State v. Leilani E. Neumann

2013 WI 58

SUPREME COURT OF WISCONSIN
CASE NO.: 2011AP1044-CR & 2011AP1105-CR
COMPLETE TITLE: State of Wisconsin,
Plaintiff-Respondent,
v.
Dale R. Neumann,
Defendant-Appellant.
------------------------------------------------
State of Wisconsin,
Plaintiff-Respondent,
v.
Leilani E. Neumann,
Defendant-Appellant.

ON CERTIFICATION FROM THE COURT OF APPEALS

OPINION FILED: July 3, 2013
SUBMITTED ON BRIEFS:
ORAL ARGUMENT: December 4, 2012

SOURCE OF APPEAL:
COURT: Circuit
COUNTY: Marathon
JUDGE: Vincent K. Howard

JUSTICES:
CONCURRED:
DISSENTED: PROSSER, J., dissents. (Opinion filed.)
NOT PARTICIPATING:

ATTORNEYS:
For the defendants-appellants, there were briefs in the
court of appeals by Steven L. Miller and Miller & Miller, River
Falls, and Byron C. Lichstein, Erin K. Deeley, with assistance
from law student practitioner Willam R. Ackell, and Frank J.
Remington Center, Madison. Oral arguments by Mr. Lichstein and
Mr. Miller.

For the plaintiff-respondent, the cause was argued by Maura
F.J. Whelan, assistant attorney general, with whom on the briefs
in the court of appeals was J.B. Van Hollen, attorney general.
 2013 WI 58
NOTICE
This opinion is subject to further
editing and modification. The final
version will appear in the bound
volume of the official reports.
No. 2011AP1044-CR & 2011AP1105-CR
(L.C. No. 2008CF324 & 2008CF323)

STATE OF WISCONSIN : IN SUPREME COURT

State of Wisconsin,

Plaintiff-Respondent,

v.

Dale R. Neumann,

Defendant-Appellant.
FILED
________________________________
JUL 3, 2013
State of Wisconsin,
Diane M. Fremgen
Clerk of Supreme Court
Plaintiff-Respondent,

v.

Leilani E. Neumann,

Defendant-Appellant.

APPEAL from judgments and orders of the Circuit Court for

Marathon County, Vincent K. Howard, Judge. Affirmed.

¶1 SHIRLEY S. ABRAHAMSON, C.J. Eleven-year-old Madeline

Kara Neumann died tragically on Easter Sunday, March 23, 2008,

from diabetic ketoacidosis resulting from untreated juvenile
 No. 2011AP1044-CR & 2011AP1105-CR

onset diabetes mellitus.1 Kara died when her father and mother,

Dale R. Neumann and Leilani E. Neumann, chose to treat Kara's

undiagnosed serious illness with prayer, rather than medicine.

Each parent was charged with and convicted of the second-degree

reckless homicide of Madeline Kara Neumann in violation of Wis.

Stat. § 940.06(1) (2009-10),2 in separate trials with different

juries.

¶2 Each parent appealed from the judgment of conviction

of the Circuit Court for Marathon County, Vincent K. Howard,

Judge.3

¶3 The court of appeals consolidated the cases for

appellate decision only.4 The appeals are before us on

certification from the court of appeals pursuant to Wis. Stat.

1
Madeline Kara Neumann was called Kara during her life and
throughout the trials and will be referred to as Kara in this
opinion.
2
Although the jury trials occurred in 2009, all references
to the Wisconsin Statutes are to the 2009-10 version unless
otherwise indicated, as it is the same as the version of the
statutes in effect at the time of trial.

The cases were tried separately upon the State's motion.
3
Each parent also sought postconviction relief pursuant to
Wis. Stat. §§ 809.30 and 974.02. The circuit court denied the
motions for postconviction relief. These orders are also the
subject of this appeal.
4
The parents were each represented by their own counsel at
their separate trials and in this court, and their respective
counsel filed separate briefs. Counsel for the parents divided
their 35-minute oral argument, each attorney handling an issue
on behalf of both parents as well as the issues distinctive to
the parent whom counsel represented.

2
 No. 2011AP1044-CR & 2011AP1105-CR

§ 809.61 to "determine the scope of the prayer treatment

exception and to inform trial courts regarding the appropriate

jury instructions when that exception is raised in a reckless

homicide case."5

¶4 The first issue, common to both parents, is whether

their convictions should be reversed (and the charges dismissed)

on the ground that the prosecutions for second-degree reckless

homicide under Wis. Stat. § 940.06(1) were unconstitutional,

when Wis. Stat. § 948.03(6) permitted them to treat Kara's

illness with prayer and protected them from a criminal charge

under § 948.03, the criminal child abuse statute.6

¶5 The parents contend that their treatment through

prayer is expressly protected by one statute, Wis. Stat.

§ 948.03(6) (protection for treatment through prayer),7 but

5
State v. Dale R. Neumann, No. 2011AP1044-CR, & State v.
Leilani E. Neumann, No. 2011AP1105-CR, unpublished certification
(Wis. Ct. App. May 1, 2012).

This consolidated appeal raises several issues. Some
issues are common to the convictions of both parents, although
each parent has employed different arguments or reasoning in
this court. To the extent that an issue affects both parents,
we take into account both of their positions in discussing and
deciding the issue. To the extent that an issue affects only
one parent, we identify and decide the issue accordingly.
6
Wis. Stat. § 948.03. The title of the statute is
"Physical abuse of a child." We will refer to § 948.03 as the
criminal child abuse statute to distinguish it from other state
or federal statutes that relate to child abuse.
7
Wisconsin Stat. § 948.03(6) reads:

Treatment through prayer. A person is not guilty of
an offense under this section [§ 948.03] solely
because he or she provides a child with treatment by
3
 No. 2011AP1044-CR & 2011AP1105-CR

criminalized by another, § 940.06(1) (second-degree reckless

homicide), and that the statutes fail to provide them with fair

notice, in violation of their due process rights, that they

could be held criminally liable should their treatment through

prayer fail and their child die.8

¶6 Each parent also argues alternative grounds of

prejudicial trial error. The arguments for reversal of the

convictions and for a remand for new trials are as follows:

• Both parents argue that the real controversy was not

fully tried because of erroneous jury instructions and

because of counsels' defective performance.

• The father argues that the jury was objectively biased

because it was informed that Kara's mother had

spiritual means through prayer alone for healing in
accordance with the religious method of healing
permitted under s. 48.981(3)(c)4. or 448.03(6) in lieu
of medical or surgical treatment.

The attorneys referred to Wis. Stat. § 948.03(6), the
provision protecting treatment through prayer, as a privilege,
although they acknowledged it could be characterized as an
exception, a defense, or an immunity. We view it as a
protection from prosecution under Wis. Stat. § 948.03.
8
The father's brief appears to argue that the reckless
homicide statute is facially unconstitutional in combination
with the treatment-through-prayer provision, although at times
his argument appears to be an "as-applied" challenge. The
mother's brief argues that the reckless homicide statute is
unconstitutional as applied to her circumstances. An as-applied
argument was made at oral argument. Nevertheless, at times the
implication of the mother's as-applied argument is that the
interplay of the statutes renders the statutes facially
unconstitutional.

4
 No. 2011AP1044-CR & 2011AP1105-CR

previously been convicted of second-degree reckless

homicide for Kara's death.

¶7 For the reasons set forth, we conclude that the

second-degree reckless homicide statute and the criminal child

abuse statute provide sufficient notice that the parents'

conduct could have criminal consequences if their daughter died.

We further conclude that the jury instructions were not

erroneous; that trial counsels' performance was not ineffective

assistance of counsel; that the controversy was fully tried; and

that the jury in the father's case was not objectively biased.

¶8 Accordingly, we affirm the judgments of convictions

and orders denying postconviction relief.

¶9 Here is a roadmap of this decision for ease of

reference:

I. The facts. ¶¶10-30.

II. Due Process Fair Notice Challenge. ¶¶31-86.

A. Due process requires fair notice of the crime.
¶¶32-37.

B. The four statutes at issue are Wis. Stat.
§§ 940.06(1), 948.03(3)(a), 948.03(3)(c), and
948.03(6). ¶¶38-46.

C. The parents' challenge to the constitutionality
of the statutes is that the statutes do not
provide a definite enough standard of conduct
and that one criminalizes the same conduct the
other protects. ¶¶47-61.

D. The statutes fulfill the due process fair
notice constitutional requirement. ¶¶62-86.
III. The Real Controversy Was Fully Tried. ¶¶87-147.

5
 No. 2011AP1044-CR & 2011AP1105-CR

A. The challenge to jury instructions on parent's
duty to provide medical care. ¶¶93-121.

1. A parent has a legal duty to provide
medical care to his or her child. ¶¶103-
111.

2. The instructions on a parent's legal
duty do not violate a parent's
constitutional right to direct the care of
his or her child. ¶¶112-117.

3. The statutory provision protecting
treatment through prayer, Wis. Stat.
§ 948.03(6), does not negate the legal duty
to provide medical care in a second degree
reckless homicide prosecution. ¶¶118-121.

B. The challenge to jury instructions on religious
belief. ¶¶122-127.

C. The challenge to the circuit court's refusal to
instruct on sincere religious belief. ¶¶128-
140.

D. The Challenge that counsels' performances were
ineffective assistance of counsel and resulted
in the real controversy not being fully tried.
¶¶141-147.

IV. The Father's Claim That the Jurors Were Objectively
Biased. ¶¶148-160.
I

¶10 According to the undisputed testimony, the facts

relating to the child's health and the parents' conduct were

essentially the same in each jury trial and are set forth here.

¶11 Madeline Kara Neumann died at 3:30 p.m. on Sunday,

March 23, 2008, from diabetic ketoacidosis resulting from

6
 No. 2011AP1044-CR & 2011AP1105-CR

untreated juvenile onset diabetes mellitus.9 Kara had suffered

gradually worsening symptoms for a few weeks before her death,

leading to frequent thirst and urination, dehydration, weakness,

and exhaustion, yet to the casual observer, as the State and

parents stipulated, Kara would have appeared healthy as late as

the Thursday before she died.

¶12 On the Friday night before she died, Kara was too

tired to finish her homework and ate her dinner in her bedroom.

On Saturday, the day before her death, Kara slept all day after

asking to stay home from work at the family's coffee shop. When

her mother returned home from work Saturday afternoon, Kara was

pale and her legs were skinny and blue. Her mother knew that

something was wrong and called her husband into the room. The

parents began rubbing Kara's legs and praying for her.

¶13 The Neumanns do not belong to any identifiable church

or religious organization, but identify as Pentecostals. They

believe that there are spiritual root causes to sickness and

9
Although the instant cases are the first in Wisconsin to
consider the effect of a treatment-through-prayer provision on
the criminal culpability of a parent for a child's death,
numerous other jurisdictions have considered this issue. Three
of these jurisdictions have considered the issue when the child
died of the same illness as Kara, diabetic ketoacidosis. See,
e.g., Hermanson v. State, 604 So. 2d 775 (Fla. 1992); State v.
McKown, 475 N.W.2d 63 (Minn. 1991); Commonwealth v. Nixon, 718
A.2d 311 (Pa. Super. Ct. 1998).

This court has once before considered a case in which this
illness had fatal consequences, but that case involved a
physician's liability for medical malpractice for failing to
diagnose and treat the disease in a five-year-old child. See
Maurin v. Hall, 2004 WI 100, 274 Wis. 2d 28, 682 N.W.2d 866.

7
 No. 2011AP1044-CR & 2011AP1105-CR

that their prayer and strong religious beliefs will cure any

health problems they encounter.

¶14 Kara's parents had not always relied only on spiritual

healing in the past. All of their children were born in a

hospital and vaccinated. The father went to a chiropractor for

some ten years for back pain but believed that he was relieved

of his pain through prayer. The parents decided not to go to

doctors for treatment anymore, out of a belief that they would

be "putting the doctor before God," amounting to idolatry and

sin.

¶15 The father testified that he believed that his

family's overall health had improved since the family had

stopped going to doctors, and thus, when the parents realized

that Kara was ill on Saturday afternoon, they began to pray.

¶16 Soon after the parents began to pray, they enlisted

the help of others, calling family and friends asking them to

pray for Kara as well. The father sent a mass e-mail at 4:58

p.m. on Saturday to a listserv of like-minded people, which
read:

Subject: Help our daughter needs emergency prayer!!!

We need agreement in prayer over our youngest
daughter, who is very weak and pale at the moment with
hardly any strength.
¶17 The parents testified that they did not know

specifically what was wrong with Kara, thinking it could be a

fever or the flu, but they knew it was serious and needed

attention, so they prayed. When informed of Kara's condition,

8
 No. 2011AP1044-CR & 2011AP1105-CR

Kara's maternal grandmother suggested they take her to a doctor.

The mother replied, "No, she'll be fine, God will heal her."

¶18 When the family took a break from prayer to eat dinner

Saturday evening, Kara remained in bed. While the family ate,

Kara went to use the bathroom. She fell off the toilet. Her

father picked her up and carried her to the couch in the living

room where they could watch her. The family stayed up late

praying over Kara, until finally, the parents went to sleep

because they "were exhausted . . . [from the] non-stop praying

and just continually trusting in the Lord."

¶19 According to trial testimony, by the time the family

went to sleep Saturday night, Kara was unable to walk or talk.

Kara's brother Luke testified that he believed Kara was in a

coma. Kara's siblings stayed with her throughout the night

while she lay limp and unresponsive on the couch.

¶20 When her father awoke early Sunday morning, around

5:00 a.m., Kara was still pale, limp, unconscious, and

unresponsive, although she sometimes moaned in response to
friends and family members calling her name. Her breathing was

less labored than it had been the previous night.
¶21 Kara's mother continued to call friends and relatives

to tell them about Kara's condition and ask for prayers.
Various people came by the home on Sunday to pray and later, in

trial testimony, witnesses characterized Kara's condition as a
coma. Still, family and friends testified that everyone was at

complete peace and did not sense any danger in Kara's condition.

9
 No. 2011AP1044-CR & 2011AP1105-CR

¶22 Kara's father testified that death was never on their

minds. He testified that he knew Kara was sick but was "never

to the alarm of death," and even after she died, her father

thought that Jesus would bring Kara back from the dead, as he

did with Lazarus.

¶23 The parents and friends testified that the parents

took tangible steps to help Kara. The mother tried to feed Kara

soup and water with a syringe, but the liquid just dribbled out

of Kara's mouth. The father tried to sit Kara up, but she was

unable to hold herself up. At some point, Kara involuntarily

urinated on herself while lying unresponsive on the couch, so

they carried her upstairs and gave her a quick sponge bath while

she lay on the bathroom floor.

¶24 At one point, Kara's maternal grandfather suggested by

telephone that they give Kara Pedialyte, a nutritional

supplement, in order to maintain the nutrients in her body. The

mother responded that giving Kara Pedialyte would be taking away

the glory from God. Kara's mother had told another visiting
friend that she believed that Kara was under "spiritual attack."

¶25 Friends Althea and Randall Wormgoor testified that
they arrived at the Neumanns' home on Sunday at approximately

1:30 p.m. The Wormgoors saw that Kara was extremely ill and
nonresponsive. Her eyes were partially open but they believed

she needed immediate medical attention. Randall Wormgoor pulled
Kara's father aside and told him that if it was his daughter, he

would take her to the hospital. The father responded that the

idea had crossed his mind, and he had suggested it to his wife,
10
 No. 2011AP1044-CR & 2011AP1105-CR

but she believed Kara's illness was a test of faith for their

family and that the Lord would heal Kara.

¶26 During this conversation, Althea Wormgoor noticed a

distinct twitch from Kara's mouth, which startled her. Thinking

that Kara had stopped breathing, Randall Wormgoor called 911.

Unbeknownst to those in the home, police and emergency medical

personnel were already en route to the Neumann home, having

received a call from Ariel Neff, the mother's sister-in-law in

California, explaining that Kara might be in a coma and that her

parents refused to take her to a doctor. Ariel Neff's call was

recorded at 2:33 p.m. on Sunday

¶27 Police and emergency medical personnel arrived to find

the parents praying over their extremely skinny, pulseless

daughter. The paramedics transported Kara to the hospital,

where attempts to revive her were unsuccessful. In the

ambulance, the paramedics noticed a fruity odor, a known symptom

of untreated diabetes. They took a blood sample to measure her

blood sugar but her blood sugar level was too high for the
monitor to read. Reports from emergency medical personnel and

doctors indicated that Kara appeared extremely skinny and
malnourished, with a bluish-gray skin color, and was dehydrated

and skeleton-like, with a pronounced pelvic bone, eye sockets,
cheekbones, and ribs.

¶28 According to the emergency room doctor's testimony,
Kara was "cachectic", which is a term normally used to describe

a cancer patient——very malnourished, thin, and smaller than you

expect of the age. The emergency room doctor diagnosed Kara's
11
 No. 2011AP1044-CR & 2011AP1105-CR

cause of death as diabetic ketoacidosis, which was later

confirmed by the medical examiner's autopsy.

¶29 The emergency room doctor also testified that if a

child is brought into the emergency room suffering from diabetic

ketoacidosis but is still breathing and still has a heartbeat,

the prognosis for survival is very good. A pediatric

endocrinologist testified that, if treated, diabetic

ketoacidosis has a 99.8% survival rate. He testified that

Kara's disease was treatable and her chances of survival were

high until "well into the day of her death."

