photo of: 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 an infant in 2016 is still pending — for now.

A Douglas County District Court judge heard the first round of arguments Wednesday 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 attorneys were found to be ineffective. Although the case could have been retried, the Douglas County District Attorney’s Office announced in January 2023 that it was ending the prosecution after a medical examiner hired by the office concluded that Ortiz had died of a natural illness rather than child abuse.

On Wednesday, Buchhorn’s new lawyers argued that the outcome should be enough for the wrongful imprisonment suit to proceed. Attorney Marc Templeton said the state not only failed to present evidence that Buchhorn was responsible for Ortiz’s death, but instead presented evidence to the contrary.

A lawyer for the state of Kansas, however, disagreed. Assistant Attorney General Shon Qualseth is seeking dismissal of the case after the Kansas Supreme Court ruled in a separate case that for Kansas’ wrongful imprisonment law to be upheld, the person who was convicted must prove that she is “actually or factually” innocent. .

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

Templeton, however, said the prosecutor’s office had already proven Buchhorn’s innocence. He said when the prosecutor’s office chose in 2023 to drop testimony related to the initial autopsy findings, the state lost probable cause to charge Buchhorn with a crime. Templeton said District Attorney Suzanne Valdez went further, issuing 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 thrown out by the court.

Douglas County District Court Judge James McCabria scheduled additional arguments on the issue for Dec. 6 and issued no ruling Wednesday. He said the Kansas Supreme Court’s recent decision should be taken into account, as should statements coming from the district attorney’s office and its medical examiner.

The wrongful conviction suit was filed in 2023 by Buchhorn. She is seeking approximately $400,000 in compensation, plus attorney’s fees, for the more than five years of incarceration in one form or another.