this often that sometimes tragic facts are tracked circumstances lead to or legal decisions and i think that's what happened here are you appealing the acceptance of the guilty plea motion to withdraw the plea that analyzed or clarified or you could say changed an element of the offense and specifically the intent element of this offense so i don't know that i could say that the acceptance of the i mean there were some issues with the acceptance of the guilty plea in that sheet that the defendant messias was not advised of the elements of the offense at all either in the  but under an understanding of what the elements were at that time under new mexico law i'm not sure if it was wrong or not well that's it if you're not sure if it was wrong or not my concession i need to make and i need to apologize to the court because i think i was wrong about the standard on appeal i said playing area like chess said i think because she gave the court an opportunity to correct it before sensing that it should not be playing air but i said in any event if it is playing air american we're still ok on a plane air so my post might be focused on plane air and actually the government corrected me on  another motion and then later filed a motion to reconsider after miss husband had come forward with certain factual admissions but in any event there was a point in time when judge brack said in light of the country a decision in this court we need to now bent i think the government correctly and i'm going to apologize once more that i that i think i missed this and but i think they're right that there's a three part test when you're saying that the plea was not knowing the voluntary because an element was not explained  generally to plead guilty you have to know what you are pleading guilty to and there's a three part test that they set out that where it's intent that one was intend to critical element to the defendant overcome the presumption that the attorneys advise the defendant the element  demonstrate that there was no other notice of that element the government concedes that st element that intent is a critical alamo and i just have to say here i know we know this but in the realm of child abuse it's kind of unusual because there is child abuse in a civil context and then there's child abuse the criminal context and what is often the difference there is the intent involved whether it's negligence or whether it ends up getting too reckless and sort of purposeful so  the statute and this is what the statute says this is the new mexico statute has sort of two port parts to it with judge brack found he said well i didn't yes i did not review the elements and they were not set on the of tracked the statutory language and therefore the elements were presented to her statute says the defendant knew or should have known that the conduct created a substantial risk of harm or is what the crime is and that knew or should have done part is just supplemental language and so i think what the judge was saying is that consciously disregarding a risk implies that you have to know that there's a risk it implies knowing not consciously judge brack ultimately resolved it saying that because there was a disregarding that implies that you have to know something in order to disregard something you you therefore must have known it existed or how could you disregard it and i'm  reading into his words a little bit they're trying to make sense of what he  said i think that you are you're on are correct about that it does not use the word conscious and that may have made a difference however i would still say the st part of the statute is confusing when it says knew or should have known that is confusing the judge found it was not but you got the supreme court of new mexico at a time after the plea if you months after the plea but before the motions to withdraw our file the supreme court of new mexico found that it was confusing yes how do we you've got to overcome the presumption that her attorney explained element to her correctly right yes what do you rely on to overcome that presumption what i rely on statement which is lengthy and i think i said in the opening brief i say that page sixty seven of the reply brief as well her phrasing it she says i should have known i didn't know i didn't know about the fractures i'm i'm paraphrasing the language says i should have known if i had known i would have helped my child if i had known things would have been different but the language says that i should have known because i am her parent so she goes on to say i should have known because i'm her mommy she is clearly she when she is asked what makes you guilty she is clearly misstating and not understanding the proper legal standard for that element why i believe her lawyers didn't advice sure of that because nobody said anything about nobody corrected it at the time of the plea nobody said well wait a minute she's not actually admitting it but i'm not sure that they could have because the decision consol had not come out that's the new mexico supreme court case that clarified the child abuse statute that had not come out yet so i'm not sure that her lawyers understood d or the court or the prosecutor for that matter then came along i think in the early one thousand nine hundred and ninety s said no there's got to be some mental element here there's got to be some some negligence here at least in the talk about criminal negligence and then consul said oh we've got to have more than negligence and so the standard was evolving and that's why i think we overcome that presumption because how could her attorneys have known that for sure it was not even clearly established a new mexico law your honor in a judge brack final order denying the motion i say final order because he denied it orally when she made her pro se motion he denied a motion and we filed his final order he even notes that mrs i assume her statement quote says she seemed to stop short at it meeting negligence so that's what he understood she was telling were there any other documents any other ways that she would have received notice that it was a recklessness standard and the governor were not asked that the information it's also these documents were all created it and i know i'm not i'm not arguing a lack of voluntary list because of the russia because the level of emotion but i do think it's something these are red flags that were raised and judge brack addresses them at the she was getting ready to go to trial on a murder charge and over the weekend new evidence had come to light i guess it was the friday before this mandate hearing a nd forensic examiner had