¶30 Each parent was charged with, and convicted of,

second-degree reckless homicide in connection with Kara's death.

Each was sentenced to 180 days in jail and ten years of

probation. Each was sentenced to serve 30 days in jail each

year for six years, alternating the months of March and

September with the other parent. The circuit court granted a

motion to stay the jail sentence pending this appeal.

II
¶31 The parents argue that their convictions for choosing

treatment through prayer violate due process fair notice
requirements. In Part A., we first explain the constitutional

due process fair notice requirement. In Part B., we then set
forth the four statutes at issue, Wis. Stat. §§ 940.06(1),

948.03(3)(a), 948.03(3)(c), and 948.03(6). Next, in Part C., we
lay out the parties' challenge to the constitutionality of the

statutes. Finally, in Part D., we conclude that the statutes

fulfill the constitutional due process fair notice requirement.
12
 No. 2011AP1044-CR & 2011AP1105-CR

A

¶32 The Fourteenth Amendment of the United States

Constitution assures that no person shall be deprived of "life,

liberty, or property without due process of law."10 Whether

state action constitutes a violation of due process presents a

question of law, which this court decides independently of the

circuit court but benefiting from its analysis.11

¶33 The due process issue in the instant case, as we

explained previously, is whether the applicable statutes are

definite enough to provide a standard of conduct for those whose

activities are proscribed.12 Fair notice is part of the due

process doctrine of vagueness. "[A] statute which either

forbids or requires the doing of an act in terms so vague that

men of common intelligence must necessarily guess at its meaning

and differ as to its application violates the first essential of

due process of law."13

10
Article I, Section 1 of the Wisconsin Constitution has
been interpreted as a due process provision. Reginald D. v.
State, 193 Wis. 2d 299, 306-07, 533 N.W.2d 181 (1995).
11
State v. Sorenson, 2002 WI 78, ¶25, 254 Wis. 2d 54, 646
N.W.2d 354.
12
Kolender v. Lawson, 461 U.S. 352, 357-58 (1983); Grayned
v. City of Rockford, 409 U.S. 104, 108 (1972); Elections Bd. v.
Wis. Mfrs. & Commerce, 227 Wis. 2d 650, 676-77, 597 N.W.2d 721
(1999); State v. Nelson, 2006 WI App 124, ¶36, 294 Wis. 2d 578,
718 N.W.2d 168.
13
Connally v. Gen. Constr. Co., 269 U.S. 385, 391 (1926).

13
 No. 2011AP1044-CR & 2011AP1105-CR

¶34 A challenged statute "need not define with absolute

clarity and precision what is and is not unlawful conduct."14 "A

certain amount of vagueness and indefiniteness is inherent in

all language and, if not permitted, nearly all penal statutes

would be void."15 "A fair degree of definiteness is all that is

required."16

¶35 Justice Holmes observed, "[T]he law is full of

instances where a man's fate depends on his estimating rightly,

that is, as the jury subsequently estimates it, some matter of

degree."17 The Justice wisely wrote that statutes cannot be

exactly precise in drawing lines:

Wherever the law draws a line there will be cases very
near each other on opposite sides. The precise course
of the line may be uncertain, but no one can come near
it without knowing that he does so, if he thinks, and
if he does so, it is familiar to the criminal law to
make him take the risk.18
¶36 The United States Supreme Court has explained that the

degree of vagueness that the Constitution tolerates and the

relative importance of fair notice and fair enforcement depend

14
State v. Pittman, 174 Wis. 2d 255, 276-77, 496 N.W.2d 74
(1993) (quoting State v. Hurd, 135 Wis. 2d 266, 272, 400
N.W.2d 42 (Ct. App. 1986)).
15
State v. Ehlenfeldt, 94 Wis. 2d 347, 355, 288 N.W.2d 786
(1980).
16
State v. Courtney, 74 Wis. 2d 705, 710, 247 N.W.2d 714
(1976) (quoted source omitted).
17
Nash v. United States, 229 U.S. 373, 377 (1913).
18
United States v. Wurzbach, 280 U.S. 396, 399 (1930).

14
 No. 2011AP1044-CR & 2011AP1105-CR

in part on the nature of the enactment.19 Enactments with civil

rather than criminal penalties are often granted greater

tolerance because the consequences of imprecision are

qualitatively less severe.20

¶37 Relevant to our inquiry in the present case, the Court

has recognized that a scienter requirement may mitigate a law's

vagueness, especially with respect to the adequacy of notice to

the actor that his or her conduct is prohibited.21 A scienter

requirement may mitigate a criminal law's vagueness by ensuring

that it punishes only those who are aware their conduct is

unlawful.22 Nevertheless, "criminal responsibility should not

attach where one could not reasonably understand that his

contemplated conduct is proscribed."23

B

19
Village of Hoffman Estates v. Flipside, Hoffman Estates,
Inc., 455 U.S. 489, 499 (1962).
20
Id. (citing Barenblatt v. United States, 360 U.S. 109,
137 (1959) (Black, J., dissenting, joined by Warren, C.J., &
Douglas, J.); Winters v. New York, 333 U.S. 507, 515 (1948)).
21
Hoffman Estates, 455 U.S. at 499 (citing Colautti v.
Franklin, 439 U.S. 379, 395 (1979); Boyce Motor Lines v. United
States, 342 U.S. 337, 342 (1952); Screws v. United States, 325
U.S. 91, 101-103 (1945) (plurality opinion); Note, The Void-for-
Vagueness Doctrine in the Supreme Court, 109 U. Pa. L. Rev. 67,
87 n.98 (1960)).
22
United States v. Gaudreau, 860 F.2d 357, 360 (10th Cir.
1988) (citing Screws, 325 U.S. at 101-04 (plurality opinion)).
23
United States v. Nat'l Dairy Prods. Corp., 372 U.S. 29,
32-33 (1963).

15
 No. 2011AP1044-CR & 2011AP1105-CR

¶38 In considering whether the criminal statutes at issue

satisfy the requirements of due process fair notice, we begin by

setting forth the texts of the statutes involved.

¶39 The parents were convicted of violating Wis. Stat.

§ 940.06(1), the second-degree reckless homicide statute. This

statute is a single sentence that governs all persons, not only

parents, and provides as follows:

Sec. 940.06(1) Second-degree reckless homicide.
Whoever recklessly causes the death of another human
being is guilty of a Class D Felony (emphasis added).
¶40 "Recklessly" is defined in Wis. Stat. § 939.24(1) to

mean

that the actor creates an unreasonable and substantial
risk of death or great bodily harm to another human
being and the actor is aware of that
risk . . . (emphasis added).
¶41 "Great bodily harm" is defined in Wis. Stat.

§ 939.22(14) as "bodily injury which creates a substantial risk

of death, or" other enumerated physical injuries.

¶42 We now turn to Wis. Stat. § 948.03, the criminal child

abuse statute.

¶43 The text of the criminal child abuse statute, Wis.

Stat. § 948.03(1), (3)(a), and (3)(c), reads as follows:

(1) Definitions. In this section, "recklessly" means
conduct which creates a situation of unreasonable
risk of harm to and demonstrates a conscious
disregard for the safety of the child.
. . . .

(3) Reckless causation of bodily harm.

16
 No. 2011AP1044-CR & 2011AP1105-CR

(a) Whoever recklessly causes great bodily harm
to a child is guilty of a Class E Felony.
. . . .

(c) Whoever recklessly causes bodily harm24 to a
child by conduct which creates a high
probability of great bodily harm is guilty
of a Class H Felony (emphasis and footnote
added).
¶44 The last statute at issue is Wis. Stat. § 948.03(6), a

provision in the criminal child abuse statute that protects

persons who engage in treatment through prayer from prosecution

for criminal child abuse under Wis. Stat. § 948.03. Wisconsin

Stat. § 948.03(6) provides as follows:

948.03(6) Treatment through prayer. A person is not
guilty of an offense under this section [§ 948.03]
solely because he or she provides a child with
treatment by spiritual means through prayer alone for
healing in accordance with the religious method of
healing permitted under s. 48.981(3)(c)4.25 or
26
448.03(6) in lieu of medical or surgical treatment.
(Footnotes added.)

24
"'Bodily harm' means physical pain or injury, illness, or
any impairment of physical condition." Wis. Stat. § 939.22(4).
25
The legislature limited this exception to religious
healing methods permitted in Wis. Stat. § 48.981(3)(c)4., which
provides that the government's "determination that abuse or
neglect has occurred may not be based solely on the fact that
that the child's parent . . . in good faith selects and relies
on prayer or other religious means for treatment of disease or
for remedial care of the child."
26
This provision refers specifically to the practice of
Christian Science. The parents are not practitioners of this
religion.

17
 No. 2011AP1044-CR & 2011AP1105-CR

¶45 Section 948.03(6) was enacted in 1987 at the behest of

the Christian Science Committee on Publication in Wisconsin.27

Provisions protecting persons who resort to treatment through

prayer from prosecution for child abuse had previously been

adopted in the 1970s by numerous states, including Wisconsin, at

the behest of the federal government.28

27
See Letters from George E. Jeffrey, Christian Science
Committee on Publication for Wisconsin, to Assemblyman John D.
Medinger, Wis. State Assembly (Feb. 27, 1987) & Senator Brian D.
Rude, Wis. State Senate (July 15, 1987) (suggesting language
very similar to the current Wis. Stat. § 948.03(6) be included
in an amendment to Senate Bill 203 relating to the abuse of
children); Memorandum from Laurie E. Smith, Legislative
Assistant to Senator Brian D. Rude, Wis. State Senate, to Bruce
Feustal, Senior Attorney, Legislative Reference Bureau (July 22,
1987) (requesting an amendment to Senate Bill 203 "which uses
the language included in Mr. Jeffrey's letter") (Drafting File,
1987 Act 332, Legislative Reference Bureau, Madison, Wis.).
28
The protection of persons who resort to treatment through
prayer, Wis. Stat. § 48.981(3)(c)3., was adopted in 1977. § 4,
ch. 355, Laws of 1977. Many states, including Wisconsin,
complied with the 1974 federal Child Abuse Prevention and
Treatment Act (CAPTA), which in part required states to amend
their child abuse and neglect statutes to include an exemption
for spiritual healing. If a state failed to amend its statutes
to include such an exemption, it would be ineligible to receive
the funds appropriated by Congress to fulfill various
objectives, including establishing preventative programs to
reduce the incidence of child abuse.

A counter-campaign urging repeal of such statutory
exemptions ensued, and Congress revised the law in 1983,
revoking the requirement that states enact these treatment-
through-prayer provisions in order to receive federal funding.
Still, the laws have remained on the books in many states.

18
 No. 2011AP1044-CR & 2011AP1105-CR

¶46 In order to compare the four statutes more easily, we

insert the defined terms into the text of each statute and

reprint the four statutes below:

Wis. Stat. § 940.06(1) Whoever creates an unreasonable
and substantial risk of death or bodily injury which
creates a substantial risk of death, or other
enumerated physical injuries, to another human being
and is aware of that risk and causes the death of
another human being is guilty of a Class D Felony.

Wis. Stat. § 948.03(3)(a) Whoever creates a situation
of unreasonable risk of harm to and demonstrates a
conscious disregard for the safety of the child and
causes bodily injury which creates a substantial risk
of death, or other enumerated physical injuries, to a
child is guilty of a Class E Felony.

Wis. Stat. § 948.03(3)(c) Whoever creates a situation
of unreasonable risk of harm to and demonstrates a
conscious disregard for the safety of a child and
causes bodily harm to a child by conduct which creates
a high probability of bodily injury which creates a
substantial risk of death, or other enumerated
physical injuries, is guilty of a Class H Felony.

Wis. Stat. § 948.03(6) Treatment through prayer. A
person is not guilty of an offense under this section
[§ 948.03] solely because he or she provides a child
with treatment by spiritual means through prayer alone
for healing in accordance with the religious method of
healing permitted under s. 48.981(3)(c)4. or 448.03(6)
in lieu of medical or surgical treatment.

For discussions of the federal law and the responses of the
states, see, e.g., Janna C. Merrick, Spiritual Healing, Sick
Kids and the Law: Inequities in the American Healthcare System,
29 Am. J.L. & Med. 269, 277-80 (2003); Paula A. Monopoli,
Allocating the Costs of Parental Free Exercise: Striking a New
Balance Between Sincere Religious Belief and a Child's Right to
Medical Treatment, 18 Pepp. L. Rev. 319, 330-34 (1991); Rebecca
Williams, Note, Faith Healing Exceptions Versus Parens Patriae:
Something's Gotta Give, 10 First Amend. L. Rev. 692, 694-96,
698-713 (2012).

19
 No. 2011AP1044-CR & 2011AP1105-CR

C

¶47 We now set forth the parties' due process fair notice

challenge.

¶48 The parents do not assert that Wis. Stat. § 948.03(6),

the treatment-through-prayer provision, applies in and of itself

to the second-degree reckless homicide statute. Such an

argument would fly in the face of the text of Wis. Stat.

§ 948.03(6).

¶49 The text of the treatment-through-prayer provision

carefully limits its application only to charges under the

criminal child abuse statute, that is, to child abuse

prosecutions under Wis. Stat. § 948.03. The treatment-through-

prayer provision explicitly states it applies only to "an

offense under this section."

¶50 This treatment-through-prayer provision by its very

terms thus applies only to charges of criminal child abuse under

Wis. Stat. § 948.03. On its face, the treatment-through-prayer

provision does not immunize a parent from any criminal liability
other than that created by the criminal child abuse statute.

There is no cross-reference between the criminal child abuse
statute and the second-degree reckless homicide statute. No one

reading the treatment-through-prayer provision should expect
protection from criminal liability under any other statute.29

29
The parents do not claim that they read and relied on the
statutes before treating Kara with prayer. Indeed the unstated
premise of the parents' arguments is that the parents' actual
knowledge of the statutes before Kara's death is irrelevant.

20
 No. 2011AP1044-CR & 2011AP1105-CR

¶51 Furthermore, Wis. Stat. § 948.03(6), the provision

protecting parents for treatment through prayer, is written in

narrow language. It includes the limiting word "solely." "A

person is not guilty of an offense under this section [§ 948.03]

solely because he or she provides a child with treatment by

spiritual means through prayer alone . . . ." The word "solely"

has not been interpreted in Wisconsin in this context, but other

jurisdictions have interpreted similar provisions as signifying

that treatment through prayer does not create blanket protection

from criminal prosecution for child abuse for a parent who

treats his or her child with prayer.30

The accepted legal fiction is that every person is expected
to know the law. Ignorance of the law is not ordinarily a
defense. Putnam v. Time Warner Cable of S.E. Wis., 2002 WI 108,
¶13 n.4, 255 Wis. 2d 447, 649 N.W.2d 626 (Wisconsin employs the
mistake of law doctrine which says that every person is presumed
to know the law and cannot claim ignorance of it as a defense);
Byrne v. State, 12 Wis. 519 (1860) ("[D]efendants are presumed
to know the law, and ignorance of the law, even if proved, would
be no excuse").

Actual notice of the statutes may be irrelevant in applying
the concept of fair notice. Courts require the law be clear so
that those who consult the law are not confused or misled.
Justice Holmes observed that "[a]lthough it is not likely that a
criminal will carefully consider the text of the law before he
murders or steals, it is reasonable that a fair warning should
be given to the world in language that the common world will
understand, of what the law intends to do if a certain line is
passed." McBoyle v. United States, 283 U.S. 25, 27 (1931).
30
The word "solely" has been interpreted to signify that
treatment through prayer is not necessarily an absolute defense
for the crime in which the treatment-through-prayer protection
applies. One interpretation of "solely" is that the severity of
the child's illness may render the protection inapplicable.
Commonwealth v. Twitchell, 617 N.E.2d 609, 612 n.4 (Mass. 1993).

21
 No. 2011AP1044-CR & 2011AP1105-CR

The Supreme Court of Colorado explained the language "for
that reason alone" in its statute as follows:

[T]he meaning of the statutory language, "for that
reason alone," is quite clear. It allows a finding of
dependency and neglect for other "reasons," such as
where the child's life is in imminent danger, despite
any treatment by spiritual means. In other words, a
child who is treated solely by spiritual means is not,
for that reason alone, dependent or neglected, but if
there is an additional reason, such as where the child
is deprived of medical care necessary to prevent a
life-endangering condition, the child may be
adjudicated dependent and neglected under the
statutory scheme.

In re D.L.E., 645 P.2d 271, 274-75 (Colo. 1982). See also
Walker v. Superior Court, 47 Cal. 3d 112, 131 (1988) (citing the
Colorado decision with approval).

