#440 Maggie Freleng with Cassandra Black Elk

In February of twenty twenty two. Cassandra black Elk was a young mother of three living in Bismarck, North Dakota. Her girls were her whole world. Six year old de Laiza loved school and wanted to be a biologist. One year old a Maria already had a strong personality. Cassie called her their wild child, and Starlight was the baby, just three weeks old. On the evening of February eighteenth, Cassie was at home with the girls and Starlight's father, Seth Eagle.

Chilling, hanging out with my kids. We was watching a movie. It was cooking supper.

Seth left around midnight to go hang out with friends. Cassie fed Starlight and put the two oldest girls to bed, Then she lay down with Starlight beside her and fell asleep. She woke up around six in the morning to find Starlight wasn't breathing. Daliza called nine one one, but it was already too late. Starlight was dead, and before she could fully process what had happened, the police were telling Cassie that she was under arrest for felony child neglect.

They were telling me, if somebody did something to Starlight, somebody killed her.

Cassie knew that wasn't true, and she had one question for her lawyer, what does the autopsy report say?

I kept the same, Well, what if it came back as I wasn't at fault? And then he was like telling me we could deal with that later.

But by the time she got the answer, it was too late. Cassie was already in prison.

I'm Cassie black Elk and I was wrongfully incarcerated for eleven months.

From Lava for Good. This is wrongful conviction with Maggie Freeling today. Cassandra blackout O. Cassandra black Elk was born August fourth, nineteen ninety five, in Bismarck, North Dakota. She's a member of the Cheyenne River Sioux tribe. Cassie grew up in Rapid City, South Dakota, the middle child of nine.

It was.

Busy, chaotic, closest to my three little sisters. We'd always play house school, went swimming at the Why all the time. We just ran around the trailer park that we used to live in and hung out with all our friends. Yeah.

Cassie had her first daughter, Daliza, at nineteen, with a boyfriend from high school. At age twenty two, she decided to move back to Bismarck to go to school. She had plans to become a social worker. Cassie's second daughter, Amara, was born in twenty twenty and then Starlight. When was Starlight.

Born January twenty fifth, twenty twenty two.

How did you meet Starlight's dad?

Up here hanging out with friends? Yeah, meant the first year I moved up here.

Cassie and Seth Eagle moved in together and at twenty six years old, Cassie was happy to be a stay at home mom. She loved hanging out with her girls. Seth helped to support Starlight and Cassie's two older daughters with oil royalties he received as a member of the Mja tribe the Mandan Hidatsa and Arikara nation. On the evening of February eighteenth, twenty twenty two, Cassie, Seth, and the girls were all at home together. So what do you remember from that night?

Like?

How did the night start? Tell me? I guess from the beginning.

I don't know. We were hanging out after my oldest got back from school. We was watching a movie, We was cooking supper, barbecue chicken, steamed veggies, and mashed potatoes.

At what point you and Seth got in an argument?

Yes, yeah, well yeah, well we was kind of fighting throughout that whole day. Really.

As the evening went on, Cassie and Seth began drinking, and when their fight turned physical, Cassie ended up with a bloodied ear. Finally, Seth stormed out to go see some friends.

Yeah, he was there all the way up until I don't know about midnight one.

Or some Yeah, and what'd you do when he left?

Fed my daughter and laid down with them.

So when you guys go to sleep, everything was normal.

I thought it was normal.

I don't know.

I just I didn't think I was gonna wake up too. Everything gone. What do you remember waking up?

It's okay, Cassie, my daughter gone.

She was she was stiff and cold. I was freaking out. My oldest had to call nine on one.

And then when the police got there, what happened.

Well, right away they were questioning me at my house. I wasn't even with them in my house for a full ten minutes. They wanted to know what happened here. I was trying to get a hold of someone to get a hold of Seth and they told me I needed to get off my phone. They noticed I had a bloody ear, and after that they told me to go to the police station.

And then what happens at the police station.

They start questioning me.

Were they questioning or were they kind of telling you?

Oh? Yeah, they were telling me their story.

Which was what what was their story?

Somebody did something to starlight, somebody killed her.