gone to albuquerque defense counsel used to sing as attorney had met with the nd forensic examiner and they had found new facts that caused the government to make this plea offer on monday morning so she's in court monday morning for motions hearing she set for trial in about two weeks and the government makes an offer to her so she is she is looking at these documents for the st time that monday morning looking at the the information looking at the plea agreement and she does have some hours and so i'm i'm again saying i think it's based on fact that the elements were not explained to her she made no admissions and in the bottom line is well i guess something else that's important is that in a lot of cases there are acts from which you could  infer intent you know hit the child on the head with a hammer you don't need a statement of intent you can infer intent from that there are no actual ledge to the judge even says that sentencing will never know what happened to this child or at whose hands this is not a technicality she admitted no criminal conduct and the government showed no criminal conduct and i'd like to reserve  what she was pleading to so they're kind of related right and they are you are they are but we did use the allen female and standard the three part test that counsel just laid out for you and we do it that the intent was a critical element here we facts i should say that the only part of it you say that she planned to is now recklessness if you look at the jury instruction recklessness when she said i should you to look very carefully at her words what she's saying that she should have known about are the injuries and that's not what she was pleading to she was pleading to putting her daughter in a situation that resulted in those injuries and so i would ask the court too much she didn't know about the injuries how could she know that the situation would create the injuries well she there's a lot there is more to this case but the fact that that there appears to have been appears to about her husband who question so how do we know what are the facts here are so difficult i mean she was home with the child the day the child died her husband was also there two hours prior to  honor no indication she wasn't passed out being drunk they found artin with full liquor bottles there your honor i would i would ask you to to be sure to read through her allocation carefully and look for what i just explained in terms of what she was acting as and specifically because i've looked at it repeatedly i have it right in front of me now so point to the exact words that you think indicate that she admitted to consciously disregarding a known risk well here's the thing in that allocation are her statement to the court i'm not sure she did but that's not necessarily the standard that we're looking at what we're looking at is whether or not her there's a whether they can overcome the presumption that her attorneys told her that it was both a negligence and a reckless disregard standard how can we know that when the attorneys haven't said that language straight out of the exact language that console said it was too confusing it was in other words the language in the plea agreement that the factual basis was drawn from the the uniform jury instruction and consult said that that's a bunch of you know a lot and it makes no sense we're not going to even allow that use that language anymore you were lying on that precise language s that she knew what she was there to complete that information doesn't really mean that it's so console was most concerned with the should have known language i think that's clear what's also also says is that when when a person says i disregarded that risk essentially that's reckless disregard language and so a bit of rest reckless rick disregard means you have to disregard a known risk and there's nothing true nothing in the plea agreement that ever has her admitting that she knew it doesn't say i knew and should have known it says i knew or should have known so she's pleading to the lower lowest intent there but she's also saying i disregarded that risk as if that risk i disregarded that risk that risk i should have known and we would read it the other way on her but yes i understand what you're saying well i mean a you know it's it's not a game i mean this is this somebody is life and the court has ruled that the very language in this  so confusing no one can understand it and it doesn't adequately notify people that they're dealing with the recklessness standard or just to be absolutely clear that the government nor do i think of this is a game or midsized as life as a game or something overcome the presumption that her attorneys explained to her standards is that the presumption rebutted the new mexico supreme court case that the law was totally and because the government is making the presumption that both standards are contained in the plea agreement and therefore they were both explained couldn't i mean when we look at the information that very doesn't even pretend to include a reckless standard and that the  and therefore she was informed of the mens rea that was required in this case i started this by saying this is a very narrow issue it's going to be up to the court to decide whether or not she was adequately formed and made a knowing involuntary plea in this case we would ask you to analyze our argument as well as the defendants and make the decision that's most appropriate have just a few moments left but i did want to mention just factually because it came up that her husband also spent time with this baby it's also in the record her grandmother was with her whenever she was at home with the baby during these the days or weeks leading up to and of the deaths i wanted to know to make that clear also she did drink yourself into oblivion and if she were the sole kate caretaker of that child maybe that would be sufficient because obviously that would be living up to a standard but she wasn't i also wanted to mention something i told the district court which is i think her statements messias the statements i should've known i should've known they do have to also be tempered by the fact she's a mother and every parent when something bad happens to your child that is a natural reaction i should have known i'm her mother and that's exactly what she says i should have known it's very different than i am responsible for somebody a co worker somebody else i should have known about that risk this is a parent and i think factually that has to play into what her state of mind was i think in if anything this size was accepting more responsibility than actually