22
 No. 2011AP1044-CR & 2011AP1105-CR

¶52 Provisions regarding treatment through prayer appear

in several instances in the Wisconsin statutes.31 Taken

together, these statutes evidence the legislature's balancing in

each instance of the interests of persons who rely on treatment

through prayer and the State's interest in protecting

individuals. The statutes demonstrate that the legislature has

carefully considered under what circumstances it is willing to

allow reliance on treatment through prayer for those who believe

in the efficacy of such treatment and when it is not. If the

legislature intended a treatment-through-prayer provision to

apply across the board to all criminal statutes, the legislature

31
See, e.g., Wis. Stat. § 46.90(7) (nothing in § 46.90
creating an elder abuse reporting system "may be construed to
mean that a person is abused, financially exploited, neglected
or in need of direct or protective services solely because he or
she consistently relies upon treatment by spiritual means
through prayer for healing in lieu of medical care in accordance
with his or her religious tradition"); Wis. Stat. § 48.82(4) (no
person shall be denied adoption because of religious belief in
the use of spiritual means through prayer for healing); Wis.
Stat. § 102.42(6) ("Unless the employee shall have elected
Christian Science treatment in lieu of medical . . . treatment
no [workers] compensation shall be payable for the death or
disability of an employee, if the death be caused or insofar as
the disability may be aggravated . . . by an unreasonable
refusal or neglect to submit to or follow any competent and
reasonable medical . . . treatment . . . ."); Wis. Stat.
§ 938.505(2)(a)1. (a court "may not determine that a parent's or
guardian's consent [to the administration of psychotropic
medication to a juvenile under the supervision of the Department
of Corrections] is unreasonably withheld solely because the
parent or guardian relies on treatment by spiritual means
through prayer for healing in accordance with his or her
religious tradition"); Wis. Stat. § 940.285(1m) (excepts
treatment through prayer from criminal prosecution for abuse of
"at-risk" individuals).

23
 No. 2011AP1044-CR & 2011AP1105-CR

could have used different language or placed a treatment-

through-prayer provision in Chapter 939 with other defenses to

criminal liability.32

¶53 Thus, the text of the treatment-through prayer-

provision, Wis. Stat. § 948.03(6), does not and cannot lead

parents to expect that they are immune from criminal prosecution

for second-degree reckless homicide.33

32
See Wis. Stat. ch. 939, subchapter III, Defenses to
Criminal Liability (Wis. Stat. §§ 939.42-.49).
33
In 1993, two bills were introduced in the Wisconsin
Senate, one repealing and the other extending treatment-through-
prayer provisions. 1993 Senate Bill 107 attempted to eliminate
the prayer treatment protection provisions by repealing Wis.
Stat. § 948.03(6) and striking the related text in Wis. Stat.
§ 48.981(3)(c)4. 1993 Senate Bill 544 attempted to extend
coverage to provide a treatment-through-prayer exception for
crimes involving criminal negligence and criminal recklessness.
Both of those bills failed to pass.

The Analysis by the Legislative Reference Bureau regarding
1993 Senate Bill 544 explains, as follows, that the second-
degree reckless homicide statute does not except treatment
through prayer:

Current law provides a treatment through prayer
exception to the crime of physical abuse of a child.
A person is not guilty of physical abuse of a child
because the person relies on treatment of the child
through prayer for healing. This bill extends this
coverage to provide a treatment through prayer
exception for crimes involving criminal negligence or
criminal recklessness.

Drafting File for 1993 S.B. 544, Legislative Reference Bureau,
Madison, Wis.

24
 No. 2011AP1044-CR & 2011AP1105-CR

¶54 Rather than rely on the statutory treatment-through-

prayer provision as explicitly protecting them from prosecution

under the second-degree reckless homicide statute, the parents

assert that the interplay of Wis. Stat. § 940.06(1), the second-

degree reckless homicide statute, and § 948.03, the criminal

child abuse statute (including the treatment-through-prayer

provision), creates a lack of "fair notice" of prohibited

conduct.

¶55 The parents' fair notice argument turns on the phrase

"great bodily harm," which appears in the three statutory

provisions at issue: Wis. Stat. §§ 940.06(1), 948.03(3)(a), and

948.03(3)(c). "Great bodily harm" means bodily injury that

creates a substantial risk of death or other enumerated physical

injuries. Wis. Stat. § 939.22(14).

¶56 The parents contend that there is no legal difference

between the conduct governed by the three statutes: "This

'substantial risk of death' that creates criminal liability

under reckless homicide is the same 'substantial risk of death'
explicitly protected in the prayer treatment exception."34 Even

if there is a line between the statutes in theory, the parents
aver that the line is too difficult to define or conceptualize.

Although 1993 S.B. 544 was never enacted, its introduction
tends to show that the legislators who introduced it, and the
Christian Science Committee on Publication that suggested it,
did not believe that the treatment-through-prayer provision in
the criminal child abuse statute provided protection from
prosecution for crimes involving criminal recklessness.
34
Brief and Appendix of Defendant-Appellant Leilani E.
Neumann at 12.

25
 No. 2011AP1044-CR & 2011AP1105-CR

¶57 Accordingly, the parents maintain that a prayer-

treating parent is protected up to and including the point at

which the child experiences great bodily injury that means,

among other things, a substantial risk of death. The parents

read Wis. Stat. § 948.03(6) as telling prayer-healing parents

that until a child's medical condition progresses "to at least

some point beyond a 'substantial risk of death,' they are immune

from prosecution."35

¶58 The parents interpret "the point beyond a 'substantial

risk of death'" in the present cases as being the exact moment

that Kara died. The parents assert that up until Kara stopped

breathing, their choice of treatment through prayer was a

statutorily protected response to the "substantial risk of

death" that Kara was experiencing.36 They assert that "[a]s 911

35
Defendant-Appellant's Brief and Appendix (Dale R.
Neumann) at 16.
36
The parents acknowledge that they could be liable under
the second-degree reckless homicide statute if death was
imminent. The word "imminent" is not in the statute. The
parents explain that an "imminent risk of death," is for
example, respiratory failure, severe bleeding, or severe trauma.
Such circumstances, they concede, would arguably lie beyond a
substantial risk of death and would give clear notice to a
parent that immunity under Wis. Stat. § 948.03(6) no longer
applies.

According to the parents, Kara's condition had not
progressed beyond "a substantial risk of death" and did not
involve "imminent" death. The parents contend the imminence of
death did not occur in the present case until Kara stopped
breathing.

26
 No. 2011AP1044-CR & 2011AP1105-CR

was called as soon as Kara stopped breathing," the "line"

protecting prayer-treating parents "was never crossed."37

¶59 The parents assert there is no boundary, no clear

moment when they were on notice that their failure to provide

medical care had crossed the line between the protection offered

under Wis. Stat. § 948.03(6) and liability under Wis. Stat.

§ 940.06(1). The parents argue that the only dividing line

between legality and illegality of the parents' conduct is the

happenstance of death, and that this dividing line is too vague

and unclear to provide sufficient notice in the present case.

¶60 Using this reasoning, the parents conclude that due

process fair notice has been violated because they were

convicted for conduct that the State told them was protected.38

They allege that the conflicting legal provisions violate due

process by failing to furnish fair notice of what conduct is

illegal.39

¶61 Both the State and parents cite case law from other

states that have addressed a due process fair notice challenge
to support their respective positions. Most cases lend support

37
Defendant-Appellant's Brief and Appendix (Dale R.
Neumann) at 16 n.5; see also Brief and Appendix of Defendant-
Appellant Leilani E. Neumann at 14.
38
See, e.g., Cox v. Louisiana, 379 U.S. 559, 571 (1965);
United States v. Cardiff, 344 U.S. 174, 176-77 (1952); Raley v.
Ohio, 360 U.S. 423, 438-39 (1959).
39
Cardiff, 344 U.S. at 176-77.

27
 No. 2011AP1044-CR & 2011AP1105-CR

to the State's position.40 A minority of cases lends support to

the parents' position.41 The parents distinguish the cases

40
See, e.g., Walker v. Superior Court of Sacramento County,
763 P.2d 852, 873 (Cal. 1988) (The Supreme Court of California
held that a prayer treatment exemption did not provide a defense
to prosecution for involuntary manslaughter; the statutes there
provided sufficient notice that "the provision of prayer
alone . . . would be accommodated only insofar as the child was
not threatened with serious physical harm or illness." This
aspect of the Walker case may have been overturned by a federal
district court; see Walker v. Keldgord, No. CIV S-93-0616 LKK
JFM P (E.D. Cal. 1996)); Hall v. State, 493 N.E.2d 433 (Ind.
1986) (The trial court's finding that the parents acted
recklessly in failing to seek medical care for their sick child
was sufficiently supported by the evidence. Reckless homicide
does not have a statutory defense excusing responsibility for a
death that resulted from what our legal system has defined to be
reckless acts, regardless of whether these acts were conducted
pursuant to religious beliefs. The legislature had
distinguished between child neglect that results in serious
bodily injury and child neglect that results in the child's
death. Prayer is not permitted as a defense when a caretaker
engages in omissive conduct that results in the child's death.);
Commonwealth v. Twitchell, 617 N.E.2d 609 (Mass. 1993) (Parents
have a duty to seek medical attention for a seriously ill child.
Wanton or reckless conduct could support a conviction of
involuntary manslaughter. The spiritual healing provision did
not bar prosecution for manslaughter in those circumstances.);
State v. Hays, 964 P.2d 1042, 1046 (Or. Ct. App. 1998) (The
statutes permit a parent to treat a child by prayer or other
spiritual means so long as the illness is not life-threatening.
Once a reasonable person should know that there is a substantial
risk that the child will die without medical care, the parent
must provide that care, or allow it to be provided, at the risk
of criminal sanctions if the child dies. It may be impossible
to define in advance all the ways in which a person's actions
can be a gross deviation from the standard of care of a
reasonable person, and thus criminally negligent under Oregon
law; "[t]hat difficulty does not mean, however, that the
legislature may not penalize such a gross deviation.");
Commonwealth v. Nixon, 718 A.2d 311, 313 (Pa. 1998) (A plain
reading of the statutes shows that an act that does not qualify
as child abuse may still be done in a manner that causes death
and thus qualifies as involuntary manslaughter. The Nixons were
not considered child abusers for treating their children through
28
 No. 2011AP1044-CR & 2011AP1105-CR

favoring the State's position, and the State distinguishes the

cases favoring the parents' position, each noting the

differences in the statutes of other states and in the facts of

the cases. The laws and facts are different in these non-

Wisconsin cases, but the discussions and applications of the due

process fair notice requirements by other state courts have been

helpful in our analysis.

D

spiritual healing, but when their otherwise lawful course of
conduct led to a child's death, they were guilty of involuntary
manslaughter.).

For a discussion of these cases, see articles cited at note
28, supra, and note 59, infra. See also Jennifer L. Rosato,
Putting Square Pegs in a Round Hole: Procedural Due Process and
the Effect of Faith Healing Exemptions on the Prosecution of
Faith Healing Parents, 29 U.S.F. L. Rev. 43, 103-16 (1994).
41
Hermanson v. State, 604 So. 2d 775, 782 (Fla. 1992) (When
considered together, the spiritual treatment accommodation
provision and child abuse statutes failed to give parents notice
of the point at which their reliance on spiritual treatment lost
statutory approval and became culpably negligent. The statutory
scheme in place failed to establish a line of demarcation at
which a person could know his conduct was criminal.); State v.
McKown, 475 N.W.2d 63, 68-69 (Minn. 1991) (The manslaughter
statute failed to give the prayer-treating parents fair notice
of the prohibited conduct. "[W]here the state had clearly
expressed its intention to permit good faith reliance on
spiritual treatment and prayer as an alternative to conventional
medical treatment, it cannot prosecute respondents for doing so
without violating their rights to due process.").

See Baruch Gitlin, Parents' Criminal Liability for Failure
to Provide Medical Attention to Their Children, 118 A.L.R. 5th
253 (2004) (made current by weekly addition of released cases)
(collecting cases including cases on the spiritual treatment
defense).

29
 No. 2011AP1044-CR & 2011AP1105-CR

¶62 Having set forth the parents' constitutional

challenge, we now determine the constitutionality of the

statutes. Interpreting and applying a statute, as well as

determining the constitutionality of a statute, ordinarily

present a question of law that this court determines

independently of the circuit court but benefiting from its

analysis.42

¶63 The parents acknowledge, and we agree, that the

protection for treatment through prayer explicitly and

exclusively applies to the child abuse statute. See ¶¶48-53,

supra.

¶64 The issue we are left to consider is the parents' due

process fair notice challenge based on the interplay of the four

statutes and the application of the statutes to the facts of the

instant cases.

¶65 The parents' challenge hinges on the fact that the

texts of Wis. Stat. § 940.06(1) and § 948.03(3)(a) and (3)(c)

all incorporate, in one way or another, the phrase "great bodily

harm," which is defined by § 939.22(14) for all three statutes.

It is apparent, however, in reading the text of the statutes,

that the phrase "great bodily harm" is used in different ways in

these statutes.

¶66 The second-degree reckless homicide statute, Wis.

Stat. § 940.06(1), requires the State to prove the following:

42
Jandre v. Wis. Injured Patients & Families Comp. Fund,
2012 WI 39, ¶60, 340 Wis. 2d 31, 813 N.W.2d 627.

30
 No. 2011AP1044-CR & 2011AP1105-CR

• First, the reckless nature of the conduct. The actor

creates an unreasonable and substantial risk of death

or great bodily harm, as defined in § 939.22(14),to

another human being.

• Second, the actor's subjective mental state. The

actor was subjectively aware of the risk.

• Third, the harm caused by the actor. The actor caused

the death of another.

¶67 No one argues that the second-degree reckless homicide

statute is so vaguely worded that it fails to provide fair

notice of what conduct is prohibited and what conduct is

protected.

¶68 For one to recklessly cause great bodily harm to a

child, in violation of Wis. Stat. § 948.03(3)(a), the State must

prove the following:

• First, the reckless nature of the conduct. The

actor's conduct creates a situation of unreasonable

risk of harm to a child.

• Second, the actor's mental state. The creation of the
unreasonable risk of harm demonstrates a conscious

disregard for a child's safety.
• Third, the harm caused by the actor. The actor caused

great bodily harm, as defined in § 939.22(14),to a
child.

¶69 For one to recklessly cause bodily harm to a child, in

violation of Wis. Stat. § 948.03(3)(c), the State must prove the

following:
31
 No. 2011AP1044-CR & 2011AP1105-CR

• First, the reckless nature of the conduct. The

actor's conduct creates a situation of unreasonable

risk of harm to a child and a high probability of

great bodily harm as defined in § 939.22(14).

• Second, the actor's mental state. The creation of the

unreasonable risk of harm demonstrates a conscious

disregard for a child's safety.

• Third, the harm caused by the actor. The actor caused

bodily harm to a child.

¶70 No one argues that Wis. Stat. § 948.03(3)(a) and

(3)(c) of the criminal child abuse statute are so vaguely worded

that they fail to provide fair notice of what conduct is

prohibited.

¶71 It is evident that the parents' failure to provide

medical care is the conduct penalized in each of the three

statutes. It is also evident that although the three statutes

incorporate the same phrase, "great bodily harm," they do so in

different ways. The second-degree reckless homicide statute

differs from Wis. Stat. § 948.03(3)(a) and (3)(c) of the
criminal child abuse statute in three important respects: the

reckless nature of the conduct governed, the mental state
required, and the harm caused by the actor.

¶72 The second-degree reckless homicide statute, Wis.
Stat. § 940.06(1), governs reckless conduct, that is, conduct

that creates an unreasonable and substantial risk of death or

great bodily harm to another. Wisconsin Stat. § 948.03(3)(a)

governs reckless conduct, that is, conduct that creates a
32
 No. 2011AP1044-CR & 2011AP1105-CR

situation of unreasonable risk of harm to a child. Wisconsin

Stat. § 948.03(3)(c) governs reckless conduct, that is, conduct

that creates a situation of unreasonable risk of harm to a child

that creates a high probability of great bodily harm.

¶73 Perhaps most important for this discussion of due

process fair notice is the different mens rea in the statutes at

issue. The word "recklessly" is defined differently in the

second-degree reckless homicide statute (Wis. Stat. § 939.24(1))

and in the criminal child abuse statute (§ 948.03(1)), resulting

in requiring different mens rea.
¶74 As the Judicial Council Note to Wis. Stat. § 939.24

explains, the second-degree reckless homicide statute requires

"both the creation of an objectively unreasonable and

substantial risk of human death or great bodily harm and the

actor's subjective awareness of that risk."43 This is the only

statute at issue that requires the State to prove that an actor

has a subjective mens rea, that is, the actor is subjectively

aware of the risk he or she creates.

¶75 The criminal child abuse statute, Wis. Stat. § 948.03,

has no subjective mens rea component.

¶76 The court of appeals explained the difference between

the mental states in Wis. Stat. § 940.06(1) and § 948.03(3)(a)

43
Judicial Council Note, 1988, Wis. Stat. § 939.24.

"[R]ecklessness requires a subjective mental state: the
defendant must actually (in her own mind) be aware of the risk
created by the conduct." Walter Dickey et al., The Importance
of Clarity in the Law of Homicide: The Wisconsin Revision, 1989
Wis. L. Rev. 1323, 1352.

