 Cassandra Black Elk (Photo: Great North Innocence Project)
Black Elk, who was 26 years old, called 911. Starlight was pronounced dead by the first responders.
During an interview later that day at the Bismarck Police Department, Black Elk described the events leading up to the 911 call. She said that the night before, she had been at home with Starlight, her two other children, and Seth Eagle, Starlight’s father. After dinner, the older kids watched a movie. Starlight had a bottle at about 9 p.m.
About an hour later, Black Elk said, she and Eagle began arguing and later fought physically. He later left the house at about 1 a.m. Black Elk told the police that she had consumed about a beer and a half and three or four shots of flavored whiskey. She said she was “intoxicated” because of a low tolerance for alcohol. (Eagle would tell police Black Elk wasn’t intoxicated.) After Eagle left, Black Elk said, she gave Starlight another bottle, then swaddled the baby and laid her on the bed next to her.
The interview with police lasted three hours, as officers pushed Black Elk to say that either she or Eagle harmed the baby. They told her that her two other children would be placed with Child Protective Services if she did not make a statement taking responsibility for Starlight’s death or placing the blame on Eagle.
They told her that Starlight had died as a result of inflicted trauma, as evidenced by bruising they claimed to have seen on the girl’s head and back. They told her that Starlight’s death was due to Shaken Baby Syndrome and explained how these injuries could happen without someone intentionally meaning to harm an infant. Under this scenario, an officer said, Black Elk was simply a frustrated and an abused woman who herself needed help. Black Elk denied shaking her daughter.
An officer told Black Elk that based on his observation of Starlight’s body at the apartment, the infant’s state of rigor mortis suggested a time of death hours before Black Elk called 911, which meant Black Elk was lying about what happened. They also said that the autopsy would confirm that Starlight died from trauma.
When the police asked Black Elk what caused Starlight’s death, she said “SIDS,” referring to Sudden Infant Death Syndrome. The police told her the syndrome wasn’t real.
On February 22, 2022, Black Elk was charged with felony child neglect. The charging document said that she “failed to provide proper parental care or control for [Starlight] by consuming alcohol to a level that impaired her ability to care for [Starlight] and [Starlight] died due to the lack of appropriate care.”
Also on February 22, 2022, Dr. Barrie Miller, a forensic medical examiner for the state of North Dakota, performed an autopsy on Starlight. Burleigh County State’s Attorney Julie Lawyer and Detective Tyler Welk of the Bismarck Police Department attended the autopsy. Although Miller completed her initial findings within a few days, the final report was delayed pending peer review.
After her arrest, Black Elk was unable to make bail and remained in jail. James Loraas, of the Bismarck-Mandan Public Defender Office, was appointed to represent her. He quickly filed a motion for discovery, which reminded the state of its “continuing duty to disclose” evidence favorable to the defendant.
In a response on March 1, 2022, the state made no mention of any preliminary autopsy findings. During the next few months, Black Elk would later testify, she repeatedly asked Loraas about the status of the autopsy report.
On May 13, 2022, Black Elk pled guilty in Burleigh County District Court to felony child neglect. There was still no final report on the autopsy, and the plea agreement no longer mentioned Starlight’s death. Now, it said Black Elk “committed the crime of Child Neglect … by willfully failing to provide proper parental care or control necessary for the physical health of [Starlight].”
Black Elk received a sentence of five years in prison, with all but 18 months suspended. While in prison at the Dakota Women’s Correctional Center in the small town of New England, two hours west of Bismarck, Black Elk continued to request a copy of the autopsy. Eventually, she received one from the Office of the State Medical Examiner. The final report was dated May 27, 2022, two weeks after she entered her plea, and said there was “no evidence of foul play or recent significant trauma.” The cause of Starlight’s death was “Unexplained Sudden Death,” with the manner of death “undetermined.”
Black Elk filed a pro se motion to reduce her sentence and later contacted the Great North Innocence Project, which agreed to represent her in post-conviction proceedings.
On December 7, 2022, James Mayer, the project’s managing attorney, and Ryan Sandberg, an attorney in Minot, North Dakota, moved to vacate Black Elk’s conviction. The motion said that the autopsy report was new evidence of innocence not known at the time Black Elk entered her plea. It also said that Loraas had provided ineffective representation.
According to the filing, Black Elk was hesitant to accept the offer without the autopsy results, but Loraas told her she was “thinking too far ahead.” The motion said that when Black Elk asked Loraas what would happen if the autopsy came back in her favor after she entered a plea, he told her they would deal with that as needed.
The motion also said that the state had failed to disclose exculpatory evidence, in violation of the U.S. Supreme Court’s ruling in Brady v. Maryland. Although no final autopsy report existed at the time of the plea, there were preliminary findings that supported Black Elk’s claim she had no role in her daughter’s death.
On January 19, 2023, Judge Daniel Borgen held an evidentiary hearing. Miller testified about the autopsy she performed on Starlight. She said that it was “unusual” and “uncommon” for both police and prosecutors to be present and that when non-medical professionals attended autopsies, she used these visits as an opportunity to teach.
