State v. Green

Opinion

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1 IN THE SUPREME COURT OF THE STATE OF NEW MEXICO 2 Opinion Number: 3 Filing Date: April 21, 2025 4 NO. S-1-SC-39283 5 STATE OF NEW MEXICO,

6 Plaintiff-Appellant, 7 v.

8 DEBORAH GREEN, 9 Defendant-Appellee.

10 APPEAL FROM THE DISTRICT COURT OF CIBOLA COUNTY 11 James Lawrence Sanchez, District Judge

12 Raúl Torrez, Attorney General 13 Laurie Blevins, Assistant Attorney General 14 Felicity Strachan, Assistant Attorney General 15 Santa Fe, NM

16 for Appellant

17 Harrison & Hart, LLC 18 Carter B. Harrison IV 19 Nicholas T. Hart 20 Albuquerque, NM

21 for Appellee 1 OPINION 2 BACON, Justice. 3 {1} The State appeals from a decision of the district court granting Defendant 4 Deborah Green’s petition for habeas corpus pursuant to Rule 5-802 NMRA. See also 5 Rule 12-501 NMRA. In Montoya v. Ulibarri, we held the protections afforded by 6 the New Mexico Constitution allow a defendant to obtain habeas relief based on a 7 freestanding claim of actual innocence, independent of any constitutional violation 8 at trial. 2007-NMSC-035, ¶ 1, 142 N.M. 89, 163 P.3d 476. This case presents the 9 issue of whether such protections apply when a prisoner is convicted by way of a 10 plea agreement. With Montoya as our touchstone, we hold Defendant was entitled 11 to assert a freestanding claim of actual innocence following her conviction by plea. 12 However, we also hold the district court’s finding of actual innocence was not 13 supported by substantial evidence. Accordingly, we reverse the district court’s grant 14 of Defendant’s petition for writ of habeas corpus and remand for proceedings 15 consistent with this opinion. 16 I. FACTUAL BACKGROUND 17 {2} The grisly facts developed at the habeas hearing are disquieting, to say the 18 least. Defendant was the co-leader of a religious organization known as the 19 Aggressive Christian Missionary Training Corps (Corps). Considered by the Corps’s

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1 members to be a “prophetess” and an “Oracle of God,” Defendant had nearly 2 complete control over her disciples’ lives, including driving, finances, and the 3 authority to make all manner of decisions affecting the children who lived at the 4 compound in a remote and rural area of Cibola County, New Mexico. Defendant 5 also required members to cut off ties with their families. The children at the 6 compound did not have birth certificates, were not immunized, and were not 7 permitted to attend outside schools. Under Defendant’s close watch, medical 8 treatments at the compound were generally confined solely to those permitted by 9 Defendant, with access to outside professional medical care rigidly controlled. 10 {3} The genesis of the tragic events that gave rise to the charges in this case dates 11 back to sometime in late 2013 when most of the compound’s residents came down 12 with the flu. One of those residents, and the victim in this case, was a twelve-year- 13 old child, E.M., who lived at the compound with his mother. Although the other 14 residents recovered from their ailments in due course, E.M.’s symptoms persisted 15 and worsened, becoming more severe when Defendant prohibited E.M. from eating 16 for several days as punishment for his illness-related absences from the Corps’s 17 regularly scheduled communal meals. The right side of E.M.’s body eventually 18 became paralyzed, he went blind in his right eye, he lost the ability to speak or

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1 swallow, and he experienced seizures—all before he succumbed to his illness in 2 mid-January 2014. 3 {4} Neither Defendant nor anyone else timely reported E.M.’s death to the proper 4 authorities. Police first came to learn of his passing some two years later, in January 5 2016, when two other Corps members informed the police of E.M.’s death and 6 sought help to “escape” from the Corps’s compound. Police secured a warrant to 7 exhume E.M.’s body and the ensuing autopsy determined that the child’s cause of 8 death was a “probable infectious disease.” However, the autopsy report stopped 9 short of identifying “the exact cause of [E.M.’s] infection” due to the “advanced 10 decomposition” of the soft tissues of his body. 11 {5} We end our factual summary of the case by recognizing the aphorism that “[a] 12 cult is a religion with no political power.” James D. Tabor & Eugene V. Gallagher, 13 Epigraph to Why Waco? Cults and the Battle for Religious Freedom in America vii 14 (1995). Whatever truth lies in this saying, the habeas hearing evidence below showed 15 that the Corps as headed by Defendant was decidedly less a religion and more of a 16 cult in the sense it was “a deviant, fanatical group led by a charismatic person who 17 postures as a religious leader but who is in fact a self-serving individual who beguiles 18 people into following him or her, and who manipulates and uses them for his or her 19 own purposes.” Scott M. Lenhart, Hammering Down Nails: The Freedom of Fringe