33
 No. 2011AP1044-CR & 2011AP1105-CR

and (3)(c) in State v. Williams, 2006 WI App 212, ¶26, 296

Wis. 2d 834, 723 N.W.2d 719, as follows:

[R]eckless child abuse requires the defendant's
actions demonstrate a conscious disregard for the
safety of a child, not that the defendant was
subjectively aware of that risk. In contrast,
"criminal recklessness" is defined as when "the actor
creates an unreasonable and substantial risk of death
or great bodily harm to another human being and the
actor is aware of that risk." Thus, "recklessly"
causing harm to a child under § 948.03(b) is
distinguished from "criminal recklessness," because
only the latter includes a subjective component. We
therefore conclude that recklessly causing harm to a
child, unlike criminal recklessness, does not contain
a subjective component (citations omitted).
¶77 A subjective scienter requirement, as we explained

previously, can alleviate vagueness because an actor who knows

what he or she is doing and is aware of the unlawful risk cannot

be heard to claim that he or she did not know his or her conduct

was prohibited.44

¶78 The final distinction between the statutes at issue is

the harm caused by the actor's conduct. Under Wis. Stat.

§ 940.06(1), the State must prove that the actor caused the
death of another. In contrast, under the child abuse statutes

the State must prove that the actor caused great bodily harm

44
Hoffman Estates, 455 U.S. at 499 (citing Colautti v.
Franklin, 439 U.S. 379, 395 (1979); Boyce Motor Lines v. United
States, 342 U.S. 337, 342 (1952); Screws, 325 U.S. at 101-03
(plurality opinion); Note, The Void-for-Vagueness Doctrine in
the Supreme Court, 109 U. Pa. L. Rev. 67, 87, n.98 (1960)). See
also United States v. Gaudreau, 860 F.2d 357, 360 (10th Cir.
1988) (citing Screws, 325 U.S. at 101-04 (plurality opinion)).

34
 No. 2011AP1044-CR & 2011AP1105-CR

under Wis. Stat. § 948.03(3)(a) or bodily harm under Wis. Stat.

§ 948.03(3)(c).45

¶79 If we were to accept the parents' interpretation and

application of the four statutes to the facts of the present

cases, all prayer-treating parents would in effect be immunized

from second-degree reckless homicide. If we were to adopt the

parents' reasoning, no prayer-treating parent would know what

point is beyond "a substantial risk of death" until the child

actually stopped breathing and died.

¶80 Each statute must be read in its entirety and in

combination with the other statutes. The phrase "great bodily

harm" cannot be disembodied from the entire text of each statute

and considered in isolation to render the statutes violative of

due process. The parents' emphasis on the phrase "great bodily

harm" ignores the distinction in the reckless nature of the

conduct, the mental state, and the harm in the criminal child

abuse and second-degree reckless homicide statutes. Each

statute read as a whole, and in combination with the other
statutes at issue, gives actors (including the parents in the

instant case) fair notice of when the actor may be held liable
or may be protected under the statutes.

45
The different legislative treatment of criminal conduct
on the basis of whether death results is not unique to these
statutes. Criminal charges are inevitably reliant on the result
of the actor's conduct. An actor cannot be guilty of any
homicide unless the victim dies. If the victim lives despite
the actor's conduct, the actor is not guilty of homicide but may
be guilty of attempted homicide or some other crime.

35
 No. 2011AP1044-CR & 2011AP1105-CR

¶81 We conclude that the second-degree reckless homicide

statute and the criminal child abuse statute are sufficiently

distinct that a parent has fair notice of conduct that is

protected and conduct that is unprotected. The statutes are

definite enough to provide a standard of conduct for those whose

activities are proscribed and those whose conduct is protected.46

A reader of the treatment-through-prayer provision cannot

reasonably conclude that he or she can, with impunity, use

prayer treatment as protection against all criminal charges.

The four statutes are not unconstitutional on due process fair

notice grounds.

¶82 In sum, when a parent fails to provide medical care to

his or her child, creates an unreasonable and substantial risk

of death or great bodily harm, is aware of that risk, and causes

the death of the child, the parent is guilty of second-degree

reckless homicide.47

46
Kolender v. Lawson, 461 U.S. 352, 357-58 (1983); Grayned
v. City of Rockford, 409 U.S. 104, 108 (1972); Elections Bd. v.
Wisconsin Mfrs. & Commerce, 227 Wis. 2d 650, 676-77, 597
N.W.2d 721 (1999); State v. Nelson, 2006 WI App 124, ¶36, 294
Wis. 2d 578, 718 N.W.2d 168.
47
The dissent raises a concern about whether a parental
duty will arise in cases when a parent is confronted with
similar symptoms that do not arise from diabetic ketoacidosis.
Dissent, ¶188. The parents in this case knew that Kara was
severely ill but did not specifically know that she was
suffering from diabetic ketoacidosis. The ultimate, underlying
diagnosis is of little consequence to the analysis. Rather, in
applying the statute's conduct and mens rea components, the
focus is on the severity of the symptoms displayed, the parents'
awareness of the severity of the symptoms, and the parents'
subsequent failure to seek medical care.

36
 No. 2011AP1044-CR & 2011AP1105-CR

¶83 This crime is substantially different from the crimes

punished under the criminal child abuse statute. When a parent

fails to provide medical care when there is a duty to act,

creates a situation of unreasonable risk of harm to and

demonstrates a conscious disregard for the safety of the child,

and causes great bodily harm, the parent is guilty of violating

Wis. Stat. § 948.03(3)(a).

¶84 When a parent fails to provide medical care when there

is a duty to act, creates a situation of unreasonable risk of

harm to and demonstrates a conscious disregard for the safety of

the child, and causes bodily harm to a child by conduct that

creates a high probability of great bodily harm, the parent is

guilty of violating Wis. Stat. § 948.03(3)(c).

¶85 A parent is not guilty of violating Wis. Stat.

§ 948.03(3)(a) and (3)(c) "solely because he or she provides a

child with treatment by spiritual means through prayer alone for

healing in accordance with the religious method of healing

permitted under s. 48.981(3)(c)4. or 448.03(6) in lieu of
medical or surgical treatment." Wis. Stat. § 948.03(6).

¶86 The juries could reasonably find that by failing to
call for medical assistance when Kara was seriously ill and in a

coma-like condition for 12 to 14 hours, the parents were
creating an unreasonable and substantial risk of Kara's death,

were subjectively aware of that risk, and caused her death. On
the record before it, each jury could reasonably find that the

State proved the elements of second-degree reckless homicide

under Wis. Stat. § 940.06(1).
37
 No. 2011AP1044-CR & 2011AP1105-CR

III

¶87 The parents assert that their convictions should be

reversed and new trials should be ordered in the interest of

justice under Wis. Stat. § 751.06. They maintain that the real

controversy was not fully tried because of erroneous jury

instructions and ineffective assistance of counsel. If this

court determines that the real controversy has not been fully

tried, it may, in the exercise of its sound discretion, enter

such order as is necessary to accomplish the ends of justice.48

¶88 The real controversy, according to the parents, is

whether the parents' sincere belief in prayer treatment negated

the subjective element of second-degree reckless homicide. This

affirmative defense was not fully tried, they contend, because

the circuit court gave an erroneous jury instruction about a

parent's legal duty to care for a child and an erroneous jury

instruction about religious beliefs, and the circuit court did

not instruct the jury about the effect of a sincere religious

belief.
¶89 A circuit court has broad discretion in issuing jury

instructions based on the facts and circumstances of the case
and in deciding whether to give a specific jury instruction

requested by the parties.49 A circuit court must, however,
"exercise its discretion in order 'to fully and fairly inform

48
Wis. Stat. § 751.06.
49
State v. Coleman, 206 Wis. 2d 199, 212, 556 N.W.2d 701
(1996) (quoted source omitted); State v. Vick, 104 Wis. 2d 678,
690, 312 N.W.2d 489 (1981).

38
 No. 2011AP1044-CR & 2011AP1105-CR

the jury of the rules of law applicable to the case and to

assist the jury in making a reasonable analysis of the

evidence.'"50 When jury instructions are challenged as not

correctly informing the jury of the law applicable to the

charge, as they are in the present case, the challenger has

presented a question of law that an appellate court determines

independently of the circuit court but benefiting from its

analysis.51

¶90 The following jury instructions were given in the

father's trial regarding the elements of the crime. The

instructions follow Wis JI——Criminal 1060. The instructions

about a parent's legal duty to protect the child and religious

belief are not part of Criminal Jury Instruction 1060.

Second degree reckless homicide, as defined in section
940.06 of the Criminal Code of Wisconsin, is committed
by one who recklessly causes the death of another
human being.

Before you may find the defendant guilty of second-
degree reckless homicide, the State must prove by

50
Coleman, 206 Wis. 2d at 212 (internal citations omitted).
51
State v. Gonzalez, 2011 WI 63, ¶22, 335 Wis. 2d 270, 802
N.W.2d 454 (Abrahamson, C.J., lead op.) (citing State v.
Ferguson, 2009 WI 50, ¶9, 317 Wis. 2d 586, 767 N.W.2d 187).

The jury instructions are also challenged as confusing or
misleading. An appellate court should order a new trial only if
upon review of the instruction, the court determines that the
defendant has shown that "'there is a reasonable likelihood that
the jury was misled and therefore applied potentially confusing
instructions in an unconstitutional manner.'" Gonzalez, 335
Wis. 2d 270, ¶23 (Abrahamson, C.J., lead op.) (quoting State v.
Lohmeier, 205 Wis. 2d 183, 194, 556 N.W.2d 90 (1996)).

39
 No. 2011AP1044-CR & 2011AP1105-CR

evidence which satisfies you beyond a reasonable doubt
that the following two elements are present:

First, the defendant caused the death of Madeline Kara
Neumann. Cause means that the defendant's conduct was
a substantial factor in producing the death. Conduct
can be either by an act or omission, when the
defendant has a duty to act.

One such duty is the duty of a parent to protect their
children, to care for them in sickness and in health.

Second, the defendant caused the death by criminally
reckless conduct. Criminally reckless conduct means
the conduct created a risk of death or great bodily
harm to another person. Great bodily harm means
serious bodily injury. It is an injury which creates
a substantial risk of death or serious bodily harm.

In addition, the risk of death or great bodily harm
was unreasonable and substantial, and the defendant
was aware that his conduct created the unreasonable
and substantial risk of death or great bodily harm.

If you are satisfied beyond a reasonable doubt that
the defendant caused the death of Madeline Kara
Neumann by criminally reckless conduct, you should
find the defendant guilty of second-degree reckless
homicide. If you are not satisfied, you must then
find the defendant not guilty.

The constitutional freedom of religion is absolute as
to beliefs but not as to the conduct, which may be
regulated for the protection of society.
¶91 The following jury instructions regarding the elements

of the crime were given in the mother's trial. Again, the
instructions follow Wis JI——Criminal 1060. The instructions

about a parent's duty to protect the child and religious belief
are not part of Criminal Jury Instruction 1060.

Second-degree reckless homicide is defined in Section
940.06 of the Criminal Code of Wisconsin, and it's
committed by one who recklessly causes the death of
another human being. Before you may find the

40
 No. 2011AP1044-CR & 2011AP1105-CR

defendant guilty of second-degree reckless homicide,
the defendant [sic] must prove by evidence which
satisfies you beyond a reasonable doubt that the
following two elements were present.

First, the defendant caused the death of Madeline Kara
Neumann. "Cause" means that the defendant's conduct
was a substantial factor in producing the death.
Conduct can be either by an act or an omission when
the defendant has a duty to act.

One such duty is the duty of a parent to protect their
children, to care for them in sickness and in death
[sic], and to do whatever is necessary for their
preservation, including medical attendance, if
necessary.

Second, the defendant caused the death by criminally
reckless conduct. "Criminally reckless conduct" means
the conduct created a risk of death or great bodily
harm to another person. "Great bodily harm" means
serious bodily injury. It is an injury which creates
a substantial risk of death or other serious bodily
injury.

In addition, the risk of death or great bodily harm
was unreasonable and substantial and the defendant was
aware that her condition created the unreasonable and
substantial risk of death or great bodily harm.

If you are satisfied beyond a reasonable doubt that
the defendant directly committed all of the two
elements of second-degree reckless homicide or that
the defendant intentionally aided and abetted the
commission of that crime, you should find the
defendant guilty. If you are not so satisfied, then
you must find the defendant not guilty.

The Constitutional Freedom of Religion is absolute as
to beliefs but not as to conduct which may be
regulated for the protection of society.
¶92 We shall in Part A. discuss the "duty" instruction and

in Part B., the "religious belief" instruction. We then examine

in Part C. the circuit court's refusal to instruct the jury

about the effect of a parent's sincere belief in prayer

41
 No. 2011AP1044-CR & 2011AP1105-CR

treatment on the subjective awareness element of second-degree

reckless homicide. Finally, Part D. addresses whether counsel

provided ineffective assistance.

A

¶93 The prosecutions of the parents for second-degree

reckless homicide were based not on the affirmative acts of the

parents that allegedly caused Kara's death but rather on the

parents' omission, that is, their failure to provide Kara

medical care, which allegedly caused her death.

¶94 Although the second-degree reckless homicide statute,

Wis. Stat. § 940.06(1), does not include specific language

criminalizing an omission, the parties agree, as do we, that an

actor may be criminally liable for a failure to act if the actor

has a legal duty to act.52

¶95 The second-degree reckless homicide statute, Wis.

Stat. § 940.06(1), requires that a defendant "cause" the death

of another. An actor causes death if his or her conduct is a

"substantial factor" in bringing about that result.53 An actor's

52
State v. Williquette, 129 Wis. 2d 239, 255-56, 385
N.W.2d 145 (1986) (criminal liability based on an omission may
be possible when a special relationship exists between the
accused and the victim creating a legal duty to act); State ex
rel. Cornellier v. Black, 144 Wis. 2d 745, 758, 425 N.W.2d 21
(Ct. App. 1988) (employer could be prosecuted for reckless
homicide by omission).

See also 1 Wayne R. LaFave, Substantive Criminal Law § 6.1
at 422, § 6.2(a) at 434-437 (2d ed. 2003) (discussing a legal
duty based on a relationship).
53
State v. Oimen, 184 Wis. 2d 423, 435, 516 N.W.2d 399
(1994).

42
 No. 2011AP1044-CR & 2011AP1105-CR

"conduct" can be an act or a failure to act (an omission). The

parents are charged with a failure to act, that is, a failure to

provide medical care to Kara.

¶96 The parents argue that they did not have a legal duty

to act and that the jury instructions that imposed such a legal

duty were prejudicial error warranting a reversal of the

convictions.54

¶97 Whether a parent has a legal duty to provide medical

care to a child is a question of law that this court determines

independently of the circuit court but benefiting from its

analysis.55

¶98 The instruction regarding a parent's duty to provide

medical care was given in the instant cases as part of the

instruction explaining the causal element of the offense of

second-degree reckless homicide. The following causation

instruction, as noted above, was given in the father's case:

First, [the State must prove that] the defendant
caused the death of Madeline Kara Neumann. Cause
means that the defendant's conduct was a substantial
factor in producing the death. Conduct can be either

54
The parents claim, as we explained previously, that the
State's theory of the case and its closing argument depend in
part on the legal duty that exists when one suffers great bodily
harm. They argue that according to the jury instruction and the
State's argument, guilt was proven as soon as the parents
observed any symptom that met the definition of great bodily
harm, thus contravening the treatment-through-prayer protection
of Wis. Stat. § 948.03(6).
55
Antwaun A. ex rel. Muwonge v. Heritage Mut. Ins. Co., 228
Wis. 2d 44, 54, 596 N.W.2d 456 (1999) (citations omitted).

43
 No. 2011AP1044-CR & 2011AP1105-CR

by an act or omission, when the defendant has a duty
to act.

One such duty is the duty of a parent to protect their
children, to care for them in sickness and in health.56
¶99 A slightly different duty instruction, as noted above,

was given in the mother's case, again as part of the instruction

on the element of causation:

First, [the State must prove that] the defendant
caused the death of Madeline Kara Neumann. "Cause"
means that the defendant's conduct was a substantial
factor in producing the death. Conduct can be either
by an act or an omission when the defendant has a duty
to act.

One such duty is the duty of a parent to protect their
children, to care for them in sickness and in death
[sic], and to do whatever is necessary for their
preservation, including medical attendance, if
57
necessary.
¶100 Although the parents characterize the instructions as

requiring them to provide "conventional medicine," the jury

instructions do not refer to conventional medicine. The jury

instructions are more general in terms of care "in sickness and

in health" and "medical attendance, if necessary."

¶101 The circuit court prepared these instructions on the

basis of State v. Williquette, 129 Wis. 2d 239, 255-56, 385
N.W.2d 145 (1986), which drew language from Cole v. Sears

56
The father's defense counsel objected to this language.
57
The circuit court incorrectly substituted the word
"death" for the word "health." The mother's defense counsel
preserved any objection to the instruction about the mother's
duty.

44
 No. 2011AP1044-CR & 2011AP1105-CR

Roebuck & Co., 47 Wis. 2d 629, 177 N.W.2d 866 (1970), a civil

products liability tort case.

¶102 The parents have three objections to the duty

instructions: (1) Neither Wisconsin statutes nor Wisconsin case

law establishes a parent's legal duty to provide medical care to

his or her child; (2) The duty instruction given violates a

parent's constitutional right to direct the care of his or her

child; and (3) The statutory provision protecting treatment-

through-prayer (Wis. Stat. § 948.03(6)) negates any legal duty

to provide medical care up to, and including, the point at which

a child suffers great bodily harm, which includes a substantial

risk of death.

1

¶103 We first determine whether Wisconsin law imposes a

legal duty on a parent to furnish medical care to his or her

child and, if so, under what circumstances.

