Oral arguments hear if ND woman should get new trial in death of 3-week-old

BISMARCK, N.D. (KFYR) – Oral arguments were held Monday in the North Dakota Supreme Court on whether a New England woman should get a new trial for the death of her three-week-old daughter.

Last year, Cassandra Black Elk pleaded guilty to child neglect and was sentenced to one and a half years in prison. But in February, Judge Daniel Borgen vacated the sentence and ordered that Black Elk get a new trial because of improper advice her attorney gave her when she entered a plea.

Black Elk’s defense attorneys say autopsy results fully exonerate her. The results state the child’s manner of death was an unexplained sudden death and undetermined.

”It is reasonably probable that Miss Black Elk would have agreed to be separated from her family and serve 18 months in prison for a crime she clearly did not commit,” said her attorney Mark Bradford.

Black Elk’s attorneys say the reason she pleaded guilty to child neglect was because of improper advice from her counsel and the state’s mishandling of evidence.

”Number one, the state didn’t tell her that they knew at least preliminary from the pathologists that there was no evidence of harm to this child,” said Bradford.

The state believes her conviction should stand. Prosecutors say District Court Judge Daniel Borgen relied on hearsay evidence and there is no record of how her attorney was ineffective.

”We do not know the investigative steps he took to get the autopsy report that is of issue. We do know any of the details of plea negotiations between him and the state. We do not know his strategies and tactics of handling the case. And most importantly, we do not know what specific advice he gave Miss Black Elk,” said prosecutor David Rappenecker.

Prosecutors contend the autopsy was not complete when Black Elk willingly pleaded guilty.

”The physical portion showed no foul play. As the pathologist did testify as well that the autopsy was not complete. The autopsy included tox screens that had to be sent away that were completed in April,” said Rappenecker.

The defense says this shows Black Elk’s ineffective counsel. However, Justice Lisa McEvers says this move could have been the lawyer’s strategy to get her a lesser sentence.

”Where the defense attorney doesn’t wait for a report. Because the report could come out and result in something worse for their client than if they plead guilty right now. There had been something bad in the report, it might have been a murder charge,” said Justice McEvers.

Black Elk’s attorneys say her attorney made her believe that pleading guilty wouldn’t be her final outcome. And if there was any evidence in her favor brought forth it would be addressed then. Her current attorneys said the high burden of withdrawing the plea was not discussed with her.

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