period.
When the DA reopened what had been a cold case, however, Mitchell reconsidered, and said that Hill might actually have been killed as early as Friday evening, when Rivas had no alibi.
It was as a result, an appellate court later found, that Rivas was convicted in 1993 and spent the rest of his life behind bars.
He died there, in 2016, still waiting for the new trial that he’d been owed since his conviction was reversed by the federal Second Circuit Court of Appeals the previous year.
When I first wrote about Buchhorn, in August and again in September of 2021, shortly after her second-degree murder conviction was overturned, I said DA Valdez would be wrong to retry someone who’d only been found guilty of murder because Mitchell had gotten away with murder on the witness stand.
Mitchell invented a cause of death for Oliver Ortiz, the depolarization of neurons, that no one else had ever heard of.
And with considerable dramatic flair, he demonstrated for the jury how Buchhorn must have stomped on the baby’s head, though the child had no brain injury. He 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.”
The defense team, led by former Johnson County District Attorney and former Kansas Attorney General Paul Morrison, failed to counter this novel view.
But on appeal, experts said Mitchell’s theory was gibberish. Dr. Yu-Tze Ng, former chief of pediatric neurology at the Children’s Hospital of San Antonio and former professor of pediatric neurology at Baylor College of Medicine, called it unknown to medical science.
A pediatric neurologist from University of Pennsylvania Children’s Hospital, Sudha Kessler, said it was “just fantastical.” “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,” Kessler testified.
The statistics Mitchell mentioned do not exist, either, as he himself later acknowledged.
Morrison didn’t even object when Mitchell hopped on that CPR doll, and he should have.
But at least in theory, prosecutors also have a duty not to win a conviction, but to win the right outcome.
It was 16 months later — months Buchhorn spent on house arrest, just as she had spent the months before her trial — that Valdez finally announced, with deep regret, that she would “cease prosecution” of Buchhorn because her own expert, Dr. Turner, had found that Ortiz had “died from natural disease and pathophysiological processes unrelated to child abuse.”
In her news release announcing this, Valdez suggested, without spelling out why, that she still believed Buchhorn guilty.
And she congratulated herself at some length for holding her office to such a superior standard that she would not pursue a case she couldn’t win. “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 said in that news release.
Last week, the DA’s office did answer my message asking whether the only such evidence was Children’s Mercy Hospital’s child abuse specialist Dr. Terra Frazier’s opinion, offered in December of 2022, that Buchhorn must have abused the boy, and caused his hairline skull fracture.
But the DA’s office answered by sending me another copy of the January news release.
I know of no other finding that would support prosecution, and believe that if there is any, Valdez should make it public.
Otherwise, she should stop implying that Buchhorn is guilty.
Two other doctors — Turner, the pathologist Valdez hired, and Dr. Carl Wigren, the forensic pathologist from Seattle who testified for the defense at Buchhorn’s trial — both said Oliver’s skull fracture showed signs of healing.
They said this was a preexisting injury that had occurred anywhere from a few days to a week earlier, and they did not see it as evidence of abuse.
So after all of the falsehoods and failures that resulted in Carrody Buchhorn’s conviction, is the state trying to make up for the wrong done to this woman, whose life, health, family and finances will never be the same?
No, just the opposite.
She is seeking $65,000 for each year of wrongful conviction and imprisonment, as allowed under Kansas law.
But the Kansas AG’s office said recently that it does not consider Buchhorn wrongly convicted at all, and will oppose her compensation by the state.
Shon Qualseth, the assistant attorney general who responded to Buchhorn in court, did not answer my messages asking why the state is fighting her formal exoneration.
This week, Qualseth asked for time to find new experts to further review the cause of death, and Chief Judge James McCabria gave the state until Sept. 1 to find these experts.
They won’t find a different cause of death, but will succeed in extending Buchhorn’s nightmare, and in delaying any acknowledgment that prosecutors were wrong.
Testing by Marilyn Hutchinson, the Kansas City psychologist hired by the original defense team, found Buchhorn highly unlikely ever to intentionally harm a child.
And common sense says that a mom in her 40s with no history of criminal behavior or mental illness is not, as the prosecution’s theory had it, going to jump up and down on a child’s head out of nowhere one day because she was mad at her boss, found Ollie fussy — “pissy,” she once told a friend — and thought she should be better paid.