¶104 We are not aware of any single Wisconsin statute that

describes the legal duty a parent owes to a child for medical

care. We are aware, however, that the statute books are replete
with provisions imposing responsibility on parents for the care

of their children, including the requirement that they provide

45
 No. 2011AP1044-CR & 2011AP1105-CR

medical care when necessary.58 These statutes demonstrate the

legislature's recognition of the legal duty of parents to

58
See, e.g., Wis. Stat. § 48.13(10) (the court has
jurisdiction over a child whose parent, guardian, or legal
custodian neglects, refuses, or is unable for reasons other than
poverty to provide necessary care, food, clothing, medical or
dental care, or shelter so as to seriously endanger the physical
health of the child.); Wis. Stat. § 767.41(1m)(f), (g) & (i)
(upon divorce, parents seeking custody of a child must file a
parenting plan that prescribes which doctor will provide medical
care for the child, how the child's medical expenses will be
paid, and who will make the decisions about the child's medical
care); Kuchenbecker v. Schultz, 151 Wis. 2d 868, 874-76 n.2, 447
N.W.2d 80 (Ct. App. 1989) (the child support statute requires
that the responsibility for the child's health care be assigned
to a specific parent and that there be adequate funding to
fulfill the child's health care needs).

46
 No. 2011AP1044-CR & 2011AP1105-CR

support and protect their children, including providing them

with medical care, when necessary.59

59
Other jurisdictions have also recognized a parent's legal
duty to care for his or her child, including the duty to provide
medical care. Some base this duty on statutes explicitly
defining the duty; others base this duty on common law; and
still others base this duty on numerous statutes recognizing a
parent's obligations, such as child support statutes. See,
e.g., Faunteroy v. United States, 413 A.2d 1394, 1299-1300 (D.C.
1980) (parents had a common law natural duty, as well as a
statutory duty to provide medical care for their minor dependent
children) (compiling cases from other jurisdictions); Scott
County School Dist. 1 v. Asher, 324 N.E.2d 496, 499 (Ind. 1975)
(a parent has a common law, and in some instances a statutory
duty, to support and maintain his child, which includes the
provision of necessary medical care); Craig v. State, 155 A.2d
684, 691 (Md. 1959) (Christian Science parents find themselves
under the same statutory duty to provide medical care for their
minor children when the circumstances require such care, as do
all other parents. Treating their child in accordance with the
tenets of Christian Science did not render such treatment the
legal equivalent of medical care.); People v. Steinberg, 595
N.E.2d 845, 847 (N.Y. 1992) (parents "have a nondelegable
affirmative duty to provide their children with adequate medical
care" and thus, the failure to perform that duty can form the
basis of a criminal charge); Commonwealth v. Foster, 764 A.2d
1076, 1082 (Pa. Super. Ct. 2000) ("The law imposes an
affirmative duty on parents to seek medical help when the life
of a child is threatened, regardless, and in fact despite, their
religious beliefs."); State v. Morgan, 936 P.2d 20, 22 (Wash.
Ct. App. 1997) (Washington has long recognized a natural
parental duty, existing independently of the statutes, to
provide medical care for minor children).

47
 No. 2011AP1044-CR & 2011AP1105-CR

¶105 We turn next to the case law, which is instructive.

The lead case is State v. Williquette, which discusses and

recognizes a parent's legal duty to protect his or her child.

Although the case does not involve the second-degree reckless

homicide statute or medical care, the case is important because

of its wide-ranging discussion of the parental duty owed to

one's child.60 In Williquette, a mother was prosecuted under a

now-repealed statute that criminalized "subject[ing] a child to

cruel maltreatment."61 The allegation was that the mother,

knowing of her husband's abuse of the children, continued to

leave the children in her husband's care and did nothing to stop

the abuse. The Williquette court considered the mother's
leaving the children with the husband under these circumstances

See also D.C. Barrett, Homicide: Failure to Provide Medical
or Surgical Attention, 100 A.L.R. 2d 483 (1965) (made current by
weekly addition of released cases) (collecting cases on the duty
to provide medical care); Baruch Gitlin, Parents' Criminal
Liability for Failure to Provide Medical Attention to their
Children, 118 A.L.R. 5th 253 (2004) (made current by weekly
addition of released cases) (collecting cases including cases on
the spiritual treatment defense); Donna K. LeClair, Comment,
Faith-Healing and Religious-Treatment Exemptions to Child-
Endangerment Laws: Should Parental Religious Practices Excuse
the Failure to Provide Necessary Medical Care to Children?, 13
U. Dayton L. Rev. 79 (1987).
60
For a discussion of the Williquette case, see, e.g.,
State v. Rundle, 176 Wis. 2d 985, 995-999, 500 N.W.2d 916
(1993).
61
The statute under which Williquette was prosecuted was
repealed. The legislature enacted Wis. Stat. § 948.03(4) to
codify the case law and create criminal liability for failing to
act to prevent child abuse. See Comments——1987 Act 332, Wis.
Stat. Ann. § 948.03 (West 2005).

48
 No. 2011AP1044-CR & 2011AP1105-CR

to be overt conduct.62 Nevertheless, the court also concluded

that if there were no overt act, the mother still could be

convicted of the crime because "[t]he relationship between a

parent and a child exemplifies a special relationship where the

duty to protect is imposed."63

¶106 The Williquette court explained that a parent has a

duty "to do whatever may be necessary for [a child's] care,

maintenance, and preservation, including medical attendance, if

necessary."64 It explained that a parent's omission to fulfill

this duty is a public wrong, which the State may prevent using

its police powers.65

¶107 The Williquette court adopted the following language
from Cole as the rule of the legal duty applicable to the

parent-child relationship:

It is the right and duty of parents under the law of
nature as well as the common law and the statutes of
many states to protect their children, to care for
them in sickness and in health, and to do whatever may
be necessary for their care, maintenance, and
preservation, including medical attendance, if
necessary. An omission to do this is a public wrong
which the state, under its police powers, may prevent.
The child has the right to call upon the parent for
the discharge of this duty, and public policy for the
good of society will not permit or allow the parent to

62
Williquette, 129 Wis. 2d at 250.
63
Id. at 255.
64
Id. at 255-56 (quoting Cole v. Sears Roebuck & Co., 47
Wis. 2d 629, 634, 177 N.W.2d 886 (1970)).
65
Williquette, 129 Wis. 2d at 255-56 (quoting Cole, 47
Wis. 2d at 634).

49
 No. 2011AP1044-CR & 2011AP1105-CR

divest himself irrevocably of his obligations in this
regard or to abandon them at his mere will or
pleasure. . . . 39 Am. Jur., Parent and Child, p. 669,
sec. 46.66
¶108 The Cole court also defined the parents' duty to

provide medical services and the necessities of health as

follows:

The legal obligation to provide food, clothing,
housing, medical and dental services deals with the
necessities of health, morals and well-being with
which a child must be provided, or the parents'
failure in this regard may be prevented by the state.67
¶109 A parent's legal duty to provide medical care to a

child has been acknowledged in numerous court of appeals

decisions.68 Still, despite the longstanding case law on the

subject of the legal duty of parents, Kara's parents suggest

that the circuit court drew the duty instruction given in the

instant case from inapposite case law. We do not agree with the

parents.

¶110 The Williquette court engaged in an extensive

discussion and explanation of how a parent's omission may

constitute an element of a crime, even when the criminal statute

is silent regarding omissions. The case established that when a

66
Williquette, 129 Wis. 2d at 255-56 (quoting Cole, 47
Wis. 2d at 634).
67
Cole v. Sears Roebuck & Co., 47 Wis. 2d 629, 634, 177
N.W.2d 866 (1970) (emphasis added).
68
See, e.g., Gardner v. Wis. Patients Comp. Fund, 2002 WI
App 85, ¶21, 252 Wis. 2d 768, 642 N.W.2d 646; Thomas C. v.
Physicians Ins. Co. of Wis., 180 Wis. 2d 146, 151-52, 509
N.W.2d 81 (1993); Kuchenbecker v. Schultz, 151 Wis. 2d 868, 875-
76, 447 N.W.2d 80 (1989).

50
 No. 2011AP1044-CR & 2011AP1105-CR

special relationship exists between persons, like the

relationship between a parent and a child, Wisconsin law imposes

a duty on the parent to protect the child.

¶111 We therefore reaffirm the parental duty adopted in

Williquette and Cole and confirm that a parent has a legal duty

to provide medical care for a child if necessary.

2

¶112 We next consider the parents' alternative position

that in any event the jury instructions imposing a legal duty on

a parent to provide medical care for their child violate a

parent's fundamental right under the United States Constitution

to direct the care of his or her child.

¶113 We accept the parents' premise that the Due Process

clause "protects the fundamental right of parents to make

decisions concerning the care, custody, and control of their

children."69 Nevertheless, as the United States Supreme Court

explained in Prince v. Massachusetts, 321 U.S. 158 (1944), a
parent's fundamental right to make decisions concerning his or

her child is not unlimited:

[T]he family itself is not beyond regulation in the
public interest, as against a claim of religious
liberty. And neither rights of religion nor rights of
parenthood are beyond limitation. Acting to guard the
general interest in youth's well being, the state as
parens patriae may restrict the parent's control by
requiring school attendance, regulating or prohibiting
the child's labor, and in many other ways. Its
authority is not nullified merely because the parent
grounds his claim to control the child's course of

69
Troxel v. Granville, 530 U.S. 57, 66 (2000).

51
 No. 2011AP1044-CR & 2011AP1105-CR

conduct on religion or conscience. Thus, he cannot
claim freedom from compulsory vaccination for the
child more than for himself on religious grounds. The
right to practice religion freely does not include
liberty to expose the community or the child to
communicable disease or the latter to ill health or
death.70
¶114 In Prince, the parents claimed their religious beliefs

required their children to sell religious tracts. They asserted

a free exercise of religion claim justifying their violation of

a state child labor law. The Court concluded that a right to
freely exercise one's religion did not absolve the parents from

their responsibility to obey child labor laws. The Court

explained that "[t]he right to practice religion freely does not

include liberty to expose the . . . child to . . . ill health or

death."71

¶115 Justice Rutledge, writing for the Court, limited the

scope of a parent's fundamental right to make decisions

concerning his or her child, pointing out that in the name of

religion,

[p]arents may be free to become martyrs themselves.
But it does not follow they are free, in identical
circumstances, to make martyrs of their children
before they have reached the age of full and legal
discretion when they can make that choice for
themselves.72

70
Prince v. Massachusetts, 321 U.S. 158, 166-67 (1944)
(internal citations omitted).
71
Prince, 321 U.S. at 166-67. See also Wisconsin v. Yoder,
406 U.S. 205, 233-34 (1972).
72
Prince, 321 U.S. at 170.

52
 No. 2011AP1044-CR & 2011AP1105-CR

¶116 The parents' fundamental right to make decisions for

their children about religion and medical care does not prevent

the State from imposing criminal liability on a parent who fails

to protect the child when the parent has a legal duty to act.73

¶117 We conclude that the jury instructions imposing a

legal duty on a parent to provide medical care for his or her

child when necessary do not violate a parent's fundamental

constitutional right to direct the care of his or her child.

"[N]either rights of religion nor rights of parenthood are

beyond limitation."74

3

¶118 The parents' final challenge to the jury instructions

echoes themes similar to the due process fair notice arguments

discussed above. According to the parents, the jury

instructions explaining that a parent has an affirmative duty to

provide medical care to his or her child are legally incorrect

because the protection for treatment through prayer defines a

73
The parents also argue that the jury instructions
regarding their legal duty to provide medical care are both
unconstitutionally vague and conflict with the protection for
treatment through prayer set forth in Wis. Stat. § 948.03(6).

The parents assert (without significant development) that
the concepts of "protecting one's children," caring for them in
sickness and in health (and death), and providing "medical
attendance, if necessary," are simply too general to give
sufficient guidance to either the parents or the juries. Again,
we note that only a fair degree of definiteness is required.
This language is sufficient when read with the other jury
instructions.
74
Prince, 321 U.S. at 166.

53
 No. 2011AP1044-CR & 2011AP1105-CR

parent's legal duty and permits a parent to fulfill a legal duty

of medical care by treating his or her child through prayer.

¶119 The parents' principal argument is that § 948.03(6)

negates any general legal parental duty to provide medical care

in the present cases because under Wis. Stat. § 948.03(6) they

had no legal duty to provide medical care until Kara's condition

progressed beyond a substantial risk of death. They assert that

until Kara's condition went beyond great bodily harm, that is,

until Kara's condition went beyond a substantial risk of death,

that is, until Kara stopped breathing, the parents complied with

their legal duty to provide medical care.

¶120 We disagree with the parents' approach. The jury

instructions correctly define a parent's duty to provide medical

care. The Williquette decision does not say that parents must

provide medical care under any and all circumstances, even when

medical care is not necessary.

¶121 Thus, we conclude that the jury instructions about a

parent's legal duty to provide medical care were not in and of

themselves erroneous. We discuss below the parents' contention

that because the instructions on legal duty make no exception

for religious beliefs or practice, the juries would have been

misled to believe that a sincerely held religious belief in

prayer treatment was not available to the parents as a defense

to second-degree reckless homicide.

B

54
 No. 2011AP1044-CR & 2011AP1105-CR

¶122 We now turn to the parents' challenge to the jury

instructions regarding religious belief and government

regulation of conduct.

¶123 The parents do not claim that the second-degree

reckless homicide statute violates their free exercise of

religion by not explicitly protecting treatment though prayer.75

Rather, the parents claim that the religious belief instructions

misled the jury about the elements the State had to prove for

convictions of the charged crime of second-degree reckless

homicide.

¶124 The circuit court explained that the religious belief

instruction in each of the present cases "correctly describes

the limits of the religious freedom by distinguishing between

beliefs and actions."

¶125 We agree with the circuit court that the religious

belief instructions in and of themselves are not erroneous. The

United States Supreme Court has held, as the circuit court

instructed, that "the constitutional freedom of religion is

75
At oral argument the parents explained that they did not
make this argument because they did not think it a strong
argument under federal law. The mother noted that the circuit
court's failure to give a sincere belief instruction makes it
likely that the jury will assess the objective reasonableness of
prayer treatment and encourages the violation of First Amendment
rights. The First Amendment, the parents argue, prohibits
juries from assessing the truth or falsity of a defendant's
religious beliefs. Brief and Appendix of Defendant-Appellant
Leilani E. Neumann at 34 n.10.

55
 No. 2011AP1044-CR & 2011AP1105-CR

absolute as to beliefs but not as to the conduct, which may be

regulated for the protection of society."76

¶126 As we explained earlier, the Due Process clause

"protects the fundamental right of parents to make decisions

concerning the care, custody, and control of their children,"77

but a parent's fundamental right to make decisions concerning a

child's care has limitations. The state's authority is not

nullified merely because a parent grounds his or her claim to

control the child in religious belief.

¶127 We conclude that the circuit court's instructions

regarding religious belief were not in and of themselves

erroneous. We discuss below the parents' contention that

because the instructions make no exception for religious beliefs

or practice the juries would have been misled to believe that a

sincerely held religious belief in prayer treatment was not

available in the present cases to the parents as a defense to

second-degree reckless homicide.

C
¶128 Even though we conclude that the jury instructions

about legal duty and religious belief were not erroneous, we

76
See, e.g., Employment Division, Dep't of Human Resources
of Oregon v. Smith, 494 U.S. 872, 878-79 (1990) ("We have never
held that an individual's beliefs excuse him from compliance
with an otherwise valid law prohibiting conduct that the State
is free to regulate."); Sherbert v. Verner, 374 U.S. 398, 402-03
(1963) (collecting cases); Reynolds v. United States, 98 U.S.
145, 166 (1878) (prohibiting plural marriage even though the
prohibition infringed on the free exercise of religion).
77
Troxel, 530 U.S. at 66.

56
 No. 2011AP1044-CR & 2011AP1105-CR

must address the parents' central contention that these jury

instructions, combined with the circuit court's refusal to

instruct the jury about the effect of a parent's sincere belief

in prayer treatment on the subjective awareness element of

second-degree reckless homicide, undermined the parents' ability

to defend themselves. According to the parents, a sincere

belief in prayer treatment may negate the subjective awareness

element. They contend that the instructions told the jury that

the parents had a legal duty to provide medical care (regardless

of religious belief) and that religious-based conduct could be

criminalized, but that the jurors were not instructed that a

sincere belief in prayer treatment may negate the subjective

awareness element of second-degree reckless homicide.

¶129 The parents contend that as a result of the

instructions that were and were not given, the jurors did not

understand that they could find a parent not guilty of the crime

if they found that the State did not prove beyond a reasonable

doubt that the parent in his or her own mind was aware of the
risk of death or substantial harm.78
78
Professor LaFave observes:

As for the defense of religious belief, it is no
interference with one's freedom of religion to convict
of manslaughter one who, for religious reasons, fails
to call a doctor when to fail to do so constitutes
criminal negligence [sometimes referred to in some
statutes as criminal recklessness]. Yet an honest
religious belief that prayer is a better cure than
medicine, that Providence can heal better than
doctors, might serve to negative the awareness of risk
which is required for manslaughter in those states
which use a subjective test of criminal negligence.