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1 Religious Groups in Japan and the United States—Aum Shinrikyō and the Branch 2 Davidians, 29 Ga. J. Int’l & Compar. L. 491, 495 (2001) (internal quotation marks 3 and citation omitted). Either way, the Corps clearly was not the wholesome, 4 “disciplined, prayer-focused commun[ity]” Defendant portrayed it to have been in 5 her habeas petition. 6 II. PROCEDURAL BACKGROUND 7 {6} The facts relating to E.M.’s suffering and demise were by no means the only 8 source of potential criminal liability faced by Defendant in the underlying 9 indictment. Also included in the indictment were a series of kidnappings, criminal 10 sexual penetration of a minor, and child abuse counts relating to a young girl referred 11 to in the record as M.G., who had lived in the Corps’s compound until she was 12 removed by state authorities based on concerns that she “was malnourished and 13 suffered from rickets.” 1 After the charges relating to M.G. were severed from those 14 relating to E.M., a jury convicted Defendant of seven of the M.G.-related charges. 15 Defendant was sentenced to a 72-year prison term in relation to those crimes in 16 September 2018. Three weeks later, Defendant entered into a plea agreement for the

A state investigation revealed that M.G., although held out as Defendant’s

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granddaughter, was not in fact related to Defendant and was brought out of Uganda by Defendant’s adult daughter.

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1 case at hand, and pled no contest to, among other charges, one count of child abuse 2 resulting in great bodily harm to E.M. Pursuant to the plea, she was sentenced to a 3 prison term of 18 years, to run concurrent with the 72-year sentence from the M.G.- 4 related conviction. 5 {7} More than two years later, in November 2020, Defendant’s convictions for 6 the M.G.-related crimes were set aside as a result of a Brady violation by the State, 7 see Brady v. Maryland, 373 U.S. 83 (1963), and a new trial on those charges was 8 ordered. In lieu of retrial, the State dismissed the M.G.-related charges outright, “due 9 to [the] unavailability of essential witnesses.” 10 {8} On the heels of the Brady-based dismissal of the M.G. charges, Defendant 11 filed the underlying habeas petition arguing, first and foremost, that the taint of the 12 Brady violation found in connection with the charges related to M.G. somehow 13 extended to the previously severed E.M.-related charges as well. The district court 14 rejected that argument—properly it would appear—concluding as a matter of law 15 that the Brady violation that tainted the prosecution related to M.G. provided no 16 basis to invalidate the plea deal reached in E.M.’s case because the two matters 17 involved “a different alleged victim, different witnesses, different theories, different 18 evidence, and the evidence underlying the Brady violation on the [M.G.] case was 19 not probative of any of the issues related to the plea in [the E.M.] case.” The district

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1 court’s Brady-related habeas ruling, aside from its importance as a historical fact, is 2 not otherwise implicated in this appeal. 3 {9} Defendant’s habeas petition sought to vacate her E.M.-related plea on three 4 additional grounds: (1) that “the bare-bones factual basis” for the child abuse charge 5 set out in Defendant’s underlying plea colloquy was “inadequate as a matter of law”; 6 (2) that Defendant was “actually innocent” of any child abuse crime because her 7 conduct did “not meet [the operative] statutory elements”; and (3) that Defendant 8 received ineffective assistance of trial counsel (IAC). The district court rejected 9 Defendant’s challenge to the sufficiency of the plea colloquy and her IAC claim, and 10 those issues are not implicated in this appeal. 11 {10} But Defendant’s actual innocence claim secured a foothold in the district court 12 despite the absence of any proffer of new factual evidence to support her habeas 13 claim. Following a four-day hearing in January 2022 that showcased competing 14 expert testimony on the issues of medical neglect and causation, the district court 15 granted Defendant’s habeas petition based on her legal assertion of actual innocence. 16 In doing so, the district court found as fact that Defendant, who served as E.M.’s 17 “custodian” and “exercised extreme control over the child’s life and welfare, . . . 18 failed to seek medical attention for the child in a timely manner, and [thus] cause[d] 19 the child’s condition to worsen.” (Emphasis added.) Despite this explicit factual

