BISMARCK, N.D. (KFGO) – Attorneys for the State of North Dakota have appealed a judge’s order to throw 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 appeal comes even as court documents in the case show the infant’s autopsy found no evidence of foul play or trauma, and the head of a team of pathologists who reviewed the report said it showed “no criminality at any level,” and asked the court to correct a “miscarriage of justice.”
27-year-old Cassandra Black Elk woke in the early morning hours of February 19, 2022 to find her infant daughter unresponsive. Bismarck Police investigated the death and Black Elk was charged with felony child neglect. She was sentenced to 5-years in prison after pleading guilty in May.
Black Elk filed a civil case against the State in September after receiving the autopsy report months after her guilty plea.
In a petition for post-conviction relief filed in December, Black Elk’s attorney James Mayer of the Great North Innocence Project describes Black Elk’s experience in the hours and days following the infant’s death. The petition alleges 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.
The autopsy was conducted on February 22 and attended by members of the Bismarck Police and the Burleigh County State’s Attorney. The final report did not come out until May 26, two weeks after Black Elk had entered her guilty plea.
Dr. Mary Ann Sens, the Chief of Pathology at the UND Medical School provided a report in support of Black Elk’s petition. She led the peer-review of the autopsy in the case. In her report, 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 last week, agreeing with her claim that she received improper advice from her attorney when he convinced her to plead guilty. 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.
Borgen 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.
Borgen’s order vacated the previous judgment in the case and allowed Black Elk to withdraw her guilty plea. On Friday afternoon, the State appealed the order.
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