57
 No. 2011AP1044-CR & 2011AP1105-CR

¶130 The circuit court rejected the mother's following

proffered instruction on the mother's religious belief:

If Leilani Neumann believed that prayer would heal her
daughter, Madeline Kara Neumann, then you must find
her not guilty.
¶131 The circuit court rejected this instruction as

inaccurately reflecting the law. The focus of a defense to the

charged crime, ruled the circuit court, should be on the

parent's subjective awareness of the risk involved, not on the
parent's subjective belief in the effectiveness of prayer.

¶132 The father did not proffer an instruction relating to

religious belief or the effect of a belief in faith-healing on a

finding of guilt. During jury deliberations, the jury did

submit a question relating to the issue:

Was Dale's belief in faith-healing something that
makes him not liable for not taking Kara to the
hospital, even though he was aware to some degree she
was not feeling well?
¶133 Unfortunately, the record does not reflect exactly

what the circuit court told the jury in response to this

question. According to the transcript of the proceedings
relating to the jury's questions, the father and the State could

not agree on a response for the circuit court to make to the

jury's question but did agree to have the circuit court advise

the jury to reread the instructions and consider them as given.

The father contends that the jury's question demonstrates the

2 Wayne R. LaFave, Substantive Criminal Law § 15.4(a) at 525
n.28 (2d ed. 2003).

58
 No. 2011AP1044-CR & 2011AP1105-CR

jury's uncertainty as to whether it could consider his defense

of his subjective belief in prayer treatment to the element of

subjective awareness.

¶134 As we said in State v. Hubbard, 2008 WI 92, ¶57, 313

Wis. 2d 1, 752 N.W.2d 839, "the necessity for, extent of, and

form of reinstruction" is within the trial court's discretion.

If the given instructions as a whole correctly state the law,

the circuit court's discretionary decision to redirect the jury

to those instructions does not warrant a new trial.79

¶135 Still, the parents urge that the circuit court's

refusal to give any jury instructions about the parents'

subjective religious belief, combined with the duty and

religious belief instructions given, led to each jury's

inadequate understanding of how the sincere belief in prayer

treatment could negate a parent's subjective awareness of the

risk of death or great bodily harm. They assert that the

instruction given——that the parent must be aware that his or her

conduct created the unreasonable and substantial risk of death

or great bodily harm——is not specific enough for a juror to have
understood that the parent's sincere belief in faith healing

could be a complete defense. Indeed, the parents claim that the
two instructions that they challenge and the failure of the

circuit court to instruct on a subjective belief about prayer in

79
State v. Hubbard, 2008 WI 92, ¶57, 313 Wis. 2d 1, 752
N.W.2d 839 (internal citations omitted).

59
 No. 2011AP1044-CR & 2011AP1105-CR

effect told the jury that no such defense existed. Thus the

parents conclude that the real controversy was not fully tried.

¶136 The parents do not offer in their briefs in this court

a specific instruction on the defense of subjective religious

belief. Rather, they explain the relationship between the

requested specific religious belief instruction and the

subjective awareness element in terms of causation.

• The mother claims that the parents "must be aware not

only that their daughter was experiencing great bodily

harm, but that their conduct was causing the great
bodily harm."80

• The mother maintains that "the reckless homicide

statute requires more than mere awareness of the

illness; it requires that the defendant is aware that

her conduct is causing the illness. There can be no

such awareness of causation if a person believes that

prayer, not conventional medicine, is the most likely

healing method."81

• The father espouses a similar position: "The [S]tate

had to prove that Dale was subjectively aware 'that

his conduct created the unreasonable and substantial

risk of death or great bodily harm.' . . . The

defense, in essence, was that if Dale sincerely

80
Brief and Appendix of Defendant-Appellant Leilani E.
Neumann at 35 (emphasis in original).
81
Brief and Appendix of Defendant-Appellant Leilani E.
Neumann at 40 (emphasis in original).

60
 No. 2011AP1044-CR & 2011AP1105-CR

believed treatment through prayer was the best means

by which to heal his daughter, he could not, at the

same time, have been subjectively 'aware' his

treatment by prayer was causing her death. The issue,

essentially, is the subjective awareness of

causation."82

¶137 The parents err in stating the subjective awareness

element of the second-degree reckless homicide statute in terms

of causation.

¶138 The second-degree reckless homicide statute does not

require, as the parents claim, that the actor be subjectively

aware that his conduct is a cause of the death of his or her
child. The statute and the jury instructions require only that

the actor be subjectively aware that his or her conduct created

the unreasonable and substantial risk of death or great bodily

harm.

¶139 Proper jury instructions are crucial to the fact-

finding process.83 Jury instructions must accurately convey the

meaning of the statute as applied to the facts of the case.84

This court may reverse a conviction pursuant to Wis. Stat.

§ 751.06 when a jury instruction "obfuscates the real issue or

82
Defendant-Appellant's Brief and Appendix (Dale R.
Neumann) at 32 (emphasis and bold in original).
83
State v. Perkins, 2001 WI 46, ¶41, 243 Wis. 2d 141, 626
N.W.2d 762.
84
State v. Ferguson, 2009 WI 50, ¶¶14, 31, 317 Wis. 2d 586,
Wis. 2d 586, 767 N.W.2d 187.

61
 No. 2011AP1044-CR & 2011AP1105-CR

arguably caused the real controversy not to be fully tried."85

We view the jury instructions in light of the proceedings as a

whole and do not review a single instruction in isolation.86

¶140 We conclude that a specific instruction on the sincere

religious beliefs of the parents, as counsel request on appeal,

was not required. The jury instructions regarding the

subjective awareness element of second-degree reckless homicide

were not erroneous when read with the statute or when read in

combination with the other jury instructions. The juries were

instructed to consider all the instructions and to consider them

as a whole. The instructions adequately instructed the juries

about the subjective awareness element. The juries reasonably

could have concluded on the basis of the instructions and the

record that the parents were subjectively aware that their

conduct created the unreasonable and substantial risk of death

or great bodily harm and were guilty of second-degree reckless

homicide. We therefore will not exercise our discretion to

reverse the convictions on the basis of the jury instructions.
D

¶141 The parents next argue that the real controversy was
not fully tried because their counsels' performances constituted

85
Perkins, 243 Wis. 2d 141, ¶12.
86
State v. Lohmeier, 205 Wis. 2d 183, 194, 556 N.W.2d 90
(1996).

62
 No. 2011AP1044-CR & 2011AP1105-CR

ineffective assistance of counsel.87 They maintain that their

counsel did not ensure that the jury was properly instructed to

make clear that a "sincere belief" in treatment through prayer

was a defense to the subjective awareness element of second-

degree reckless homicide and did not, in their arguments to the

jury, explain the connection between prayer and the subjective

awareness element of the second-degree reckless homicide

statute.
87
Review of an ineffective assistance of counsel claim is
review of a mixed question of law and fact. Thus, the circuit
court's findings of fact will not be overturned unless clearly
erroneous. The ultimate determinations of whether counsel's
performance was deficient and prejudicial to the defendant are
questions of law which this court determines independently of
the circuit court but benefiting from its analysis. State v.
Johnson, 153 Wis. 2d 121, 127-28, 449 N.W.2d 845 (1990)
(internal citations omitted).

The United States Supreme Court in Strickland v.
Washington, 466 U.S. 668 (1984), set forth a two-part test for
determining whether counsel's actions constitute ineffective
assistance. The first test requires the defendant to show that
his counsel's performance was deficient. This requires showing
that counsel made errors so serious that counsel was not
functioning as the "counsel" guaranteed the defendant by the
Sixth Amendment. Review of counsel's performance gives great
deference to the attorney and every effort is made to avoid
determinations of ineffectiveness based on hindsight. Rather,
review is from counsel's perspective at the time of trial, and
the burden is placed on the defendant to overcome a strong
presumption that counsel acted reasonably within professional
norms.

Even if counsel's performance is found deficient, a
judgment will not be reversed unless the defendant proves that
the counsel's deficient performance prejudiced the defense.

The parents appear to join their ineffective assistance of
counsel claim with their argument that counsels' ineffective
performances justify reversal in the interest of justice.

63
 No. 2011AP1044-CR & 2011AP1105-CR

¶142 We have concluded that the jury instructions were not

erroneous and that trial counsel were not deficient for failing

to ensure that an additional instruction was given to the jury

as requested here.

¶143 The parents also maintain that counsel were deficient

for failing to adequately explain the relationship of the

sincere religious belief defense and the subjective awareness

element.

¶144 The father's counsel did make a sincere religious

belief argument in closing. The mother argues that her trial

counsel planned to present a "sincere belief defense," but did a

poor job of it and did not make the defense clear enough to the

jury.

¶145 Although neither the words "sincere religious belief"

nor similar words are in the mother's counsel's closing

argument, the mother's counsel did tell the jury that the mother

did not understand the severity of Kara's condition; that the

mother lacked awareness that her choice of prayer over medical
care was life-threatening to Kara; and that as soon as the

mother understood that Kara's condition was perhaps beyond
prayer, the mother acted. We agree with the mother that these

comments were not a major part of counsel's closing argument.
¶146 Although trial counsel might have explained more fully

how the sincere belief defense related to the subjective
awareness element, this court will not second-guess trial

counsel's selection of trial tactics in the face of alternatives

64
 No. 2011AP1044-CR & 2011AP1105-CR

that have been weighed in hindsight.88 This court approaches a

request for a new trial "with great caution," and we are

"reluctant to grant a new trial in the interest of justice.89

"The [interest of justice] statute [Wis. Stat. § 751.06] was not

intended to vest this court with power of discretionary reversal

to enable a defendant to present an alternative defense at a new

trial merely because the defense presented at the first trial

proved ineffective."90

¶147 We have reviewed the record and considered the

parents' and the State's arguments on reversing the convictions

in the interest of justice. In light of the jury instructions,

which were not erroneous, and in light of counsels' closing

arguments relating to the subjective awareness element of

second-degree reckless homicide, we will not exercise our

discretion to reverse the convictions. We conclude that the

real issue in controversy was fully tried.

IV

¶148 The final issue is whether the father's jurors were
objectively biased because they were informed that the mother

88
State v. Elm, 201 Wis. 2d 452, 464-65, 549 N.W.2d 471
(Ct. App. 1996).
89
State v. Armstrong, 2005 WI 119, ¶114, 283 Wis. 2d 639,
700 N.W.2d 98. See also State v. Avery, 2013 WI 13, ¶38, 345
Wis. 2d 407, 826 N.W.2d 60.
90
State v. Hubanks, 173 Wis. 2d 1, 29, 496 N.W.2d 96 (Ct.
App. 1992).

65
 No. 2011AP1044-CR & 2011AP1105-CR

had previously been convicted of the same crime for which they

now had to determine the father's guilt.

¶149 The mother's trial was held first. She was convicted

on May 22, 2009. The father's trial was scheduled to begin on

July 23, 2009.

¶150 The mother's trial had generated immense publicity in

Marathon County. Concerned about the father's right to a fair

trial, the circuit court suggested two possible solutions:

change of venue or postponement of the trial. The father

rejected both suggestions, asserting his right to a speedy trial

in Marathon County.

¶151 On the morning jury selection began, the circuit court

held an in-chambers conference. No record was made of this in-

chambers conference.

¶152 Later that morning, the assistant district attorney

and the father's counsel stipulated on the record that each

prospective juror would be informed of the mother's prior

conviction during individual voir dire. The father and the
State apparently feared some jurors would know about the

mother's conviction and others would not. The State and the
father preferred that all jurors have the same information.

Also, the father apparently believed that the circuit court had
determined, in chambers and off the record, that knowledge of

the mother's conviction alone would not disqualify a person from
serving on the father's jury.

¶153 The father now argues that the jurors were objectively

biased and that the circuit court erred by not automatically
66
 No. 2011AP1044-CR & 2011AP1105-CR

disqualifying any person from the jury pool who knew of the

mother's conviction.91

¶154 A criminal defendant's right to be tried by impartial

and unbiased jurors is guaranteed by the Sixth and Fourteenth

Amendments to the United States Constitution and Article I,

Section 7 of the Wisconsin Constitution.92 Prospective jurors

are presumptively impartial, and the challenger to a juror bears

the burden of proving bias.93 An inquiry into objective bias of

a juror asks whether a reasonable person under the circumstances

could be impartial.94

91
The State argues that the father did not properly
preserve this issue in the circuit court and forfeited or waived
the issue on appeal. See State v. Lewis, 2010 WI App 52, ¶26,
324 Wis. 2d 536, 781 N.W.2d 730 (a failure of a defendant to
object on the record to an allegedly prejudicial communication
to the jury venire waives the issue for appeal); State v.
Williams, 2000 WI App 123, ¶¶19-21, 237 Wis. 2d 591, 614
N.W.2d 11 (failure to object to the impaneling of a biased juror
waives the issue for appeal).

We need not address this argument. Because a record was
not made of conversations between the circuit court and counsel
on this issue and because of the importance of an unbiased jury,
we exercise our discretion to address the issue of jury bias.
See State v. Tody, 2009 WI 31, ¶44, 316 Wis. 2d 689, 764
N.W.2d 737 ("Juror bias seriously affects the fairness,
integrity, or public reputation of judicial proceedings and is
per se prejudicial.").
92
State v. Faucher, 227 Wis. 2d 700, 715, 596 N.W.2d 770
(1999).
93
State v. Meehan, 2001 WI App 119, ¶35 n.7, 244
Wis. 2d 121, 630 N.W.2d 722 (citing Irwin v. Dowd, 366 U.S. 717,
723, (1961)).
94
State v. Kiernan, 227 Wis. 2d 736, 747 n.7, 596
N.W.2d 760 (1999).

67
 No. 2011AP1044-CR & 2011AP1105-CR

¶155 The question whether a juror is objectively biased is

a mixed question of fact and law. A circuit court's findings of

fact will be upheld unless they are clearly erroneous. Whether

those facts fulfill the legal standard of objective bias is a

question of law. This court ordinarily decides questions of law

independently of the circuit court. A circuit court's

conclusion on objective juror bias is, however, intertwined with

the facts of the case. Consequently, "it is appropriate that

this court give weight to the circuit court's conclusion on that

question."95 This court will "reverse [the circuit court's]

conclusion [on a juror's objective bias] only if as a matter of

law a reasonable court could not have reached such a

conclusion."96

¶156 The circuit court made inquiry of each juror to

determine whether the person was reasonable and would be willing

to set aside knowledge of the mother's conviction in assessing

the father's guilt. The circuit court informed each juror about

the mother's conviction; told each juror that the information
could be used only to assess the mother's credibility, if she

testified; and obtained from each juror an assurance that he or
she would decide the father's case solely upon the evidence

presented. The circuit court told the jurors that "the evidence
as to this defendant and how he reacted to the situation may be

95
Faucher, 227 Wis. 2d at 720.
96
Id. at 721.

68
 No. 2011AP1044-CR & 2011AP1105-CR

different, therefore there may be a different result. Do you

understand that?"

¶157 The circuit court concluded on postconviction motions

that it was extraordinary to inform potential jurors of a prior

conviction of a co-defendant; that these were extraordinary

cases and circumstances; and that the law did not require

automatic disqualification of a juror who knew of a co-

defendant's conviction. The circuit court ruled that it "cannot

find that trial counsel's agreement [to inform the jurors of the

mother's conviction] to be defective performance." Had the

circuit court concluded that the jurors were objectively biased,

the circuit court would have had to conclude that trial

counsel's stipulation to inform the jurors of the mother's

conviction amounted to ineffective assistance by trial counsel.

¶158 We recognize that evidence of a co-defendant's guilt,

under some circumstances, can be prejudicial to the defendant on

trial, and in cases in other jurisdictions, convictions have

been overturned on this ground.
¶159 In the present case, the same charges were brought

against the mother and father. The circumstances of the father
and mother were substantially the same. Nevertheless,

circumstances in the present case justified informing the jury
about the mother's status. A speedy trial in the county was

requested. The mother's case had been given immense publicity
in the county. It was important to prevent the jury from

inferring that the mother went unpunished or that the father was

69
 No. 2011AP1044-CR & 2011AP1105-CR

being singled out for prosecution.97 Furthermore, in order to

convict the father, the jury had to find that the State proved

the father had a subjective awareness that his conduct created

an unreasonable and substantial risk of death or great bodily

harm to Kara. The jury was admonished that the mother's and

father's circumstances are not precisely the same, that their

reactions may be different, and the results of the two trials

may be different.

¶160 On our independent review of the record and giving

weight to the circuit court's consideration of lack of juror

bias, we conclude that the father has not sustained his burden

to show that reasonable persons in the juror's position under

the circumstances of the instant case could not set aside their

knowledge of the mother's conviction.

* * * *

97
United States v. Sanders, 893 F.2d 133, 136-37 (7th Cir.
1990) (after a limiting instruction that co-defendant's guilty
plea was not to be considered as evidence against defendant,
admission of evidence of co-defendant's guilty plea was proper
so that jury was not left to infer that co-defendant went
unpunished or that defendant on trial was singled out for
prosecution); United States v. McGrath, 811 F.2d 1022, 1024 (7th
Cir. 1987) (even when no limiting instruction was given,
informing jury of co-defendant's guilt was not prejudicial
error; important that jury not infer that defendant had been
singled out for prosecution while co-defendant was permitted to
go free); United States v. Barrientos, 758 F.2d 1152, 1156 (7th
Cir. 1985) (when co-defendant is absent, or disappears mid-trial
after pleading guilty, better practice is for court to
acknowledge absence and instruct jury that absence is to have no
effect on the verdict regarding remaining defendants).

