William J. Skepnek, of The Skepnek Law Firm, P.A., of Lawrence, Keynen J. (K.J.) Wall, Quentin M. Templeton, and Russell J. Keller, of Forbes Law Group, LLC, of Overland Park, Stephan L. Skepnek, of The Sader Law Firm, of Kansas City, Missouri, and Kevin Babbit, of Fagan & Emert, LLC, of Lawrence, Kansas won in State v. Buchhorn, No. 122,252 (Kan. App. August 13, 2021) obtaining a new trial in a Douglas County second-degree murder prosecution.
The case involved
the death of a nine-month old child. Ms. Buchhorn worked at the daycare where
the child died. She was the last person who admitted to having contact with the
child, but consistently denied harming the child. The State charged Ms.
Buchhorn with first-degree murder.
The State’s theory
of prosecution at trial relied on then Douglas County Coroner Erik Mitchell,
who performed the autopsy:
Dr. Mitchell's autopsy
revealed that O.O. had suffered a significant skull fracture but
no brain swelling. Dr. Mitchell deduced that O.O. died instantly following a
blow to the head, which he claimed released mechanical energy into the base of
the brain causing ‘temporary cessation of function at the base of the brain’ or
‘depolarization of neurons.’ He suspected that O.O. was stepped on.
At trial, Buchhorn’s
counsel presented testimony from forensic pathologist Dr. Carl Wigren that the
skull fracture showed signs of healing, meaning the injury was a few days to a
week old, and the cause of death was unknown. The defense did not directly
address Dr. Mitchell’s “depolarization theory”. Ms. Buchhorn was convicted of
the lesser-included offense of reckless second-degree murder.
Following the
verdict, Ms. Buchhorn obtained new counsel who moved for a new trial arguing, inter
alia, that her previous counsel provided ineffective assistance of counsel
by failing to adequately investigate and challenge Dr. Mitchell’s dubious
forensic testimony. To support those claims, the defense presented new medical expert
testimony, including Dr. Sudha Kessler, a pediatric neurologist who had
extensive experience treating pediatric brain injuries, who explained the “depolarization
theory” was unreliable:
[Dr.
Mitchell's theory is] just fantastical, because it's not something I have ever
been taught, not something I teach, not something—just not consistent. 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. In addition
to looking though my own textbooks, looking through the two database searches I
did, I was so taken aback by all this that I ... [asked] my colleagues if they
have heard of this idea; and honestly, most of the time, the response that I
got was laughter.
The defense further presented testimony from Alice Craig, a
professor at the University of Kansas School of Law and attorney at the Paul E.
Wilson Project for Innocence & Post-Conviction Remedies, who opined that given
Dr. Mitchell’s testimony on the “depolarization theory” at the preliminary
hearing raised questions on its validity, reasonable counsel would have
investigated the basis for the theory, recognized it was dubious, and challenged
it directly. The district court denied the motion for new trial, noting Ms. Buchhorn’s
trial counsel had considerable experience, and had prepared what was
potentially a winning strategy at trial.
The COA reversed the district court, holding, under the Strickland
v. Washington standard, that Ms. Buchhorn’s trial counsel ineffective and
prejudiced her right to a fair trial in these circumstances. The failure to
investigate the “depolarization theory” was objectively unreasonable given that
it was clearly established as central to the State’s case prior to trial, and
minimal investigation would have established its dubious nature. Therefore, the
defense utilized by counsel at trial was not a strategic decision, but one
based on a failure to investigate other available defenses. The COA explained:
The trial court erred in finding
it was reasonable for Buchhorn's counsel to rely upon Dr. Wigren to define the
medical issues they needed to address. The ultimate control of a case rests
with the lawyers and not the expert witnesses. It is incumbent upon the lawyers
to define clearly for the experts the scope of their assigned tasks. Here, the
communication channel broke down. The lawyers expected Dr. Wigren to tell them
everything they needed to know about O.O.'s death and Dr. Mitchell's theory on
causation. Dr. Wigren, however, apparently understood his engagement far more
narrowly and offered an expert opinion on the skull fracture and possible
causes of death rather than a critique of Dr. Mitchell's theory.
The COA further explained that while the decision to hire
Dr. Wigren may have been reasonable to contest the timing of the skull
fracture, the failure to reasonably investigate, and to present expert
testimony challenging the State’s dubious central theory of the case was not. The
COA further found Ms. Buchhorn’s defense was prejudiced by these failures given
that the lack of any physical evidence tying her to the death meant the case
hinged on the credibility of Dr. Mitchell’s “depolarization theory”, and
evidence could have been presented establishing its dubious nature.
[Update: the state filed a petition for review on September 7, 2021.]
[Further update: the KSC granted the state's PR on November 24, 2021.]
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