Right up until Carrody Buchhorn was convicted of murdering 9-month-old Oliver Ortiz in the Eudora, Kansas, day care where she worked, she was sure that those who run the justice system she’d trusted all her life would see — of course they would — that that was just not what happened on Sept. 29, 2016.
“I was confident,” she said in an interview in her home last week, a few days after her release from the Topeka Correctional Facility. This was the first time she’d talked to a reporter in the nearly five years since Ollie died. From that day almost until the verdict came back, “I thought, ‘I didn’t do anything, so why would I be going to prison?’ It was really only when they were deliberating and asked the judge the difference between first degree and second degree that I knew things were not good. I was slow to catch on. Naive.”
We all were, says her husband, Tim Buchhorn, an active duty master sergeant in the U.S. Army. “We didn’t think you could lie on the stand, and we didn’t know the police could lie to us.” Since enlisting at age 19, he has fought for the beautiful idea of America.
“When you spend 40 years thinking one thing, and living by a certain set of values — I’ve spent my entire adult life defending our justice system and believing in the Constitution and believing in the Declaration of Independence,” he said with emotion. “It made me question everything I’d done, because the system didn’t work.”
Maybe it still will work, belatedly, in this case, anyway: His wife’s 2018 conviction was overturned in August, essentially because her original legal team failed to challenge the fact that the cause of death explained in court by medical examiner Erik K. Mitchell doesn’t exist. So she’s home for now, on house arrest and in an ankle bracelet, while she waits for a new trial.
But then again, maybe a second trial won’t be any different. The Douglas County District Attorney, Suzanne Valdez, is determined to send 47-year-old Buchhorn back to prison. Her deputy, Joshua Seiden, spelled this out in a snotty note to Buchhorn’s attorney, William Skepnek: “By this point,” he wrote, “you have most likely reasonably inferred that the District Attorney has no interest discussing the case with you, nor does she believe any of your correspondence merits any substantive response. … Moving forward, please direct all Dickensian tales of Ms. Buchhorn’s plight to me.”
In the state’s Aug. 24 brief arguing against Buchhorn’s release, prosecutors were still depending on Mitchell’s theory that “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.” Yet some of the country’s leading pediatric neurologists have called this “just fantastical,” and “magical,” backed up by nothing.
A jury did find Carrody Buchhorn guilty, after all, the state’s brief said. But as the Kansas Court of Appeals ruled, that’s in all probability because the jury was fed a very big hunk of junk science by Mitchell, a coroner with a history of sketchy rulings and iffy behavior.
Gave baby CPR for more than half an hour
I should say before going any further that no other bereavement compares to the loss of a child. And the Buchhorns, who have two grown sons of their own, have never lost sight of the enormity of the Ortiz family’s grief.
Just reading the trial transcript is an intense experience, because you can’t help but feel the rising panic of everyone who was at the Sunshine Kids day care that day. EMTs and the fire chief testified about seeing Buchhorn, who’d found Oliver motionless after his nap, frantic and giving him CPR when they arrived. The day care owner, Gina Brunton, told the court that all of the parents loved Buchhorn, and she loved all of the babies, Ollie included.
The expert hired by the defense said he couldn’t really explain why the child had died, since it couldn’t have been as the result of a skull fracture that was already healing. But Mitchell solved that problem: Buchhorn must have stomped on the back of his head, he said, even though she had no history of violence, or any other criminal behavior, and even though the autopsy showed no brain injuries. Yet Mitchell didn’t just say she’d done this, but showed what that would have looked like, dramatically tossing a CPR doll on the ground and stomping on its head in front of the jury.
Carrody remembers picking the little boy up after his nap and laughing at how soundly he seemed to still be sleeping. But then, when she and Brunton saw that he wasn’t breathing, she fell to her knees and started the CPR that she continued for more than half an hour.
Tim was in Salina, Kansas, when he got the call from his wife’s friend, who lives just across from the day care, that something was very wrong. When he finally arrived, more than two hours later, “I tried to ask her what happened and she was hysterical.”
In shock, she stuck around the day care for a couple more hours and then went home and cried all night. It was the next night, around 10:30, that police surrounded the house and took her in for questioning. Still, she didn’t believe anyone could really think she’d hurt a child.
They asked for the clothes and shoes she’d been wearing the previous day, Tim said, “and Carrody apologized to them for her clothes being dirty” and still in the laundry basket. They also took her phone, and Tim’s, to download. With their ready permission, of course. Because again, what was there to hide?
Only guilty people ask for attorneys, police said
It was on her way home from Ollie’s funeral a few days later, when she stopped by the police department to pick up her phone, as requested, that they started treating her like a criminal.
Suddenly, investigators the Buchhorns had always been friendly with “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 started talking about a Dr. Mitchell, who had apparently said that this wasn’t a natural death and was suspicious. “They told me Dr. Mitchell was on this and he was the best person we know. They’re saying, ‘Are you calling Dr. Mitchell a liar?’ ’’
After five hours, they asked Carrody, who was still in the dress she’d worn to Oliver’s funeral, if she’d take a lie detector test. And still, she said sure. Because any minute, they’d see how wrong all of this was. It was only when she called home to tell Tim what was happening, and that she wanted to come home and change clothes before her lie detector test, that he said he didn’t think so: “That’s when I said, ‘OK, we’re getting an attorney.’’’ Only guilty people ask for attorneys, police told her.
That night, Tim called around to some friends — mostly cops, actually — and the first defense lawyer whose name he heard, former prosecutor and Kansas Attorney General Paul Morrison, was the one he hired.