So that first interrogation that she goes into is actually three hours long, and you can imagine the state that she was in given the timing of the interrogation. My name is Jim Mayer and I'm a managing attorney with the Great North Innocence Project. The officers doing the interrogation are convinced and have jumped to the conclusion that Cassie has done something to the baby. They begin their interrogation by telling her that the child had bruising, that they

Remember, this is just a few hours after Cassie had found Starlight lifeless beside her. The officers telling her all this were not trained medical professionals, and the body had not even been examined yet.

It sounded to me like one of those officers had recently been to a training and learned about shaken baby syndrome, which of course is a highly controversial and dubious diagnosis, as any of us who work in this industry know. But he started explaining to Cassie in this interrogation room what happens when you shake a baby and how you know. That seemed to fit the situation that she was in.

So the officers ramped up their interrogation.

They would try all of these techniques, like telling her you didn't mean to do it, whatever you did was an accident. You just lost control, that maybe the baby was crying, maybe the baby couldn't sleep, maybe she got frustrated and just lost control and shook the baby. Just tell us that you're a person who needs help and not an evil person, right, and that things will go better for you, or they would tell her that, you know, the autopsy is going to come back and it's going

Did you start questioning yourself at any point? Were you wondering, like, maybe maybe I did roll over on her because she was in the bed with you.

Right, Yeah? But no, no, because the way I had her sleeping. She was out a slant away from me and my girls were on the other side, and I woke up in the same spot, literally, like the same way when I went to bed.

Three days later, on February twenty second, Cassie was trying charged with felony child's neglect. That same day, state medical examiner doctor Barry Miller performed an autopsy on Starlight. The autopsy was attended by the state's attorney, Julie Lawyer, and several officers from the Bismarck Police Department. While they were still awaiting the autopsy results, Cassie's case was going forward. She was assigned to public defender James Lores.

And the first thing that happens is they have a bail hearing that the prosecution comes in. It says, look, this is an infant death case. We need to set bail at a high level. She couldn't meet it, so she's stuck. She's behind bars, awaiting trial. She's got two young children from whom she separated at this incredibly dramatic time, So that's one layer of pressure that was added to her.

And I guess maybe I'm missing something, But how is she able to be charged without even having a medical diagnosis. Can they do that? I mean, I've never seen that.

The charging documents in her case, which came out on February nineteenth, what they said was, we know that she was responsible for the death, but we don't yet know the mechanism of the death, pending the autopsy results. So it was just the you know, a perfect example of a rush to a conclusion with really no solid foundation for it whatsoever, just assumptions that were made. Then, when a plea deal is offered by the prosecution, her lawyer urges her to take the deal.

Well, he said that they were considering of two years and he was going to talk to them and see if he get it out to eighteen months. And that's when I went to eighteen months.

That following week, her attorney was trying to rush Cassie into taking the plea because he knew that the prosecute was leaving for private practice in a few weeks after that. He said the deal might be off the table.

And he says things like, you'll be out before you know it. You're pleading guilty, you'll get a five year sentence, but you'll only serve about eighteen months. And you'll be out before you know it. Cassie was resistant to that for good reason. She kept saying, I know I didn't do anything to my child. I'm innocent. When can we see a copy of the autopsy report?

I kept asking him for the autopsy. I kept said the same, Well, what if it came back as I wasn't at fault.

Ultimately, what her lawyer says to her is, you're getting ahead of yourself for now. Just plead guilty. If the autopsy comes back favorable to you, we'll deal with that later.

How did that make you feel when he was like, no, no, and just kind of brushed something so important aside.

Like it didn't matter. I don't think it mattered to anybody. How Starlight passed away.

At her lawyer's urging, Cassie finally gave in and pled guilty to the charge of felony child's neglect. The plea deal did not mention Starlight's death. It simply said that Cassie had willfully failed to provide proper parental care or control necessary for the physical health of her baby. She received a sentence of five years, with all but eighteen months of it suspended because Seth was not the father of the two older girls. They were placed in foster care.

What was prison like? Well, I don't recommend it to nobody. Everybody says it's a cakewalk and what not, but it wasn't. It's like how, It's just how.

When you first got in there, did you tell anybody like I don't belong here. I didn't do.

This, yep. I told everyone that every day. A lot of girls in there just content with that life.

Not me.

So that's not me, that's not my life. I couldn't relate to half their stories. I just didn't know what to say to half of them. I was always just angry because I felt like I shouldn't have been in jail. Everybody heard it from me. Oh no, I lost my daughter. None of that made sense, none of it was okay. So I was always mad.