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1 finding, the district court granted Defendant full habeas relief, concluding—without 2 analysis or citation to authority—that conduct causing a child’s medical condition 3 to worsen does not constitute “great bodily harm justifying a first degree felony 4 charge, as a matter of law.” As a result, the district court set aside Defendant’s plea, 5 dismissed the E.M.-related child abuse charge covered in the plea agreement, and 6 released Defendant from custody. 7 {11} The State now appeals to this Court as of right. See Rule 5-802(N)(1) 8 (authorizing the state to appeal an order granting a writ of habeas corpus); Rule 12- 9 102(A)(3) NMRA (requiring that “appeals from the granting of writs of habeas 10 corpus” be taken to this Court). 11 III. DISCUSSION 12 {12} When reviewing the propriety of a district court’s grant or denial of a writ of 13 habeas corpus, we review questions of law and questions of mixed fact and law de 14 novo, thus “assur[ing] that this Court maintains its role as arbiter of the law.” State 15 v. Cates, 2023-NMSC-001, ¶ 12, 523 P.3d 570 (citation omitted). However, 16 questions relating to a district court’s habeas-based findings of fact are subject to 17 substantial evidence review. Lukens v. Franco, 2019-NMSC-002, ¶ 15, 433 P.3d 18 288. “Substantial evidence is evidence that a reasonable mind would regard as

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1 adequate to support a conclusion.” Id. (internal quotation marks and citation 2 omitted).

3 A. A Freestanding Claim of Actual Innocence Is Properly Applied in the 4 Context of Plea Bargains

5 {13} First, we determine whether the freestanding claim of actual innocence 6 recognized by this Court in Montoya, 2007-NMSC-035, ¶ 24—a habeas appeal 7 involving a conviction rendered after trial—is equally applicable in circumstances 8 where, as here, the conviction under collateral attack is the product of a plea bargain. 9 In Montoya, we held that a freestanding claim of actual innocence must be predicated 10 upon discovery of new evidence. We further concluded that the petitioner making 11 such a claim “must convince the court by clear and convincing evidence that no 12 reasonable juror would have convicted him in light of the new evidence.” Id. ¶ 30. 13 {14} The State urges this Court to exclude from the reach of an actual innocence 14 claim all plea convictions, pointing to its concern for finality that is a hallmark of 15 the plea process. 16 {15} Instructive in addressing this issue is People v. Reed, in which our colleagues 17 on the Illinois Supreme Court determined that similar prosecution concerns over “the 18 interests of finality and certainty involving guilty pleas” were insufficient to 19 foreclose a defendant from advancing a freestanding claim of actual innocence. 2020 20 IL 124940, ¶¶ 41-42, 182 N.E.3d 64 (refusing “to turn a blind eye to the manifest

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1 injustice and failure of our criminal justice system that would result from the 2 continued incarceration of a demonstrably innocent person, even where a defendant 3 pleads guilty”). Though not unsympathetic to the state’s position, the Reed Court 4 ultimately concluded that the “[s]tate’s interests and policy concerns [were] more 5 appropriately accounted for and protected by [adopting a stringent review] standard 6 applicable to actual innocence claims involving defendants who plead guilty.” Id. ¶¶ 7 42, 48. To that end, the Reed Court adopted its own variant of the clear and 8 convincing standard that we employed in Montoya for evaluating “a successful 9 actual innocence claim” in the plea context. Reed, 2020 IL 124940, ¶ 49. Through 10 this measured approach, the Reed Court struck what it characterized as “an equitable 11 balance between the defendant’s constitutional liberty interest in remaining free of 12 undeserved punishment and the [s]tate’s interest in maintaining the finality and 13 certainty of plea agreements, while vindicating the purpose of the criminal justice 14 system to punish only the guilty.” Id. ¶ 50. 15 {16} Following the lead of the Illinois Supreme Court in Reed, we also conclude 16 the application of Montoya’s clear and convincing standard (like the “stringent” 17 standard in Reed) in adjudging the merits of a defendant’s actual innocence claim 18 successfully threads the needle in accommodating all the competing and legitimate 19 policy objectives identified above.

