The North Dakota Supreme Court has upheld a district judge's decision to grant a new trial to a Bismarck woman sent to prison last year in the death of her infant daughter.

Four of the five justices agreed with South Central District Judge Daniel Borgen that Cassandra Black Elk received bad advice from her attorney. Justice Lisa Fair McEvers agreed that Black Elk should get a new trial but for a different reason -- evidence that surfaced after Black Elk's guilty plea to a child neglect charge that subsequently led to 1 ½-year prison sentence.

Authorities said Black Elk had been drinking and smoking marijuana before finding her 3-week-old baby dead when she awoke about 6 a.m. on Feb. 19, 2022. Black Elk pleaded guilty and was sentenced in May 2022.

Black Elk during a hearing last January testified that public defender James Loraas told her to plead guilty before seeing autopsy results and that they’d “deal with it later.” Autopsy results later showed the infant was normally developed, well-nourished and well-hydrated, and there was no evidence of foul play. The death was listed as “unexplained sudden death.”

Borgen in February concluded Black Elk received improper legal advice. He vacated her sentence and ordered a new trial.

Prosecutors appealed to the Supreme Court, arguing that Borgen relied on hearsay because Black Elk didn’t call Loraas to testify at the January hearing.

Justices in their Thursday opinion noted that prosecutors didn't object to Black Elk's statements during that hearing. They also ruled that Borgen was correct in concluding that Black Elk's attorney was ineffective, and that "The legal misinformation provided to her by defense counsel deprived Black Elk from an intelligent and voluntary plea."

McEvers in a separate opinion concurred with the end result of the ruling, but said "I do not agree with the majority that Black Elk met the burden for proving her counsel was ineffective. In my opinion, Black Elk has shown she is entitled to post-conviction relief based upon newly discovered evidence." McEvers said she thinks that evidence "would likely result in an acquittal at trial."

Loraas did not immediately respond to a Tribune request for comment. The Burleigh County State's Attorney's Office also did not respond to a Tribune message that was left after normal business hours.

Court documents show a new trial for Black Elk is scheduled to begin Sept. 26.