The North Dakota Supreme Court has affirmed a ruling which threw out the criminal judgment and sentence of a woman who pled guilty to neglect in the death of her 3-week-old daughter in Bismarck last year.
The Burleigh County State’s Attorney appealed to the state’s highest court in February to overturn Judge Daniel Borgen’s order but, in an opinion released Thursday, the five Supreme Court justices ruled unanimously to allow Borgen’s decision to stand.
27-year-old Cassandra Black Elk was charged with felony child neglect in relation to the death of her infant daughter in February of 2022. She was sentenced to 5-years in prison after pleading guilty in May of 2022.
An autopsy of the infant was conducted on the day Black Elk was charged and attended by members of the Bismarck Police and the Burleigh County State’s Attorney. But the final report, which found no evidence of foul play or trauma, did not come out until the end of May – two weeks after Black Elk had entered her guilty plea. The head of a team of pathologists who reviewed the report said it showed “no criminality at any level.”
Black Elk filed a civil case against the State in last September. In a petition for post-conviction relief filed in December, Black Elk’s attorney James Mayer of the Great North Innocence Project described Black Elk’s experience in the hours and days following the infant’s death. The petition alleged that, during a three-hour interrogation by Bismarck Police later that day officers repeatedly told Black Elk there was bruising on the baby’s head indicative of a violent assault and evidence the baby had been shaken to death. Black Elk maintained her innocence throughout the interrogation, and the final autopsy report showed that the officers’ claims during the interrogation were false. Officers also told Black Elk that her other two young children were placed into foster care and she was unlikely to get them back unless she confessed to what she or her boyfriend had done to the infant.
Black Elk testified that she made multiple requests to see the final autopsy results but her public defender, James Loraas, told her they could “deal with it later,” and to first enter a guilty plea.
Dr. Mary Ann Sens, the Chief of Pathology at the UND Medical School, led the peer-review of the autopsy and provided a report in support of Black Elk’s petition. Sens wrote: “this infant’s death cannot be explained. No legal or criminal culpability should exist because medicine has not advanced enough to explain this death…please correct this miscarriage of justice and assist this grieving family.”
District Court Judge Daniel Borgen granted Black Elk’s petition, agreeing with her claim that she received improper advice from her attorney when he convinced her to plead guilty. Borgen also cautioned the prosecution in his ruling, noting that the Burleigh County State’s Attorney, having been present at the autopsy, would have known there were no obvious signs of neglect found but did not relay that information to defense counsel.
Attorneys for the state argued that Borgen errored by using hearsay testimony from Black Elk about the advice Loraas had given her.
Four justices disagreed, and determined that post-conviction relief was due Black Elk because of ineffective counsel.
Justice Lisa Fair McEvers concurred with the majority but for a different reason. McEvers found that, based on newly-discovered evidence, the autopsy report, and testimony of forensic pathologists, an acquittal of Black Elk at trial would be a likely result, and that Black Elk had thus “met her burden to show a manifest injustice, and the court should have applied its discretion to allow withdrawal of her plea.”
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