70
 No. 2011AP1044-CR & 2011AP1105-CR

¶161 For the reasons set forth, we conclude that the

second-degree reckless homicide statute and criminal child abuse

statute provide sufficient notice that the parents' conduct

could have criminal consequences if their daughter died. We

further conclude that the jury instructions were not erroneous;

that trial counsels' performance was not ineffective assistance

of counsel; that the controversy was fully tried; and that the

jury in the father's case was not objectively biased.

¶162 Accordingly, we affirm the judgments of convictions

and orders denying postconviction relief.

¶163 By the Court.—The judgments of conviction and orders

denying postconviction relief are affirmed.

71
 No. 2011AP1044-CR& 2011AP1105-CR.dtp

¶164 DAVID T. PROSSER, J. (dissenting). Dale and Leilani

Neumann are not likely to be viewed sympathetically by people

who read the statement of facts in the majority opinion. The

Neumanns' reaction to their daughter's illness was so

inconsistent with the normative behavior of most contemporary

parents that it is hard for people to identify with them or to

understand their thinking and values.

¶165 It would be easy to look away from such unconventional

defendants and say nothing. But the issues involved in these

cases are too important for me to remain silent. First, the

facts are not as black and white as they initially appear.

Second, the law governing the facts is imprecise and quite

confusing. Finally, the trials of the two defendants were

problematic in several respects.

¶166 The primary purpose of this writing is not to try to

change the result but to encourage the bench, the bar, and the

Wisconsin Legislature to revisit some of the troublesome

questions these cases present.

I

¶167 Madeline Kara Neumann, 11, died from diabetic

ketoacidosis resulting from untreated juvenile onset diabetes

mellitus. Majority op., ¶1. The theory of the prosecution and

of the majority is that Kara would still be alive if her parents

had provided her with medical care.

¶168 Diabetic ketoacidosis (DKA) is one of the most serious

complications of diabetes. Michelle A. Charfen & Madonna

Fernández-Frackelton, Diabetic Ketoacidosis, 23 Emergency Med.

1
 No. 2011AP1044-CR& 2011AP1105-CR.dtp

Clinics N. Am. 609, 609 (2005). It is a life-threatening

condition that requires prompt hospitalization and treatment.

Malcolm Nattrass, Diabetic ketoacidosis, 34 Med. 104, 104

(2006). Even minor delays in recognizing the condition can have

an effect on survival. Id. DKA results from insulin deficiency

and excess insulin counter-regulatory hormones. Charfen, supra,

at 609. Before the discovery of insulin in 1921, DKA caused

death in 100 percent of cases, but now that insulin is available

for treating diabetes, DKA's rate of mortality has declined to

between four percent and ten percent. Id. However, mortality

rates are higher when patients seek treatment from non-

specialists. Lynne Jerreat, Managing diabetic ketoacidosis, 24

Nursing Standard 49, 50 (Apr. 28, 2010). Every year, there are

approximately 100,000 hospitalizations for DKA in the United

States, and new-onset diabetics make up 30 percent of patients

who develop DKA. Charfen, supra, at 610.

¶169 DKA often causes vague symptoms like fatigue, nausea,

vomiting, and abdominal pain. Id. In addition, patients often
complain of excessive urination, thirst, and hunger, which are

more suggestive of DKA. Id. Roughly 25 percent of patients

produce vomit with a coffee ground appearance. Id. Patients

with DKA appear exhausted and dehydrated and may have Kussmaul

respirations, a "pattern of deep, sighing respirations." Id. at

613. Also, the breath of DKA patients may have a fruity odor

due to acetone in their breath. Id. However, not everyone can

smell ketones, so the fruity smell is not always a reliable way

to diagnose the condition. Jerreat, supra, at 49. DKA patients

2
 No. 2011AP1044-CR& 2011AP1105-CR.dtp

may not be entirely conscious as the condition progresses, and

in severe cases, the patient may slip into a coma. Charfen,

supra, at 613-14. Symptoms such as acute abdominal pain could

result from a variety of conditions, and non-specialists, as

opposed to endocrinologists, may be more likely to order extra

diagnostic tests and procedures that delay diagnosis. Claresa

S. Levetan, Kathleen A. Jablonski, Maureen D. Passaro, & Robert

E. Ratner, Effect of Physician Specialty on Outcomes in Diabetic

Ketoacidosis, 22 Diabetes Care 1790, 1793 (1999).

¶170 DKA is more common in children under five years of age

and in children whose families lack access to proper health

care. Joseph Wolfsdorf, Nicole Glaser, & Mark A. Sperling,

Diabetic Ketoacidosis in Infants, Children, and Adolescents, 29

Diabetes Care 1150, 1151 (2006). A recent survey revealed that

children are at a higher risk of developing DKA if their parents

have low incomes and low educational achievements. Id. DKA is

also more prevalent when the family does not have health

insurance because the parents delay seeking treatment. Id.
¶171 In this case, the majority opinion explains that "Kara

had suffered gradually worsening symptoms for a few weeks before

her death, leading to frequent thirst and urination,

dehydration, weakness, and exhaustion." Majority op., ¶11. The

parties stipulated, however, that "to the casual

observer, . . . Kara would have appeared healthy as late as the

Thursday before she died." Id.

¶172 According to the majority, Kara did some of her

homework on Friday, March 21, 2008, but was too tired to finish.

3
 No. 2011AP1044-CR& 2011AP1105-CR.dtp

Id., ¶12. She ate dinner in her bedroom. Id. The majority

does not state whether either of the Neumanns remained at home

during the day on Friday, but one of the briefs asserts that

Leilani Neumann came home from work about 6:00 p.m.

¶173 On Saturday, Kara had the capacity to ask her parents

whether she could stay home instead of going to work at the

family's coffee shop. Id. Leilani left to work at the shop,

returning home Saturday afternoon. Id. According to his brief,

Dale stayed home to work on the family's taxes. When Leilani

arrived home she "knew that something was wrong [with Kara] and

called her husband into the room. The parents began rubbing

Kara's legs and praying for her." Id.

¶174 From the facts set out in the majority opinion, it

appears that the critical time period to examine is the period

from Saturday afternoon, when Leilani returned from work, to

Sunday afternoon when Kara died.

¶175 When Leilani returned home, "Kara was pale and her

legs were skinny and blue." Id. She had slept all day. Id.
The parents realized that their daughter was ill and they began

to pray, and to enlist others to pray as well. Id., ¶¶13, 15–

16.

¶176 Paragraphs 17–27 of the majority opinion describe the

last 23–24 hours of Kara's life. There are facts and

descriptions in the State's briefs that paint an even more

disturbing picture of events than the account in the majority

opinion. However, there are representations of fact in the

4
 No. 2011AP1044-CR& 2011AP1105-CR.dtp

briefs of the two defendants that lay out a different, more

optimistic view of the situation.

¶177 There is some dispute about when Kara went into a

coma. A coma is a "state of deep, often prolonged

unconsciousness . . . in which an individual is incapable of

sensing or responding to external stimuli and internal needs."

The American Heritage Dictionary of the English Language 376 (3d

ed. 1992). A coma is often described as a state in which a

person cannot be awakened and does not respond normally to

light, sound, or painful stimuli.

¶178 The majority states that the Neumann juries could find

that Kara was "in a coma-like condition for 12 to 14 hours."

Majority op., ¶86. The statement appears to be consistent with

representations in Dale's brief that, on Sunday morning, Kara

moved her head and moaned in response to attempts to communicate

with her. It is not consistent with representations that Kara

was in a coma for many hours before her death.

¶179 In the majority opinion, there is no assertion that

Kara vomited or that any vomit had a coffee ground appearance.

There is no representation that the Neumanns suspected or were

told that their daughter had a diabetic condition or that they

detected a fruity odor on Kara's breath.

¶180 The majority acknowledges the Neumanns' continuing

(though clearly mistaken) belief that Kara had a fever or the

flu, and their mistaken perception that, on Sunday morning, she

was marginally better than she had been. See id., ¶¶17, 20.

The majority emphasizes the Neumanns' reservations about their

5
 No. 2011AP1044-CR& 2011AP1105-CR.dtp

conduct and the advice of those who suggested that they do more

for their daughter. It does not mention that such advice was

not universal.

¶181 DKA is a very dangerous condition but it is not always

a condition whose gravity is quickly recognized.1 To illustrate,

DKA was at issue in a medical malpractice case decided by this

court in 2004. Maurin v. Hall, 2004 WI 100, 274 Wis. 2d 28, 682

N.W.2d 866, overruled by Bartholomew v. Wis. Patients Comp.

Fund, 2006 WI 91, 293 Wis. 2d 38, 717 N.W.2d 216.

¶182 During the first few days of March 1996, five-year-old

Shay Leigh Maurin had not been feeling well. Id., ¶10. "She

was lethargic, drinking fluids all day and eating poorly." Id.

Shay's mother took her to a clinic on March 5 where a physician

assistant examined her. Id. He diagnosed the child as having

an ear infection and prescribed antibiotics. Id. However, he

"advised that Shay should have a fingerstick blood test——used to

check for diabetes——if her symptoms did not improve." Id.

¶183 "Shay's condition worsened rapidly over the next 24
hours. She was unable to eat, she vomited and dry-heaved, and

the fruity odor of her breath led her mother to fear she might

have diabetes." Id., ¶11. The mother brought Shay to a

1
By contrast, other life-threatening conditions are more
easily recognized. See, e.g., Shawn Francis Peters, When Prayer
Fails: Faith Healing, Children, and the Law 136–39 (2008)
(discussing Commonwealth v. Barnhart, 497 A.2d 616 (Pa. Super.
Ct. 1985)). Two-year-old Justin Barnhart had an abdominal tumor
that grew over the course of the summer and left his abdomen
distended. Peters, supra at 136. Justin's parents treated him
with prayer even as Justin grew so thin that his bones were
visible through his skin. Id. Justin's parents were convicted
of involuntary manslaughter. Barnhart, 497 A.2d at 630.

6
 No. 2011AP1044-CR& 2011AP1105-CR.dtp

hospital late in the evening of March 6. Id. At this point,

according to the opinion, "Shay's diabetes had progressed to

acute diabetic ketoacidosis." Id. However, the hospital

physician who examined her failed to diagnose any diabetic

condition. Id.

¶184 The following morning, March 7, when Shay returned to

the hospital, she was in serious pain. Id., ¶12. A different

doctor diagnosed acute DKA "and attempted treatment before

transferring Shay to Children's Hospital of Wisconsin. Shay

lost consciousness during the ambulance ride to [the hospital]

and died the next day," March 8. Id.

¶185 In retrospect, it is hard to imagine how the first

doctor at the hospital failed to diagnose the situation, but he

did. According to the facts in the opinion, the child was

placed in an ambulance before she lost consciousness. Because

she died the next day, she must have been under medical care for

at least 12 hours.

¶186 The facts in Maurin are at odds with the majority's
black and white narrative here and suggest that DKA does not

manifest the same symptoms or follow the same timeline in every

case.

¶187 I do not read the majority opinion as faulting the

Neumanns for failing to diagnose Kara as having DKA. I read the

majority opinion as holding that the Neumanns, after observing

Kara's condition, had a duty to provide her with medical care

because the failure to do so created an unreasonable and

substantial risk of death or great bodily harm (that is, bodily

7
 No. 2011AP1044-CR& 2011AP1105-CR.dtp

injury which creates a substantial risk of death or other

enumerated physical injuries). According to the majority, the

Neumanns were aware of "that risk," and their failure to provide

medical care caused Kara's death.

¶188 The overriding issue in this case is whether the

Wisconsin Statutes gave the Neumanns fair notice of their "duty"

to act. A larger issue is how this parental "duty" will be

interpreted in cases where a parent is confronted with similar

symptoms that do not arise from DKA.

II

¶189 Wisconsin Stat. § 940.01(1)(a) reads in part:

"[W]hoever causes the death of another human being with intent

to kill that person or another is guilty of a Class A felony."

Wis. Stat. § 940.01(1)(a) (emphasis added). This statute, which

has no relationship whatsoever to the present case, is generally

regarded as the most serious homicide statute. It is cited here

merely to highlight the element of intent. The phrase "with

intent to" is defined in Wis. Stat. § 939.23 (Criminal intent)
in subsection (4) as follows: "'With intent to' or 'with intent

that' means that the actor either has a purpose to do the thing

or cause the result specified, or is aware that his or her

conduct is practically certain to cause that result." Wis.

Stat. § 939.23(4).

¶190 Proving intent can be a challenge for prosecutors, but

establishing criminal intent demonstrates culpability.

¶191 Wisconsin Stat. § 948.21 is the child neglect statute.

This statute reads, in part:

8
 No. 2011AP1044-CR& 2011AP1105-CR.dtp

(1) Any person who is responsible for a child's
welfare who, through his or her actions or failure to
take action, intentionally contributes to the neglect
of the child is guilty of one of the following:

(a) A Class A misdemeanor.

(b) A Class H felony if bodily harm is a
consequence.

(c) A Class F felony if great bodily harm
is a consequence.

(d) A Class D felony if death is a
consequence.
Wis. Stat. § 948.21(1).

¶192 Wisconsin Stat. § 948.21(1)(d) does have a

relationship to this case. It is directed toward "[a]ny

person," including a parent, "who is responsible for a child's

welfare." Wis. Stat. § 948.21(1) (emphasis added). It

specifically contemplates a "failure to take action" that

"contributes to the neglect of the child." Id. Wisconsin

juries have long been told that "[a] child is neglected when the

person responsible for the child's welfare fails for reasons

other than poverty to provide necessary care, food, clothing,

medical or dental care, or shelter so as to seriously endanger

the physical health of the child." Wis JI——Criminal 2150; see

also State v. Evans, 171 Wis. 2d 471, 481, 492 N.W.2d 141

(1992); cf. Wis. Stat. § 48.02(12g) (defining neglect).

¶193 The penalty for child neglect that results in a

child's death is a Class D felony. Wis. Stat. § 948.21(1)(d).

This is the same as the penalty for a violation of Wis. Stat.

§ 940.06, second-degree reckless homicide.

9
 No. 2011AP1044-CR& 2011AP1105-CR.dtp

¶194 Unlike Wis. Stat. § 940.06, however, Wis. Stat.

§ 948.21, the child neglect statute, contains an intent element.

A person cannot be convicted under the child neglect statute

unless the person "intentionally contributes to the neglect of

the child." (Emphasis added.)

"Intentionally" means that the actor either has a
purpose to do the thing or cause the result specified,
or is aware that his or her conduct is practically
certain to cause that result. In addition, . . . the
actor must have knowledge of those facts which are
necessary to make his or her conduct criminal and
which are set forth after the word "intentionally[.]"

Wis. Stat. § 939.23(3).
¶195 In prosecuting the Neumanns, the State either

overlooked or consciously chose not to prosecute under Wis.

Stat. § 948.21(1)(d). The State's decision avoided the

necessity of proving intent. Instead, the State charged the

defendants, in separate cases, with second-degree reckless

homicide: "Whoever recklessly causes the death of another human

being is guilty of a Class D felony." Wis. Stat. § 940.06(1).

¶196 This statute requires a lot of interpretation. To

explain "recklessly," the majority turns to the definition of

"criminal recklessness" in Wis. Stat. § 939.24(1): "'[C]riminal

recklessness' means that the actor creates an unreasonable and

substantial risk of death or great bodily harm to another human

being and the actor is aware of that risk." (Emphasis added.)

The defined term is then converted to an adverb for use in Wis.

Stat. § 940.06.

¶197 The statutory definition of "criminal recklessness"

contemplates an actor creating an unreasonable and substantial
10
 No. 2011AP1044-CR& 2011AP1105-CR.dtp

risk of death or an unreasonable and substantial risk of great

bodily harm and being "aware of that risk." Wis. Stat.

§ 939.24(1). This requires consideration of the definition of

"great bodily harm," which is defined, in part, as "bodily

injury which creates a substantial risk of death." Wis. Stat.

§ 939.22(14).

¶198 There is no statutory definition of "creates" or

"substantial risk" or "aware" to turn to in applying "criminal

recklessness."

¶199 Wisconsin Stat. § 940.06, the second-degree reckless

homicide statute, appears to be simple enough to apply when a

person is creating an unreasonable risk of serious harm to

another by the person's action. For example, shooting a gun in

the direction of a crowd of people creates an unreasonable and

substantial risk of death or great bodily harm. The statute is

more difficult to apply when the person is not acting but

failing to take action.

¶200 In the present case, many people failed to act: Kara's

parents, her siblings, her grandparents, some of the people who

visited the Neumann family at their home. All these people

could have acted to alert authorities or summon medical care,

but they did not. Only the Neumanns have been prosecuted

because, presumably, only the Neumanns had a "duty" to act.

Thus, enforcement of the statute requires us to determine who

had a duty to act and what that duty was. These elements must

be imported into the reckless homicide statute.