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1 {17} Further, and in accord with the Reed Court, we are not inclined to impose a 2 legal barrier that prevents a defendant from advancing a freestanding claim of actual 3 innocence when convicted by plea agreement. Two factors contribute to our 4 reluctance to do so. First, nothing in Montoya—or the scant few cases that, along 5 with Montoya, comprise our slowly developing actual innocence jurisprudence— 6 affirmatively calls into question the prudence or propriety of applying the 7 freestanding actual innocence doctrine in the realm of plea bargains. Viewed in this 8 vacuum, the lofty constitutional considerations that informed the Montoya Court’s 9 adoption of the actual innocence doctrine in the trial context compel the application 10 of the doctrine in the plea bargain setting as well. 2007-NMSC-035, ¶ 23 (“We 11 conclude that the conviction, incarceration, or execution of an innocent person 12 violates all notions of fundamental fairness implicit within the due process provision 13 of our state constitution.”); id. ¶ 24 (“[T]he incarceration of an innocent person [does 14 not] advance[] any goal of punishment, and if a prisoner is actually innocent of the 15 crime for which he is incarcerated, the punishment is indeed grossly out of 16 proportion to the severity of the crime.”). Aside from the finality concerns discussed 17 above, the State has offered no sound basis to withhold from those defendants 18 convicted by way of a plea the self-same constitutional protections Montoya

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1 appropriately made available to defendants convicted after trial—and we perceive 2 none. 3 {18} A contrary holding would needlessly depart from the sound view adopted by 4 several state jurisdictions that have considered the issue. See, e.g., Schmidt v. State, 5 909 N.W.2d 778, 783, 793-95 (Iowa 2018) (citing Montoya for the proposition that 6 “actually innocent people should have an opportunity to prove their actual 7 innocence,” and extending that opportunity equally to Iowa defendants “regardless 8 of whether [they] pled guilty or went to trial”); Reed, 2020 IL 124940, ¶¶ 33, 41 9 (pointing primarily to two characteristics of plea agreements—that they are neither 10 “structured to weed out the innocent or guarantee the factual validity of the 11 conviction” nor “more foolproof than full trials”—in concluding that “defendants 12 who plead guilty may assert an actual innocence claim” (internal quotation marks 13 and citations omitted)); see also People v. Schneider, 25 P.3d 755, 760 (Colo. 2001) 14 (en banc) (pointing to the common practice of defendants to “choose to enter guilty 15 pleas for reasons other than clear guilt” in rejecting the prosecution’s argument “that 16 a defendant who has entered a plea should not be entitled to postconviction relief in 17 the face of newly discovered evidence,” and branding that argument as one that fails 18 to foster a “just and fair outcome”).

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1 {19} In all, the principal policy objective underlying a freestanding claim of actual 2 innocence—to honor the constitutional imperative “prohibit[ing] the imprisonment 3 of one who is innocent of the crime for which he was convicted” in order to further 4 “the central purpose of [our] system of criminal justice[,] . . . to convict the guilty 5 and free the innocent,” Herrera v. Collins, 506 U.S. 390, 398 (1993)—applies with 6 equal force to convictions obtained through plea agreements as it does to convictions 7 after trial.

8 B. Defendant’s Actual Innocence Claim Lacks Merit and the District Court 9 Erred in Concluding Otherwise

10 {20} Now that it has been established that a defendant who enters into a plea 11 agreement is entitled to raise a defense of actual innocence, we look at the merits of 12 Defendant’s actual innocence claim. Defendant’s actual innocence claim advances 13 no new factual evidence. Instead, Defendant relies exclusively on a misguided legal 14 argument to support her habeas claim, asserting that the but-for causation standard 15 articulated by this Court in State v. Garcia, 2021-NMSC-019, ¶¶ 29-47, 488 P.3d 16 585—an opinion issued after Defendant’s entry of her plea—“marks a sea change in 17 medical-neglect causation law” that jettisons the lesser significant cause standard 18 previously set out by this Court in State v. Nichols. See 2016-NMSC-001, ¶ 40, 363 19 P.3d 1187 (indicating that the state, in order to prevail on a theory of medical-neglect 20 child abuse, must “put forth substantial evidence that . . . medical neglect was at least

