                                                                    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).

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                                                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).

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                                           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.




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        ¶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
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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.



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      ¶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.").

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       ¶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"

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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

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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,

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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


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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
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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).

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     ¶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"
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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

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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


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      ¶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

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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.




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