But even more to the point, since Buchhorn was convicted of murder, and there was no murder, how was she not wrongly convicted?
It was on Buchhorn’s way home from Ollie’s funeral, when she stopped by the Eudora Police Department to pick up her phone, as requested, that detectives started treating her like a criminal, she told me two years ago.
Suddenly, police investigators with whom the Buchhorns had always been friendly in their small town “were calling me terrible names and saying I was fake crying. I’d say, ‘Oh, my God,’ and they’d say, ‘He isn’t going to help you now.’ ”
They also spoke to her with great reverence about a Dr. Mitchell, who they said had found the death suspicious and believed her responsible.
“They told me Dr. Mitchell was on this and he was the best person we know.”
When she told them she hadn’t and would never have hurt the child, their angry response, as she remembers it, was, ‘Are you calling Dr. Mitchell a liar?’ ’’ Someone should have.
Erik Mitchell’s testimony about “depolarization of neurons in the base of the brain” is nonsense, according to medical experts.\
When Valdez announced that she wouldn’t retry the case, she wrote, “As I campaigned for this office, my core message was ‘Setting a Higher Standard.’ 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. … I chose not to use Dr. Mitchell as a witness of any sort due to his questionable professional reputation.”
It wasn’t until October of last year that Valdez told the court she would not call him.
Even then, she continued to rely on his theory of the cause of Ollie’s death in her court filings; there was never any other finding that this was a homicide.
Last April, at a hearing before the Kansas Supreme Court, Deputy Solicitor General Kristafer Ailslieger began his oral argument by saying that he felt “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.”
“I just do not recall,” Kansas Supreme Court Justice Eric Rosen told Ailslieger that day, “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?”
“I’m not sure that it’s bunk,” said Valdez’s relief pitcher. “Even Dr. Mitchell says there’s no support for the theory,” Rosen told him. “There’s always no support for a theory initially,” answered Ailslieger, “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.”
Even when Valdez said she was dropping the case, she still seemed to see the only just outcome as Buchhorn’s conviction and imprisonment, facts be damned.
“In the interest of justice,” she wrote, “my administration aggressively litigated this matter to the extent of our abilities despite unfavorable rulings in the district court, the Court of Appeals, and the Kansas Supreme Court.”
I don’t doubt her commitment, but did she never consider that there was a reason for all of those rulings? “Until we received the report from our retained forensic pathologist,” she continued, “we had no reason to doubt that we had sufficient evidence to proceed with the retrial of Ms. Buchhorn. After all, she was convicted by a jury of her peers in 2018 and none of the evidence produced at that trial had been ruled inadmissible at her retrial.”
Inadmissible, no. Demonstrably incorrect, yes.
A man who sat on that jury of Buchhorn’s peers and now thinks they reached the wrong conclusion told me that “what convinced most people was the old man who was a medical expert, who turned out to be a fraud,” according to what he read later.
“I wish more of us had questioned the old man, and it would have been a different verdict,” said the juror, who spoke to me on the condition that I not use his name because “I don’t want the headaches” of being asked about it by everyone he knows.
“It was a horrible two weeks.” “If we’d heard about any of the funny stuff” about Mitchell, now 72, the juror said, “it would have been a different result. But he just seemed like this wise old father, knowledgeable about his area. Her attorneys did a really poor job of defending her, and two or three personalities on the jury” — all women, he noted — “convinced everybody that she was the only one there at the time. We can’t give her the time back, but I feel sorry for her.”
In Valdez’s January announcement that she wouldn’t prosecute Buchhorn, she wrote that “the decision to cease prosecution of this matter is not one that I have made lightly,” and no one can doubt that.
Nor, she said, does “it in any way reflect negatively upon the law enforcement agencies involved.
First responders did their best to resuscitate Ollie, and their efforts are admirable.”
They were, though this ignores the fact that it was Buchhorn who gave Ollie CPR for the first 30-something of the 52 minutes spent trying to save him.
“The dedicated law enforcement officers of the Eudora Police Department investigated the matter with assistance from the Lawrence Police Department, the Douglas County Sheriff’s Office, and the Kansas Bureau of Investigation,’’ Valdez wrote.