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1 a significant cause of [the child’s] death or great bodily injury”). As Defendant 2 frames the claim in her habeas petition, this supposed change in the law precludes 3 the State from “adduc[ing] legally sufficient evidence—let alone a case that has any 4 chance of actually persuading any juror—to prove any conceivable theory charged.” 5 {21} Unfortunately for Defendant, the Garcia Court—by its own account—did not 6 announce a new rule of medical-neglect causation law and instead merely honed and 7 refined this Court’s existing precedent in Nichols. This is made evident in several 8 passages of the majority opinion in Garcia. See 2021-NMSC-019, ¶ 39 (emphasizing 9 that the Court was merely “confirm[ing] . . . that causation in a criminal medical 10 neglect case must include but-for causation and no less,” and thus “adher[ing] to our 11 long-established [but-for] standard,” a “foundational criminal principle” that Nichols 12 “did not abandon”); id. ¶ 40 (clarifying “that proof of causation under Nichols 13 requires that the medical neglect be a factual, but-for cause of the child’s death”); id. 14 ¶ 43 (explaining that, in Nichols, “we affirmed the but-for causation requirement in 15 cases of child abuse causing death, holding that evidence of possible causation is 16 insufficient,” and, in having done so, “are bound by the precedent established in 17 Nichols and . . . follow that standard in this case” (citation omitted)). 18 {22} The observations made and the actions taken by the Garcia Court— 19 confirming, clarifying, and following the precepts and holding of Nichols—hardly

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1 bespeak the announcement of a new potentially retroactive rule of law. See Rudolfo 2 v. Steward, 2023-NMSC-013, ¶ 9, 533 P.3d 728 (reiterating that an appellate 3 “opinion announces a new rule [only] if it breaks new ground, imposes new 4 obligations on the government, or was not dictated by precedent” (internal quotation 5 marks and citation omitted)). That being so, Garcia does not represent an intervening 6 change in the law that theoretically might provide a foundation for Defendant’s 7 actual innocence claim. See Santillanes v. State, 1993-NMSC-012, ¶ 36, 115 N.M. 8 215, 849 P.2d 358 (“It is within the inherent power of this Court to give its decision 9 prospective or retroactive application without offending constitutional principles.” 10 (citation omitted)). In light of our conclusion that Garcia did not announce a new 11 rule, Defendant is hard-pressed to explain how or why enforcement of the plea 12 agreement as written would offend her due process rights or right to be free from 13 cruel and unusual punishment as a result of her actual innocence. 2

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In the procedural posture of this case and considering the fact that Defendant has not demonstrated a change in the law, we need not and do not decide the broader issue hinted at by the State’s briefing: whether a change in law, standing alone and without newly presented evidence, ever can provide a valid basis for a freestanding claim of actual innocence in New Mexico. For our purposes, it is enough to acknowledge the dearth of state court case law supporting that premise. Indeed, research reveals only one reported state decision that has recognized the validity of a freestanding actual innocence claim in the absence of new evidence. We refer to In re Lester, 602 S.W.3d 469 (Tex. 2020), a wrongful-imprisonment compensation case. In Lester, the Texas Supreme Court concluded that the “outrageous” scenario there presented—involving a criminal defendant who pled guilty to conduct that did

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1 {23} In a separate but related vein, we emphasize that out-of-state jurisdictions that 2 recognize freestanding actual innocence claims generally equate the concept of 3 actual innocence with “factual innocence, not mere legal insufficiency of evidence 4 of guilt.” People v. Fraser, 84 N.Y.S.3d 553, 556 (N.Y. App. Div. 2018) (internal 5 quotation marks and citation omitted); accord Gould v. Comm’r of Corr., 22 A.3d 6 1196, 1206 (Conn. 2011) (“Actual innocence is not demonstrated merely by showing 7 that there was insufficient evidence to prove guilt beyond a reasonable doubt. . . . 8 Rather, actual innocence is demonstrated by affirmative proof that the petitioner did 9 not commit the crime.”); Turner v. Commonwealth, 694 S.E.2d 251, 261 (Va. Ct. 10 App. 2010) (stating that relief based on actual innocence is available “only to those 11 individuals who can establish that they did not, as a matter of fact, commit the crime 12 for which they were convicted and not those who merely produce evidence contrary 13 to the evidence presented at their criminal trial” (internal quotation marks and 14 citation omitted)); see also Jardine v. State, 556 P.3d 406, 419-21 (Haw. 2024) 15 (interpreting the term actual innocence, as used in Hawaii’s wrongful conviction

not constitute “a crime [when committed or] at any time during his criminal proceedings” because the charging statute had previously been declared unconstitutional—could only be viewed as involving a person who was “actually innocent in the same way that someone taking a stroll in the park is actually innocent of the crime of walking on a sidewalk. No such crime exists.” Id. at 471-73.