So here she is, she's pled guilty, she's been sentenced, she's in prison serving her sentence, and her lawyer had essentially told her that he couldn't help her get the autopsy report at that point, but she didn't give up. She kept working on her own to get a copy of it.

Cassie called the Medical Examiner's office in Bismarck over and over from prison, asking for the report. Finally she was able to fill out an online form to have it mailed to her, and then she waited and waited. Three months went by.

And then eventually she gets that copy, I think sometime in July of twenty twenty two, where she gets to read, you know, the story of what actually happened to her baby for the first time.

You're listening to Wrongful Conviction with Maggie Freeling. You can listen to this and all the Lava for Good podcasts one week early and ad free by subscribing to Lava for Good Plus on Apple Podcasts. Doctor Miller's final autopsy report was dated May twenty seven, twenty twenty two, two weeks after cast entered her plea, and it confirmed what she had always known, which she had tried to tell everyone that she hadn't done anything to hurt her baby.

Yeah, I felt a whole lot of relief, but didn't really do much. So I was just sat there crying because there was nothing I could do. I was already sent in prison.

My name's Adam Martin. I'm ten years sober, formally incarcerated, have multiple felonies on my background.

Adam is the founder and CEO of the F five Project, a nonprofit based in Fargo, North Dakota. It provides the formally incarcerated with support and re entry resources.

You know, all my friends were either dying or going to prison, and so after the last friend had went to prison and then the couple had overdosed off fetanol or heroin or whatever, I just felt like I wanted to do something different than what was being done. There was no real plan to start it. I just started going into the jail and trying to help guys that were being released, really just through storytelling. I didn't have

So what is far going North Dakota, Like, I mean, maybe tell me a little bit about the demographic. I mean, we know Cassie is Indigenous, so tell me about it.

Yeah, So the landscape is you know, obviously it's like eighty five percent white. We have there's not even a million people in North Dakota, Okay. So there's like seven hundred and seventy thousand of that seven seventy to about two hundred and forty thousand identifies having a criminal conviction. And so we're about twenty eight percent of our general population identify as that, which is about three percent higher

Adam's work with F five led him to joining the board of the Great North Innocence Project, where he met Jim in August of twenty twenty two, they went together to speak about their organizations at the New England Women's Prison.

And so this young Native American woman came up to me and she was very timid, and she couldn't even look me in the eye. She was shaking, she was teary, teary eyed, and she just all she said to me was I don't belong here.

Cassie told Adam that she was in prison for killing her baby, but she was innocent. And then she told him about the autopsy report.

And I've been in court enough to know that autosy reports are a big deal, right, And the fact that it came out after she was convicted sent off a red flag. And I was like, okay, well what did it say? And she said that my baby died of SIDS. And so I introduced her right there to James. And when we left the prison, James came up to me and he was like, we have a case. She has a case, and we're going to get her released.

In a way, her story was just so simple and straightforward. You know, you tell a lot of these stories and you see how convoluted they can be. Cassie's story is not convoluted at all. There was a tragic death of her baby that could not have been prevented by anyone.

In December of twenty twenty two, Jim moved to vacate Cassie's conviction, citing the autopsy report as new evidence, and also that Cassie's attorney had provided ineffective representation by advising her to take the plea and evidentiary hearing was held on January nineteenth, twenty twenty three, before Judge Daniel Borkin.

We presented the testimony from the medical examiner herself. She testified about the fact that there was no trauma in this case, that there was no evidence that the death resulted from something Cassie did or did not do.

Doctor Miller told the court that she would have been willing to share her preliminary findings with the defense prior to the final report, but Cassie's defense attorney never asked for it. The prosecution, however, knew all along what it would say.

One of the claims we made in our petition was that the state's attorney was present at the autopsy, so she knew that the autopsy was not showing any signs of trauma. And yet she managed to extract a guilty plea without disclosing what she knew.

But in addition to the evidence they had, Jim knew that in order to present the most effective case, Cassie would have to testify.

And I was a little nervous about telling her that because she was so quiet and soft spoken. I thought that would scare her. And she said something like, I'm ready, I can do that, and I just thought, Wow, She's come a long way in the few months that I've known her in terms of her confidence, and part of that was just that she was ready to tell her story.