11
 No. 2011AP1044-CR& 2011AP1105-CR.dtp

¶201 Wisconsin Stat. § 940.23(2)(a) is the second-degree

reckless injury statute. It reads: "Whoever recklessly causes

great bodily harm to another human being is guilty of a Class F

felony." This statute also requires us to examine definitions

of "recklessly" and "great bodily harm." See Wis. Stat.

§§ 939.24(1), 939.22(14). The majority appears to believe that

the Neumanns could have been prosecuted under § 940.23(2)(a) for

their failure to take action to provide medical care for Kara

even if she had lived.

¶202 What is confusing, however, is that Wis. Stat.

§ 940.23(2)(a) appears to be very close to Wis. Stat.

§ 948.03(3)(a), which reads: "Whoever recklessly causes great

bodily harm to a child is guilty of a Class E felony." The

former statute refers to the victim as "another human being,"

whereas the latter refers to "a child." Otherwise, the two

statutes use the same words and reach at least some of the same

conduct.2

¶203 Significantly, subsection (6) of Wis. Stat. § 948.03

then provides:

Treatment through prayer. A person is not guilty
of an offense under this section solely because he or
she provides a child with treatment by spiritual means
through prayer alone for healing in accordance with
the religious method of healing permitted under s.
48.981(3)(c)4. or 448.03(6) in lieu of medical or
surgical treatment.

2
See also Wis. Stat. § 948.03(3)(c) ("Whoever recklessly
causes bodily harm to a child by conduct which creates a high
probability of great bodily harm is guilty of a Class H
felony.").

12
 No. 2011AP1044-CR& 2011AP1105-CR.dtp

¶204 The majority is undaunted by the clear overlapping of

Wis. Stat. § 940.23(2)(a), the second-degree reckless injury

statute, and Wis. Stat. § 948.03(3)(a) in terms of a person's

action or inaction. The majority points out that the immunity

granted in § 948.03(6) applies only to § 948.03. Majority op.,

¶50. It asserts that the definition of "recklessly" in Wis.

Stat. § 940.06 and, by implication, § 940.23, is different from

the definition of "recklessly" in § 948.03 and Wis. Stat.

§ 939.24(1). Id., ¶73. It declares that it "is

apparent . . . in reading the text of the statutes, that the

phrase 'great bodily harm' is used in different ways in these

statutes." Id., ¶65.

¶205 It is true that the immunity granted by Wis. Stat.

§ 948.03(6) applies only to § 948.03. But as long as that

immunity exists, it creates uncertainty about whether specific

conduct is immune from prosecution.

¶206 The majority attacks this uncertainty, first, by

declaring that "[n]o one reading the treatment-through-prayer
provision should expect protection from criminal liability under

any other statute," majority op., ¶50, which would include the

unmentioned, overlapping Wis. Stat. § 940.23(2)(a), and, second,

by hinting that the immunity in Wis. Stat. § 948.03(6) should be

limited through judicial construction. Id., ¶51. But there is

still confusion in the law.

¶207 The different definitions of "recklessly" demonstrate

how "great bodily harm" operates differently in the two separate

statutory schemes. In Wis. Stat. § 940.06, "great bodily harm"

13
 No. 2011AP1044-CR& 2011AP1105-CR.dtp

is incorporated into the definition of recklessness to describe

the nature of the prohibited conduct, whereas in Wis. Stat.

§ 948.03(3)(a) "great bodily harm" is used to describe the

result of the prohibited conduct. Section 940.06(1) prohibits

reckless conduct that results in death, where the reckless

conduct means an action that "creates an unreasonable and

substantial risk of death or great bodily harm." Wis. Stat.

§ 939.24(1) (emphasis added). In contrast, § 948.03(3)(a)

prohibits reckless conduct that causes great bodily harm, where

the reckless conduct means "conduct which creates a situation of

unreasonable risk of harm." Wis. Stat. § 948.03(1) (emphasis

added). Thus, the difference is that Wis. Stat. § 940.06(1)

prohibits behavior that creates a greater risk (great bodily

harm), whereas Wis. Stat. § 948.03(3)(a) prohibits behavior that

creates a smaller risk (harm).

¶208 If the difference between the use of "great bodily

harm" in Wis. Stat. § 940.06(1) and Wis. Stat. § 948.03(3)(a)

saves the two statutes from a collision, the same cannot be said
of § 948.03(3)(c). Section 948.03(3)(c) inexplicably states,

"[w]hoever recklessly causes bodily harm to a child by conduct

which creates a high probability of great bodily harm is guilty

of a Class H felony." Wis. Stat. § 948.03(3)(c). This section

is severely flawed because it contains a double description of

the prohibited conduct. Section 948.03 uses "recklessly" to

mean conduct that "creates a situation of unreasonable risk of

harm," § 948.03(1), but the statute goes further to define the

prohibited conduct as that "which creates a high probability of

14
 No. 2011AP1044-CR& 2011AP1105-CR.dtp

great bodily harm." Wis. Stat. § 948.03(3)(c). It is this

definition of prohibited conduct within § 948.03(3)(c) that

destroys fair notice.

¶209 Wisconsin Stat. § 940.06(1) and Wis. Stat.

§ 948.03(3)(c) regulate the same conduct and therefore do not

provide fair notice. The "high probability of great bodily

harm" in § 948.03(3)(c) is almost identical to the "substantial

risk of death or great bodily harm" in Wis. Stat. § 940.06(1).

See Wis. Stat. § 939.24 (defining criminal recklessness as it

applies to § 940.06(1)). It is possible to quibble over whether

"high probability of great bodily harm" is more or less severe

than "substantial risk of great bodily harm," but criminal

liability should not depend on an unwinnable battle over

semantics. Therefore, Wis. Stat. § 940.06(1) and Wis. Stat.

§ 948.03(3)(c) prohibit the same conduct and differ only by the

prohibited result. Since § 948.03(6) provides a treatment-

through-prayer immunity for the conduct in § 948.03(3)(c), the

parents should not be liable for that same conduct under Wis.
Stat. § 940.06(1).

¶210 In addition to the different uses of "great bodily

harm" and different definitions of "recklessly," the majority

suggests that the subjective awareness requirement in Wis. Stat.

§ 940.06(1) mitigates any vagueness because it requires the

actor to be aware of the unlawfulness of the conduct. Majority

op., ¶77. However, that reasoning is not persuasive where the

vagueness makes it impossible for parents to know what conduct

is unlawful. Under the Neumanns' interpretation of the statute,

15
 No. 2011AP1044-CR& 2011AP1105-CR.dtp

it was perfectly lawful for them to create a high probability of

great bodily harm because the treatment-through-prayer immunity

in Wis. Stat. § 948.03(6) allowed that conduct. Therefore, it

is hard to see how being subjectively aware of a risk that the

parents believed was lawful could assuage vagueness that makes

it impossible to determine when conduct is not lawful.

¶211 The word "aware" in the Wis. Stat. § 939.23 definition

of "intentionally" (that is, "aware that his or her conduct is

practically certain to cause [a] result") should be contrasted

with the word "aware" in the Wis. Stat. § 939.24 definition of

"criminal recklessness" ("aware of that risk"). When "that

risk" is not definite, the awareness of "that risk" cannot be

definite, either.

¶212 The majority opinion explains that the due process

issue in these prosecutions is "whether the applicable statutes

are definite enough to provide a standard of conduct for those

whose activities are proscribed." Majority op., ¶33.

Fair notice is part of the due process doctrine of
vagueness. "[A] statute which either forbids or
requires the doing of an act in terms so vague that
men of common intelligence must necessarily guess at
its meaning and differ as to its application[,]
violates the first essential of due process of law."
Id. (quoting Connally v. Gen. Constr. Co., 269 U.S. 385, 391

(1926)).

¶213 The Neumanns claim that the reckless homicide statute

is too murky to give sufficient notice as to when parental

choice of treatment through prayer becomes illegal. Given the

nature of Kara's illness, as well as the imprecision in the

16
 No. 2011AP1044-CR& 2011AP1105-CR.dtp

statutory language, I agree. There is a due process problem

here. On the facts before us, the statutes are very difficult

to understand and almost impossible to explain. Indeed, the

statutory scheme is so difficult to explain that if a prayer-

treating parent were to consult an attorney on how he or she

could prayer treat and stay within the bounds of the law,

virtually any attorney would be at a loss to reasonably advise

the client. The concerns stated would not have been so

pronounced if the Neumanns had been prosecuted under the child

neglect statute, Wis. Stat. § 948.21(1)(d).

III

¶214 The second-degree reckless homicide statute (Wis.

Stat. § 940.06) is different from the child neglect statute

(Wis. Stat. § 948.21) in that it does not include any explicit

language authorizing the prosecution of death caused by

omission. The Neumanns concede, however, that defendants may be

prosecuted for reckless homicide if they violate a known legal

duty to act. State ex rel. Cornellier v. Black, 144

Wis. 2d 745, 758, 425 N.W.2d 21 (Ct. App. 1988).

¶215 In Cornellier, the court said:

It is just as much an "act" to deliberately or
recklessly refrain from performing a known legal duty
as it is to negligently perform that duty. We
conclude, therefore, that the statute, impliedly, if
not directly, acknowledges that the crime of reckless
homicide may be committed by omission, as well as
commission.
Id.

¶216 This principle may be sound but the truth is that

Cornellier was decided under a statute that was repealed and was
17
 No. 2011AP1044-CR& 2011AP1105-CR.dtp

different from the current statute. The former statute read as

follows:

Homicide by reckless conduct. (1) Whoever causes
the death of another human being by reckless conduct
is guilty of a Class C felony.

(2) Reckless conduct consists of an act which
creates a situation of unreasonable risk and high
probability of death or great bodily harm to another
and which demonstrates a conscious disregard for the
safety of another and a willingness to take known
chances of perpetrating an injury. It is intended
that this definition embraces all of the elements of
what was heretofore known as gross negligence in the
criminal law of Wisconsin.
Wis. Stat. § 940.06 (1985–86).

¶217 Cornellier also was heavily influenced by an alleged

omission case, State v. Williquette, 129 Wis. 2d 239, 385

N.W.2d 145 (1986). Williquette also was decided under a

different statute, Wis. Stat. § 940.201 (1983–84), which

provided, in part, "[w]hoever . . . subjects a child to cruel

maltreatment, including . . . severe bruising, lacerations,

fractured bones, burns, internal injuries or any injury

constituting great bodily harm . . . is guilty of a Class E

felony." Williquette, 129 Wis. 2d at 242 n.1 (quoting Wis.
Stat. § 940.201) (emphasis added). The word "subjects" can mean

"[t]o expose to something"3 in contrast, say, to bruise, cut,

fracture, or burn. "Exposing" a person to danger may be viewed

as an "act" or as a failure to act through passivity.

3
The American Heritage Dictionary of the English Language
1788 (3d ed. 1992).

18
 No. 2011AP1044-CR& 2011AP1105-CR.dtp

¶218 In any event, both Williquette and Cornellier speak,

directly or indirectly, of a defendant's failure to perform a

"known legal duty." This inevitably presents the question of

what "known legal duty" the Neumanns failed to perform.

¶219 The Neumanns' "known legal duty" had to be inserted

into the standard jury instruction for second-degree reckless

homicide. See Wis JI——Criminal 1060. The jury instruction in

Leilani Neumann's case read as follows:

Second-degree reckless homicide is defined in
Section 940.06 of the Criminal Code of Wisconsin, and
it's committed by one who recklessly causes the death
of another human being. Before you may find the
defendant guilty of second-degree reckless homicide,
the [State] must prove by evidence which satisfies you
beyond a reasonable doubt that the following two
elements were present.

First, the defendant caused the death of Madeline
Kara Neumann. "Cause" means that the defendant's
conduct was a substantial factor in producing the
death. Conduct can be either by an act or an omission
when the defendant has a duty to act.

One such duty is the duty of a parent to protect
their children, to care for them in sickness and in
[health], and to do whatever is necessary for their
preservation, including medical attendance, if
necessary.
(Emphasis added.) The emphasized language was added by the

circuit court to the standard jury instruction.

¶220 The instructions in Dale Neumann's case changed the

explanation of duty: "One such duty is the duty of a parent to

protect their children, to care for them in sickness and in

health."

¶221 There is obviously a distinction between the two

instructions. Dale's instructions do not use the word "medical"
19
 No. 2011AP1044-CR& 2011AP1105-CR.dtp

at all. Neither instruction uses the phrase "provide medical

care when necessary." See majority op., ¶¶100, 104. Neither

instruction refers to a "known legal duty." There was

imprecision in the circuit court's instructions because these

cases were breaking new ground.

¶222 An unresolved question is whether the prayer treatment

immunity provision in Wis. Stat. § 948.03(6) modifies a parent's

"duty" to provide medical care and, if so, when and how.

¶223 The duty question would have been answered in a

prosecution under the child neglect statute. But here, in

prosecutions for second-degree reckless homicide under Wis.

Stat. § 940.06, the court had to make up an answer, suggesting

that a "legal duty" was not clear. See Majority op., ¶¶109,

111. This underscores the inadequate notice provided to the

Neumanns.

IV

¶224 There are several aspects of the Neumann trials that

are problematic.
A. Jury Instructions

¶225 As noted above, the jury instructions with respect to

"duty" are not consistent and may not provide a clear, accurate

statement of parental duty.

¶226 The standard jury instruction for second-degree

reckless homicide reads in part: "If you are satisfied beyond a

reasonable doubt that the defendant caused the death of (name of

victim) by criminally reckless conduct, you should find the

defendant guilty of second degree reckless homicide. If you are

20
 No. 2011AP1044-CR& 2011AP1105-CR.dtp

not so satisfied, you must find the defendant not guilty." Wis

JI——Criminal 1060.

¶227 The circuit court followed the instruction closely in

Dale Neumann's case. In Leilani Neumann's case, however, the

key paragraph is substantially rewritten to read:

If you are satisfied beyond a reasonable doubt
that the defendant directly committed all of the two
elements of second-degree reckless homicide or that
the defendant intentionally aided and abetted the
commission of that crime, you should find the
defendant guilty. If you are not so satisfied, then
you must find the defendant not guilty.
¶228 The revised paragraph's reference to intentionally

aiding and abetting "the commission of that crime," combined

with the deletion of the phrase "caused the death of [name of

victim]" muddles an already confusing legal analysis.

¶229 The jury instructions make no reference to the

religious motivation of the defendants. It may be true that the

defendants were not entitled to rely——in the jury instructions——

on the treatment-through-prayer provision in Wis. Stat.

§ 948.03(6). However, the sole reference to religion in the

jury instructions——"The Constitutional Freedom of Religion is

absolute as to beliefs but not as to conduct which may be
regulated for the protection of society"——can only be viewed as

a repudiation of the defendants' position and a legal ruling
that any "duty" imposed upon parents to provide medical care for

their children is the same for prayer-treating parents as it is

for other parents.

B. Decisions on Dale's Jury

21
 No. 2011AP1044-CR& 2011AP1105-CR.dtp

¶230 Prior to voir dire in Dale Neumann's case, counsel for

the defendant and the State met in Judge Vincent Howard's

chambers and had an off-the-record discussion about how a jury's

knowledge of Leilani Neumann's prior conviction for the same

crime would be treated. Dale Neumann's counsel claimed that he

objected to allowing any jurors with knowledge of the prior

conviction to be on the panel, reasoning that "knowledge of the

prior conviction would have to influence" a juror's decision in

Dale Neumann's case.

¶231 Again, there is no record of this in-chambers

discussion, and thus no record of counsel's objection to jurors

with prior knowledge of Leilani Neumann's conviction. In his

written decision on Dale and Leilani Neumann's joint post-

conviction motion, Judge Howard acknowledged that he probably

"remarked off the record that prior knowledge alone does not

necessarily disqualify a juror." Faced with what appeared to be

a ruling from the judge and the possibility that some jurors had

knowledge of Leilani Neumann's conviction while some did not,

Dale Neumann's counsel and the State agreed that all jurors

should be informed of the wife's conviction rather than risk

this fact being revealed during deliberations.

¶232 It is troubling that Dale Neumann's jury was informed

of Leilani Neumann's conviction, especially since the underlying

facts were the same, the law was the same, and the parents

appear to have made their decisions jointly in the last 24 hours

of Kara's life. It is hard to believe that a reasonable person

in a juror's position at Dale Neumann's trial could have avoided

22
 No. 2011AP1044-CR& 2011AP1105-CR.dtp

being influenced by the result in Leilani Neumann's trial. Cf.

State v. Faucher, 227 Wis. 2d 700, 718–19, 596 N.W.2d 770

(1999).

¶233 Another concern arising out of the absence of a

transcript of the in-chambers meeting is that we do not know

whether Dale Neumann was present at that meeting. If he was not

present, he did not hear vital discussion about potential jurors

having knowledge about Leilani's prior conviction. That

discussion could have affected his strategy and decision and

might have changed the result of his trial.

V

¶234 This case is a tragedy in virtually every respect. I

cannot say that the result of the Neumann trials is unjust.

Nonetheless, there were and are serious deficiencies in the law

and they ought to be addressed by the legislature and the

courts. Failing to acknowledge these deficiencies will not

advance the long-term administration of justice.

¶235 For the foregoing reasons, I respectfully dissent.

23
 No. 2011AP1044-CR& 2011AP1105-CR.dtp

1