photo by: He 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 child in 2016 is still pending — for now.

A Douglas County District Court judge heard the first round of arguments Wednesday on whether to dismiss Carrody Buchhorn’s wrongful imprisonment lawsuit against the state of Kansas. 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. Although the case could have been retried, the Douglas County District Attorney’s office announced in January 2023 that it was dropping its prosecution of the case after a medical examiner retained by the office concluded that Ortiz died of natural illness rather than abuse on the children.

On Wednesday, Buchhorn’s new attorneys argued that the finding should be enough for the wrongful-detention lawsuit to proceed. Attorney Marc Templeton said not only did the state fail to present evidence that Buchhorn was responsible for Ortiz’s death, but rather the state presented evidence to the contrary.

However, a Kansas state attorney 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’s abusive prison statute to be met, the person who was convicted must prove that he was “in fact or fact” innocent. .

Qualseth argued that Buchhorn’s conviction was overturned because of ineffective assistance of counsel, after Buchhorn’s trial attorneys failed to adequately review a set of autopsy findings, and not because Buchhorn is innocent. He said that without proof of actual innocence, Buchhorn is not eligible for damages.

Templeton, however, said the DA’s office has already proven Buchhorn’s innocence. He said that when the DA’s office in 2023 chose to throw out testimony related to the original autopsy findings, the state lost any probable cause to charge Buchhorn with murder. 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, arguing for the state, said there was other evidence that could be used in court, while Buchhorn’s lawyers argued that any such evidence had already been rejected by the court.

Douglas County District Court Judge James McCabria scheduled further arguments on the matter for Dec. 6 and did not issue a ruling Wednesday. He said the recent Kansas Supreme Court ruling should be taken into account, but also said statements coming out of the district attorney’s office and his forensic pathologist.

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