So Cassie took the stand and told Judge Borgan everything that had happened.

The conversations with her defense lawyer, where she's professing her innocence and saying I want the autopsy. I want the autopsy, and he's telling her, just take this plea. We'll deal with that later. She tells that entire story, and her testimony was very, very credible, which the judge found and that was a big reason why he granted relief.

Cassie was released from prison the next day pending a new trial.

And one of the North Dakota Supreme Court justices actually wrote separately to say that with the new evidence of the autopsy report, it's very likely that she would be acquitted at trial as a matter of law, because they just didn't have the evidence.

At that point. Jim says, the state had a decision to make.

Do they now let the case go or do they choose to recharge her. Again, very disappointed to learn from them that they and to continue to prosecute. So they shifted their theory to say that because Cassie had been drinking alcohol that night, regardless of whether that had anything to do with her baby's death, that in and of itself, drinking alcohol while you have children at home is felony child neglect, and so they pursued the case on that theory.

Has that ever been a precedent that was set before drinking equals felony child neglect?

I have not seen an example where that fact alone was constituting felony child neglect. That really makes you wonder in terms of a charging decision, whether a middle class white mother who'd had a few glasses of wine at the ballet and was still under the influence when she relieved the nanny would be charged. I seriously doubt it. I spoke to a lot of other defense lawyers about this, you know, in other states around the country, and what I heard mostly was your client's not white, is she m?

After Judge Morgan's ruling, this Date continued with its efforts to prosecute Cassie, but when the judge ordered them to identify specific conduct from Cassie that constituted felony child neglect, they were unable to do so because she wasn't guilty. So on October nineteenth, twenty twenty three, the state moved to dismiss the charges. Cassie was finally free. Adam remember seeing her united with her two daughters.

I got a picture of when they were all hanging out and they were hugging her, and I just, I just I was emotional wreck. Just the moment of joy that that she's feeling at that moment. Enclosure was it was, It was inspiring for sure.

Since then, Adam and f five have been helping Cassie to rebuild her life outside of prison.

I've often played out the scenario like what person would it be the hardest for in re entry? And my opinion is, actually, here native American female that's being released from prison that has a bunch of felonies on her background is by far going to be the most stigmatized.

You know, one of the worst things that happened to her was that when she was arrested, she was absolutely savaged in the Bismarck media. You know, her mugshot was plastered on the front pages of papers with a headline suggesting that she was a baby killer, right that she'd been arrested for killing her own child, and that was so awful for her to see that and to have that be the story about her, to have her name

And so through all that stuff that she'd been through, that negative mindset that exists is basically just one big ball of trauma. And so if your listeners are you know, praying people, or if they're you know, thoughtful people, just having her in your thoughts and just given sending her good vibes and good prayers is going to be. She's going to need it because she's got a long journey ahead of her.

Eventually, Cassie hopes to return to Rapid City and to school. For now, she's just enjoying spending time with Dealeza and em Maria. She says that being separated for all those months took a toll on their relationship and she's working to rebuild that bond, and Cassie says, all three of them mean time to heal from losing Starlight.

I'm traumatized. It's traumatized and losing my baby, but I went through a lot more with it. Like even my babies, my three year old and my eight year old, are affected, not just me.

How often do you think about her, Cassie every day?

Yeah, yep.

I see my two oldest and I always think of how would have been with all three.

We all still talk.

About my daughter. My oldest always talks about because she remembers how she was. She was a calm little baby. My three year old she doesn't understand it. She kind of makes me laugh. She thinks she carries my starlight in her stomach. Whenever she gets really fool or she's done eating a snack, she'll say, Starlight's making her stomach hurt because.

It looks like she's pregnant.

Yeah, she's really funny with all that. Or like three peas in a pod.

Yeah, I always tease everybody and say we're cool out in public. We'll get along, all three of us, but we get back in our house, it's chaos disastery.

If you'd like to help support Cassie and her daughters as they restart their life together, there's a GoFundMe for her. We'll have that link in the episode description. And if you'd like to know more about the Great North Innocence Project and the F five Project. Please check out their links on the page as well. Thank you for listening to Wrongful Conviction with Maggie Freeling. Please support your local innocence organizations and go to the in the episode description