photo by: Contributed

Carrody Buchhorn

A lawsuit seeking at least $400,000 in damages from the state of Kansas for wrongful imprisonment related to an overturned conviction in a case involving the death of a baby in 2016 is still ongoing, for now.

A Douglas County District Court judge on Wednesday heard the first round of arguments on whether Carrody Buchhorn’s wrongful imprisonment lawsuit against the state of Kansas should be dismissed. Buchhorn was charged and convicted in 2018 in the death of 9-month-old Oliver Ortiz, who was at a Eudora daycare where Buchhorn worked.

But Buchhorn’s conviction was overturned by the Kansas Court of Appeals in August 2021 because Buchhorn’s trial attorneys were deemed ineffective. While the case could have been retried, the Douglas County District Attorney’s Office announced in January 2023 that it would stop prosecuting the case after a forensic pathologist hired by the office concluded that Ortiz died of a natural illness and not child abuse.

On Wednesday, Buchhorn’s new lawyers argued that the finding should be enough for the wrongful imprisonment lawsuit to continue. Attorney Marc Templeton said that not only has the state not presented evidence that Buchhorn was responsible for Ortiz’s death, but the state has presented evidence to the contrary.

However, an attorney for the state of Kansas disagreed. Deputy Attorney General Shon Qualseth is asking for the case to be dismissed after the Kansas Supreme Court ruled in a separate case that for Kansas’ wrongful imprisonment statute to be enforced, a convicted person must prove he or she is “actually or objectively”. .

Qualseth argued that Buchhorn’s conviction was overturned due to ineffective assistance of counsel after Buchhorn’s trial attorneys failed to adequately examine a series of autopsy findings, and not because Buchhorn is innocent. He said that without proof of actual innocence, Buchhorn is not entitled to compensation.

Templeton, however, said the district attorney’s office had already proven Buchhorn’s innocence. He said that when the district attorney’s office in 2023 decided to abandon testimony related to the original autopsy findings, the state lost all probable cause to charge Buchhorn with a crime. Templeton said District Attorney Suzanne Valdez went a step further when she issued a news release saying the new state medical examiner who reviewed the case concluded Ortiz died of natural causes.

Qualseth, defending the state, said there was other evidence that could be used in court, while Buchhorn’s attorneys argued that such evidence had already been rejected by the court.

Douglas County District Court Judge James McCabria scheduled additional arguments on the matter for Dec. 6 and did not issue a ruling Wednesday. He said the recent Kansas Supreme Court ruling needs to be considered, but so should the statements that have come out of the district attorney’s office and its forensic pathologist.

Buchhorn filed the wrongful conviction lawsuit in 2023. She is seeking about $400,000 in compensation, plus attorney fees, for the more than five years she was imprisoned in some form.