Melinda Henneberger: Kansas coroner had a history of getting it wrong. And yet kept right on testifying

But did she? The appeals court suggests that there might not have been a crime at all. And they said Buchhorn is entitled to a new day in court because her lawyers didn’t try hard enough to keep Mitchell from testifying about his truly out-of-nowhere theory about what caused little Oliver Ortiz’s death in September of 2016.

It was Buchhorn who put the baby down for his nap, and Buchhorn who gave him mouth-to-mouth resuscitation after she was unable to wake him. The appeals court said there is a reasonable probability that the jury would have found Buchhorn not guilty if Mitchell’s highly creative testimony had been challenged more seriously by her defense team.

‘When you’ve got a dead baby, someone’s going to pay’

One of her lawyers, Paul Morrison, the former Johnson County district attorney and state attorney general, insists that he did go after Mitchell’s made-up theory, and also noted that Mitchell had come to Buchhorn’s probable cause hearing with the wrong case file, and then started testifying about someone else’s X-ray. But “when you’ve got a dead baby, someone’s going to pay,” he told me. “And Erik Mitchell’s machinations helped.”

Ortiz had a cracked skull that may already have been healing, and a fresh bump on his head. There was no evidence of either a brain injury or of child abuse, though, and the expert testifying for the defense said he didn’t know how the child died.

Mitchell swore that he did know, and the jury liked that answer better. Yet it was out of nowhere that Mitchell suggested during a pretrial hearing that Buchhorn might have stomped on the child’s head. He testified that “the most likely — and I am going on statistics here — 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.”

Say what? That the coroner’s explanation makes no sense to me means nothing. But that the country’s top pediatric neurologists don’t know what he’s talking about either is a problem. And those statistics Mitchell mentioned? There aren’t any.

The University of Pennsylvania Children’s Hospital’s Sudha Kessler later called Mitchell’s theory “just fantastical, because it’s not something I have ever been taught, nothing something I teach, not something — it’s 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.” When she asked her colleagues what they thought of this explanation, she said, “the response that I got was laughter.”

It’s not remotely amusing, of course, to either the family of the child or of the woman who was blamed for this supposed death-by-depolarization. Buchhorn, who had never been in any kind of trouble before, according to the state’s theory killed the baby because she was angry at her boss.

Then, after stepping on Oliver Ortiz, the state argued, she was utterly indifferent to the intense suffering that Mitchell said would have been immediately apparent. So indifferent, according to prosecutors, that she stuck him in a crib and left him to die.

But is the callous and/or careless party here Buchhorn, or Eric K. Mitchell, who has been getting away with various sketchy practices throughout his career? Or really, not so much getting away with as getting rewarded for, by prosecutors who have appreciated his flexibility.

Organs removed without consent, stored skeletons in office

Mitchell did not return the text I left on his cell, which his wife told me is the best way to reach him since he doesn’t answer his phone. And that does make sense.

For the 10 years before Mitchell arrived in Kansas in 1994, he was the chief medical examiner for Onondaga County, New York. And that’s where an investigation by the district attorney’s office found that he had overstepped his authority and mismanaged his office. Mitchell resigned rather than be fired, and the DA agreed not to pursue criminal charges.

Overstepping and mismanaging can mean anything, but an Associated Press story at the time said Mitchell had “routinely removed organs from corpses without the consent of the victims’ families and improperly stored skeletons and body parts in his office.”

The investigation started after officials learned that a man convicted on child porn charges had a photo taken of himself with a corpse in Mitchell’s custody. Oh, and morgue employees had taken pictures of themselves in “playful poses” over the corpse of a female suicide victim. So much fun, that office.

While the DA was investigating Mitchell, the coroner helpfully changed his mind about his findings in the murder case against a man named Hector Rivas. Initially, Mitchell had said that the victim, Rivas’ ex-girlfriend, Valerie Hill, had been killed on a Saturday night or Sunday morning in March of 1987.

Only, Rivas had an alibi for that time period. When the DA reopened what had been a cold case, however, Mitchell reconsidered, and said that Hill might actually have been killed as early as Friday evening, when Rivas had no alibi.