Dedicated, but in this case devoted to a mistaken snap judgment, based on information that turned out to have been not just wrong but fabricated. “If there is any consolation to be had by those who mourn the loss of Ollie,” Valdez said in the news release, “it can be found in the fact that many trained professionals worked tirelessly to pursue justice, and Ollie will never be forgotten.”
If justice is what they were pursuing, why did they for years ignore all evidence that ran counter to the theory they’d locked in on almost immediately?
That the death of this child is an unalloyed tragedy has never been in dispute. But is encouraging an already grieving family to incorrectly believe that they left their child with a murderer really what consolation looks like?
The only good news here is that because the state is fighting Buchhorn’s legal exoneration, all of the questions about prosecutorial decisions will have to be answered in court.
Meanwhile, Carrody Buchhorn is fighting the PTSD she never had before her incarceration.
And she’s trying to get back some of what life was like before the horrible afternoon that she put Ollie Ortiz down for a nap and later found him limp and cold.
“When the case got dismissed,” she told me in an interview in Lawrence the other day, “I assumed I was going to start feeling better and wanting to leave the house” now that she finally could. Instead, “my depression got worse and worse, and my anxiety is terrible.” Even a recent solo trip to Target turned into an ordeal. “After I got my driver’s license, I wanted to go to the store by myself, and I was so excited. Target has fun stuff, and Tim’s like, ‘Buy whatever you want.’ But I got in there and I was so overwhelmed I didn’t even know what to do. I tried looking for stuff, and thought, ‘What did I even want to buy?’ I’m feeling all this anxiety, so I got what I needed and got out.”
Absolutely, she is owed compensation from the state; the just under $400,000 that she’s asking for doesn’t even cover what her family has had to come up with in legal fees. And because what happened to Carrody Buchhorn could happen to anybody, Kansas is owed prosecutors more interested in justice than in winning no matter what."
The entire story can be read at:
https://www.kansascity.com/opinion/opn-columns-blogs/melinda-henneberger/article275428756.html
PUBLISHER'S NOTE: I am monitoring this case/issue/resource. Keep your eye on the Charles Smith Blog for reports on developments. The Toronto Star, my previous employer for more than twenty incredible years, has put considerable effort into exposing the harm caused by Dr. Charles Smith and his protectors - and into pushing for reform of Ontario's forensic pediatric pathology system. The Star has a "topic" section which focuses on recent stories related to Dr. Charles Smith. It can be found at: http://www.thestar.com/topic/charlessmith. Information on "The Charles Smith Blog Award"- and its nomination process - can be found at: http://smithforensic.blogspot.com/2011/05/charles-smith-blog-award-nominations.html Please send any comments or information on other cases and issues of interest to the readers of this blog to: hlevy15@gmail.com. Harold Levy: Publisher: The Charles Smith Blog;
SEE BREAKDOWN OF SOME OF THE ON-GOING INTERNATIONAL CASES (OUTSIDE OF THE CONTINENTAL USA) THAT I AM FOLLOWING ON THIS BLOG, AT THE LINK BELOW: HL:
https://www.blogger.com/blog/post/edit/120008354894645705/4704913685758792985
FINAL WORD: (Applicable to all of our wrongful conviction cases): "Whenever there is a wrongful conviction, it exposes errors in our criminal legal system, and we hope that this case — and lessons from it — can prevent future injustices."
Lawyer Radha Natarajan:
Executive Director: New England Innocence Project;
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FINAL, FINAL WORD: "Since its inception, the Innocence Project has pushed the criminal legal system to confront and correct the laws and policies that cause and contribute to wrongful convictions. They never shied away from the hard cases — the ones involving eyewitness identifications, confessions, and bite marks. Instead, in the course of presenting scientific evidence of innocence, they've exposed the unreliability of evidence that was, for centuries, deemed untouchable." So true!
Christina Swarns: Executive Director: The Innocence Project;
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YET ANOTHER FINAL WORD:
David Hammond, one of Broadwater’s attorneys who sought his exoneration, told the Syracuse Post-Standard, “Sprinkle some junk science onto a faulty identification, and it’s the perfect recipe for a wrongful conviction.”
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