“So I do communicate with my visitors, and they’re obviously there because they want to know what I’m finding. So when I get done with my exam, I will have a brief conference and I will say these are the things that I found, these are things I didn’t find. Say in cases where they’re concerned about injuries, I’ll say I don't see any significant injury or lethal injuries. Obviously, this is preliminary, so I have additional testing that I need to do.
Mayer asked: “So is that what you would have said in this case, that you didn’t see evidence of significant recent injury to this child?”
“Correct,” said Miller.
Under questioning from a deputy state’s attorney, Miller said that she would have been willing to share her preliminary findings prior to issuing the May 26 report. “From the day I do the autopsy until I sign my final report, I can have discussions with people about what the findings are, what I am thinking of at the time, until I have my definitive conclusion.”
Dr. Mary Ann Sens, a pathologist at the University of North Dakota, had been part of the peer review on Starlight’s autopsy. She testified at the hearing that there was no evidence that Black Elk contributed to her daughter’s death. She said the autopsy showed no signs of intentional or accidental trauma, including a so-called “overlay” death, where an infant is suffocated when a parent rolls over on them while sleeping.
In a report accompanying the motion for a new trial, 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. Dr. Miller did a complete and excellent autopsy, and no evidence of neglect, abuse, or trauma was seen. Please correct this miscarriage of justice and assist this grieving family.”
Black Elk testified at the hearing, describing the interrogation by the police and her discussions with Loraas about entering a plea prior to obtaining the autopsy report. She said Loraas told her he had worked out a favorable deal with an assistant state’s attorney, but the prosecutor was leaving for private practice, which created some urgency.
“He said that it could take some time to get that [report] and this would be the best outcome,” Black Elk said. “I could be in and out of prison and whatever we—whenever it comes, we'll figure things out then.”
Neither Loraas or Lawyer testified at the hearing.
Mayer told Judge Borgen that while it was true that the final autopsy report was not signed until after Black Elk pled, “there was a disparity in the information possessed by the prosecution and by the defense.” He continued: “The state’s attorney attended that autopsy for a reason, to get information. The testimony from Dr. Miller was uncontradicted that she would have said at that autopsy that she wasn't seeing evidence of injuries, which puts the lie to what the police were telling Cassandra Black Elk throughout that interrogation. Does it mean as a matter of law there was no neglect? No. Is it Brady? Absolutely.”
The state’s attorney said there was no Brady violation. “The State knew that, essentially, no physical trauma had occurred, but as Dr. Miller testified, that doesn’t mean there was no foul play,” the prosecutor said. “All that means is that as of that moment, the physical autopsy showed no trauma.”
He said that absent Loraas’s testimony, it was speculative to conclude he was ineffective in recommending a plea prior to the final autopsy results. He also said that based on the allegations of Black Elk’s intoxication, it was possible to support a conviction for child neglect without including the autopsy report. (This was consistent with the language in the plea agreement, which made no mention of a death.)
On January 30, 2023, Judge Borgen granted Black Elk’s motion to withdraw her plea, vacating her conviction. “The court finds Ms. Black Elk’s plea was not knowingly or intelligently made after she received the advice from her attorney that they need not wait on the results of [the] autopsy because they could just ‘deal with it later.’” The ruling said.
Because Judge Borgen granted the motion based on ineffective assistance of counsel, he did not rule on Black Elk’s claim that the autopsy was newly discovered evidence of innocence or that the state failed to disclose exculpatory evidence.
“However, the court would note its concerns of the allegation that the State knew of the likely results of the autopsy report prior to the plea agreement, yet did not relay that information to Attorney Loraas so Ms. Black Elk could have been appropriately informed before making her decision,” Judge Borgen wrote.
Black Elk was released from prison the next day.
The state appealed Judge Borgen’s ruling, arguing that he had erred in second-guessing Loraas’s legal strategy and had allowed Black Elk to give hearsay testimony about what Loraas said.
The North Dakota Supreme Court affirmed the lower-court ruling on August 17, 2023. It said that the State had failed to preserve its objection to Black Elk’s testimony, and that Judge Borgen had correctly ruled that Loraas provided ineffective representation. One justice, in a concurring opinion, said Black Elk’s conviction should have been vacated based on new evidence of innocence, rather than ineffective representation.
Following the court’s decision, the State filed a new charge against Black Elk that made no mention of Starlight’s death. Instead, it said that Black Elk “failed to provide proper parental care or control … by consuming alcohol to a level that impaired her ability to care for [Starlight], an infant.”
Black Elk’s attorneys moved to dismiss, arguing that she had properly cared for her daughter, that the state’s interpretation of the child-neglect statute was “unconstitutionally vague,” and that there was no evidence Black Elk was too intoxicated to properly care for her daughter.
Judge Borgen denied the motion to dismiss on October 9, 2023, but ordered the state to amend its charging documents within 14 days to show how Black Elk’s alleged intoxication impaired her ability to care for Starlight or what care she failed to provide.
The State moved to dismiss the charge on October 19, 2023, writing that after a thorough review of the evidence, it “does not believe that continued prosecution of this matter is in the best interests of justice.” Judge Borgen granted the motion the next day.
Mayer said, “The fact that she actually herself, through her own diligence and her own work from a prison cell managed to get a copy of that autopsy report, which started all of this, is pretty amazing.”
– Ken Otterbourg
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