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1 compensation statute, to mean factual innocence). Reflecting this purely factual 2 focus, the “prototypical example” of actual innocence offered by the United States 3 Supreme Court is one “where the [s]tate has convicted the wrong person of the 4 crime.” Sawyer v. Whitley, 505 U.S. 333, 340 (1992), superseded by statute on other 5 grounds as stated in Atwood v. Shinn, 36 F.4th 834, 837 (9th Cir. 2022). 6 {24} Weighed against the narrow factual contours of the actual innocence doctrine, 7 it is clear the district court’s grant of habeas relief was error. From a procedural 8 perspective, given Defendant’s choice to confine her actual innocence claim to the 9 legal assertion that her conduct as it related to E.M. did “not meet [the operative] 10 statutory elements” of the charged child abuse crimes, it is questionable whether a 11 factual hearing was warranted in the first instance. And substantively, the district 12 court’s express finding that Defendant’s “fail[ure] to seek medical attention for 13 [E.M.] in a timely manner . . . cause[d] the child’s condition to worsen”—and, by 14 logical extension, resulted in the great bodily injuries that E.M. undisputedly 15 endured—was incompatible with a finding of actual innocence. Far from 16 exonerative in nature, the district court’s unchallenged causation finding directly 17 implicated Defendant in the commission of the crime. Montoya requires a defendant 18 to present new affirmative evidence of innocence, and further requires the defendant 19 to persuade the district court by clear and convincing evidence that no reasonable

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1 juror would have convicted them in light of the new evidence—a “rigorous” and 2 “demanding” standard. 2007-NMSC-035, ¶ 29. Given the total lack of new 3 affirmative evidence of innocence in this case, we hold substantial evidence does not 4 support the district court’s determination that Defendant satisfied Montoya’s actual 5 innocence standard. 6 IV. CONCLUSION 7 {25} For the foregoing reasons, we reverse the district court’s grant of Defendant’s 8 petition for writ of habeas corpus and remand for proceedings consistent with this 9 opinion. 10 {26} IT IS SO ORDERED.

11 12 C. SHANNON BACON, Justice

13 WE CONCUR:

14 15 MICHAEL E. VIGIL, Justice

16 17 JULIE J. VARGAS, Justice

18 19 BRIANA H. ZAMORA, Justice

20 DAVID K. THOMSON, Chief Justice, specially concurring

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1 THOMSON, Chief Justice (specially concurring). 2 {27} There should be no surprise in the argument advanced by Defendant in this 3 habeas proceeding when, in my view, this Court created a different standard for 4 causation for medical neglect claims in State v. Garcia, 2021-NMSC-019, ¶ 98, 488 5 P.3d 585 (Thomson, J., dissenting in part and concurring in part). While I concur in 6 the reasoning and conclusion in this case, I had hoped the Court would revisit its 7 departure from precedent in Garcia, specifically from the standard articulated in 8 State v. Nichols, 2016-NMSC-001, ¶ 40, 363 P.3d 1187 (“[T]he State was required 9 to put forth substantial evidence that [the defendant’s] neglect resulted in [his son’s] 10 death or great bodily harm, meaning that medical neglect was at least a significant 11 cause of his death or great bodily injury.” (internal quotation marks and citation 12 omitted)). 13 {28} In the dissent in Garcia, I expressed concerns that the “would have lived” 14 standard adopted by the majority requires that the state produce medical expert 15 testimony that, “to a reasonable degree of medical certainty[, the victim] would have 16 lived with earlier medical intervention.” Garcia, 2021-NMSC-019, ¶ 14; id. ¶ 60 17 (Thomson, J., dissenting in part and concurring in part). By requiring a showing that 18 the victim “would have lived” if medical care was provided, the majority created a 19 standard that the neglect must be the sole cause of death. “This elevated causation

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1 requirement overrules prior case law, announces a new standard, and retroactively 2 applies it.” Id. ¶ 98 (Thomson, J., dissenting in part and concurring in part). 3 {29} The majority rebuts Defendant’s arguments by asserting that “the Garcia 4 Court—by its own account—did not announce a new rule of medical-neglect 5 causation law and instead merely honed and refined this Court’s existing precedent 6 in Nichols.” Maj. op. ¶ 21. Despite the majority’s rhetorical self-assurance that the 7 Garcia Court did nothing to change the but for standard in Nichols, this Defendant’s 8 position in the tragic death of E.M. belies another conclusion.

9 10 DAVID K. THOMSON, Chief Justice