It was as a result, an appellate court later found, that Rivas was convicted in 1993 and spent the rest of his life behind bars. He died there, in 2016, still waiting for the new trial that he’d been owed since his conviction was reversed by the federal 2nd Circuit of Appeals the previous year.

Helped send Pete ‘Olin’ Coones to prison wrongly

In Kansas, another of Mitchell’s mistakes, if that’s what it was, helped convict another innocent man, Pete “Olin” Coones, who served 12 years for a Kansas City, Kansas, murder he did not commit before being released last November.

The victim in that case, Carl Schroll, was actually shot by his wife, Kathleen Schroll, who then committed suicide. But in keeping with the on-the-spot judgment of Kansas City Police Department detectives that it was Coones who had shot them both, Mitchell ruled the deaths a double homicide. And said that the textbook graze wound on Carl’s head had instead been caused by blunt trauma.

Mitchell ruled that he’d been hit with an object instead of grazed by a fourth bullet shot from his wife’s gun, which was found by her side.

This was key, because turning that graze wound into blunt trauma allowed the state to argue that someone else had been in the couple’s home that night. Shortly before shooting her husband and herself, Kathleen had called her mother and said that Coones was there and threatening to kill them. Why would she say that? Coones, who like Buchhorn had never been in any trouble before, was taking Schroll to court to recover the money police knew she’d stolen from his elderly father while working as his caretaker.

The bullet that grazed Carl’s head wound up in the stuffing of a pillow near his body. But it was only discovered there 12 years later, by Coones’ legal team and Wyandotte County’s conviction integrity unit. And then, finally, Coones was released — just 108 days before he died of cancer that had gone undiagnosed in prison.

There have been other issues with Mitchell’s findings, and other do-overs of autopsies. In 2012, Mitchell ruled that a 32-year-old woman named Rachel Hammers had died in the Douglas County Jail as the result of seizures caused by alcohol withdrawal. But four years later, after Hammers’ father had sued the county, Mitchell amended his ruling, omitting what he’d said about alcohol withdrawal and noting that on the contrary, there had been no evidence that she’d been going through withdrawal in jail. So what changed? Definitely not Mitchell’s willingness to be of service.

At the 2015 murder retrial of Martin Miller, also in Douglas County, Mitchell came right out and said on the stand that he had based his 2004 ruling that Miller’s wife’s death was a homicide partly on having heard from police that Miller had lied about his whereabouts on the morning she died.

Miller was again found guilty at his second trial. Another appeal is going on right now, and one of the grounds for it is Mitchell’s admission that what police had told him about the case had influenced the findings of his autopsy, which is not supposed to be a political document.

DAs aren’t supposed to rely on sketchy expert testimony

Now that Buchhorn, too, is due a new trial, the current Douglas County district attorney, Suzanne Valdez, is naturally delaying that inevitability by referring the case to the Kansas Supreme Court for review. Sure, because what’s another who knows how long in prison when you’ve been there for years already?

Not every district attorney sees his or her duty as seeking and safeguarding convictions rather than justice. Jackson County Prosecutor Jean Peters Baker, for one, has apologized for the wrongful murder conviction of Kevin Strickland, and means to see him walk free.

But the issue in this case that’s even bigger than the personal tragedies of the Ortiz and Buchhorn families is how eroded our confidence in our criminal justice system has been by the willingness of prosecutors to rely on expert testimony that they have no reason to believe is true.

That Mitchell, despite his history, has been such a frequent witness for the state is both an indictment of our system and just one more reason for our well-deserved loss of faith in it.

We still don’t know how Oliver Ortiz died, as awful as that is.

But the prosecution either knew or should have known Mitchell wasn’t right about what the boy’s autopsy showed, says Buchhorn’s current attorney, William Skepnek. It isn’t that Mitchell gets it wrong, in Skepnek’s view, but that “he will fill any hole that needs filling.” And that this malleability might have been what protected Mitchell from consequences all these years reflects even worse on those who put him on the stand than it does on him.