(dissenting). I would not modify our prior mandate. On reconsideration of our prior opinion and mandate, I conclude that the mandate is correct: Gustafson’s conviction for sexual assault of B.G. should be reversed and the cause remanded for a new trial.1
Four justices — a majority of this court — agreed initially and agree on reconsideration that the conviction should be reversed because the trial was infected by prejudicial error. Four justices agree that the trial, viewed as a whole, did not pass muster and that the defendant was denied a fair trial. They do not agree as to the grounds of reversal, but they agree on reversal.
Three justices — a minority of this court — conclude that the conviction should be affirmed. As a result of the decision rendered today, the case is disposed of in conformity with the wishes of a minority of three.
According to the decision today, unless a majority of the justices agree as to a particular prejudicial error, the trial court’s judgment of conviction must be affirmed. I do not believe that we can let this criminal conviction stand when a majority of the court has voted that the conviction is so defective as to require reversal.
*465The majority’s reliance on Will of McNaughton, 138 Wis. 179, 118 N.W. 997, 120 N.W. 288 (1909), is misplaced. McNaughton can be distinguished. That case, unlike this one, is a civil case. While I might on further reflection conclude that the civil-criminal distinction is artificial, I am persuaded that in a criminal case in which a liberty interest in involved and the government is using its power against the individual, greater care must be taken to safeguard the individual’s rights. Considering the public’s interests in convicting guilty persons and in assuring everyone a fair trial, I conclude that this case demands a reversal. A reversal of the conviction does not mean the defendant goes free; it means he is retried and erroneous evidence can not be considered by the jury.
Furthermore, the McNaughton opinion emphasized that if the judgment were reversed there would be no guidance to the trial court, the second trial would proceed exactly as the first trial, and on appeal the appellate court would again be divided. In that case as a result of the fragmentation of the court “a jury case could never be terminated.” McNaughton, supra, 138 Wis. at 214, quoted at p. 462, supra. In this case there is guidance for the trial court, and the case can be terminated. Four justices agreed that the instructions were proper; six justices agreed that the admission of certain evidence was error. We do not know Justice Callow’s position on the evidence since he dissented without opinion; his dissent could be interpreted to mean that the admission of the evidence was not error. On retrial this evidence would be omitted. If the second trial, without this evidence, resulted in a conviction, the conviction would be affirmed by this court on a 4-3 vote: the three justices objecting on the unanimity issue might continue to vote to reverse the conviction; *466Justice Ceci would change his vote from reversal to affirmance because the error was eliminated.
Even if the court is not willing to adopt as a general practice the United States Supreme Court’s practice of deciding reversal or affirmance by pooling the votes of the justices, the McNaughton rule with its emphasis on the lack of guidance is not applicable in this case.
1 conclude that considerations of due process under both the federal and state constitutions require this court to reverse this judgment of conviction because a majority of the justices — albeit for diverse reasons— supports that disposition of the case and provides guidance for the trial court on a new trial. The bottom line question for the appellate court in most criminal cases is whether to affirm or reverse the conviction. The due process basic concept of fairness should mean, at a minimum, that the defendant’s challenge to an adjudication of guilt be decided consistent with the majority vote.2
*467For the reasons set forth I would affirm our initial mandate.
I am authorized to state that Chief Justice Nathan S. Heffernan and Justice William A. Bablitch join in this dissent.The defendant asks that Gustafson’s conviction for sexual assault of C.Y. be reversed. I would affirm that conviction. The “fragmentation” issue does not arise in that conviction; the majority of the justices agreed that Gustafson’s conviction for the second degree sexual assault of C.Y. should be affirmed. I am not persuaded that the prejudicial errors in the count involving B.G. spilled over to the C.Y. count.
Furthermore, there is something “fundamentally unfair for a court majority to declare, on the one hand, that there was unfairness below, but to refuse, on the other hand, to do anything about it.” Leonard, The Correctness Function of Appellate Decision-Making : Judicial Obligation in an Era of Fragmentation, 17 Loyola L.A.L. Rev. 299 (1984).
Professor Leonard argues that this due process argument comports with the general understanding of the function of an appellate court. Once the court decides that a case fits its criteria for review and takes the case, the court has a dual function: 1) to guard the rights of the litigants, and 2) to set forth the law applicable to the case for the guidance of litigants, lawyers and the courts. Once the court decides to review a case, Professor Leonard believes the function of explicating the law is subservient to the function of deciding the case to guard the rights of the litigants. If it were not, the appellate court would be empowered to render advisory opinions. Professor Leonard would apparently conclude that a reversal was required in this case even if the initial opinions did not provide guidance for the trial court.