“Neither of us had any clue who Paul Morrison was,” Tim said. “Her whole life up until then was watching kids play football and spending time with family.” For the next six months, nothing happened. Then, on Good Friday, in April of 2017, she was arrested.
Tim was deployed to Kuwait later that same month, and one of the hardest things for Carrody, during the 16 months of house arrest that followed, was that their son Matthew, who is 23 now, insisted on dropping out of K-State and moving home to be with her.
Remarkably, she not only lost no friends but got close again to former classmates she hadn’t heard from in years. Still, “nobody really understood how much she grieved Oliver’s death,” her best friend told me.
A medical examiner’s questionable testimony
Then came the trial. She’d been ultra prepared by her lawyers on how she was supposed to look in court: No tattoos could show, nor any hint of a personality. But nothing and nobody had prepared her, she said, for the dazed reality that “I’d get up in morning and oh, I’m going to my murder trial.”
In a video of the autopsy that was played in court, you can see Mitchell asking police for guidance on whom to blame, and see the police leading Mitchell in the direction they want him to go. “Who works at this day care?” Mitchell asks as he works.
“The lady who runs it, she’s been doing it forever,” one of the officers tells him. “Right,” says Mitchell. “She’s probably one of the top-rated in the city,” the officer goes on. “Law enforcement and teachers and fire, that’s where they all take their kids.”
“Somebody specific taking care of these” babies?
“Yeah, that would be one of the ladies, Carrody. … She said she woke up the child, or went to wake up the child.“
“And this person takes care of this child all day?” Nobody else, the officer said.
On the stand, Carrody acknowledged that yes, little Oliver did cry a lot, and yes, that sometimes happened when she was having lunch. “A crying baby ruins that for you, right?” the prosecutor asked her.
Yes, she said, the baby frequently spit up on her. “Which obviously is something you didn’t like?”
Yes, she had told police that the boy had been on the fussy side — “pissy,” she’d called him. And yes, she had thought she should be paid more, texting a friend only the day before the baby’s death that she was sick of being taken advantage of by the “stupid bitch” who owned the place.
Talking that way, with both salt and pepper, “that’s normal for me,” she told me. But the state made it seem like that added up to a motive for murder.
In former prosecutor Mark Simpson’s closing argument, he put all of these pieces together: “She was disgruntled. She was unhappy with Oliver because he took more effort. And when she was alone with Oliver, it came to a head and she inflicted blunt force trauma and that interrupted the electrical signals in his brain” and killed him. “She knew it and instead of helping him, she put him in the pack ‘n play and let him die. … The only adult that could have done this is Carrody Buchhorn.”
The only problem with that argument is that the “this” as described by Mitchell is imaginary. You can’t die from head trauma without an injury to the brain. And in fact, there was no evidence that anyone had killed the child.
Mitchell’s creativity on the stand shouldn’t have come as a surprise to either the state or the defense: In 2015, the 2nd U.S. Court of Appeals ruled that a man named Hector Rivas had been denied a fair trial. Because, as a news account at the time put it, his defense team had failed to challenge “the shifting findings of a medical examiner who put him behind bars.”
In that case as in this, the medical examiner was Mitchell. Rivas died in prison in 2016, still waiting for his new trial on charges that he had murdered his former girlfriend, Valerie Hill, in 1987.
Yet in the case against Buchhorn, the state’s closing argument relied not just on Mitchell’s findings but on his credibility. “With Dr. Mitchell, you’ve got a neutral witness,” Simpson told the jury. Unlike the expert witness for the defense, who was being compensated for his time, “he doesn’t get paid more if it’s a homicide.”
The defense expert should be disregarded, he said: “How much credibility can you put in the opinion of a witness who finds no fatal injuries in a deceased person?” Mitchell, on the other hand, knew exactly what had happened, or sounded like he did. And, Simpson argued, “Dr. Mitchell’s experience is far more impressive.” If by impressive he meant notorious, that was true.
Cellmate drove her children into Kansas River
After the guilty verdict was announced, Tim said, “as she’s being taken away, she looked at me and said, ‘I’ll be OK. Take care of the boys.’ And I laid awake at night thinking of that.” That on the second worst day of her life, she wasn’t thinking of herself, but of them. He starts to cry a little, saying that, and then so does she, because she hasn’t heard it before.
In the Douglas County Jail for the next 16 months, her cellmate was Scharron Dingledine. You might know that name, because hours after leaving a mental hospital in 2018, she drove a stolen SUV with her 1- and 5-year-old children inside it into the Kansas River. “She’d show me pictures, and ask me if I thought her son she almost killed looked ‘retarded.’”
“That’s the worst word you can say in our family,” Tim said.
Dingledine was still suicidal, and jail personnel seemed to Carrody to be putting her in charge of her safety: The day the other woman was finally transferred out, Carrody was moved, too — to medium security.
Prison was less horrible than that, even though she did get COVID-19, like almost everyone else. And “I did learn that people in prison are not all bad.”
Her family, meanwhile, learned to put minor problems — and everything else was a minor problem — in perspective. Her older son, who had been planning to become an osteopath, instead became a death investigator for Johnson County.
They’ve moved to Lawrence now, from nearby Eudora, because despite the loyalty of Carrody’s friends, she doesn’t feel safe there any more.
The Buchhorns know now that anyone can be made to look guilty, and that prosecutors almost never give up on a conviction, no matter what the facts say. They are still trying to believe in everything they’ve always believed in, but “we’re more aware of a lot of things now,” Tim says.
And just before I leave their home, when Carrody says “I’m confident,” the system will get it right in the end, I’m not sure if she’s talking to me or to herself.
This story was originally published September 07, 2021 5:00 AM.