State v. Neumann, 2011AP1044 and 2011AP1105, on certification from the court of appeals; case activity; majority opinion by C.J. Abrahamson.
In a 94-page decision, including a lone dissent by Justice Prosser, the Supreme Court of Wisconsin has affirmed the 2nd degree reckless homicide convictions of Dale and Leilani Neumann for the death of their 11-year old daughter, Kara, who died of diabetic ketoacidosis caused by untreated juvenile onset diabetes mellitus. She had experienced gradually worsening symptoms for a few weeks, but took a noticeable turn for the worse about 2 days before her death. Her parents, who are Pentecostals, thought she had the flu and treated her with prayer. The case raises a host of interesting legal issues, but On Point has space for just three.
Due process–fair notice–vague statutes
The leading issue is whether the interaction of 4 statutes–§ 940.06(1) (re 2nd degree reckless homicide), § 948.03(3)(a) (the criminal child abuse statute), § 948.03(6) (the prayer treatment exception), and §939.22(14)(defining “great bodily harm”)–creates a lack of fair notice of prohibited conduct. According to the parents, the confusion stems from the fact that the very conduct protected by the prayer-treatment statute appears to be criminalized by the 2nd degree reckless homicide statute. How were they to know when their prayer treatment had crossed the line into criminal liability? The majority’s answer is simple: “The protection for treatment through prayer explicitly and exclusively applies to the child abuse statute.” Slip op. at ¶64. If the parents’ interpretation were correct, then “all prayer-treating parents would in effect be immunized for 2nd degree reckless homicide.” Slip op. at ¶79. With that, SCOW joined the majority of courts around the country, which have found that prayer-treatment provisions do not bar criminal prosecutions of parents
¶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. 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.
Jury instructions–parent’s duty to provide medical care
The Neumanns requested a new trial in the interest of justice on the theory they did not have a legal duty to provide medical care to Kara, and the jury instruction referring to such a duty was thus prejudicial. Slip op. at ¶ 90. The Neumanns were tried separately and the “duty” instructions given at the two trials were slightly different. At Dale’s trial the jury was told that parents have “a duty to protect their children, to care for them in sickness and in health.” At Leilani’s trial, the jury was told that parents have a “duty to care [for their children] in sickness and in death [sick], and to do whatever is necessary for their preservation, including medical attendance, if necessary.” Slip. op. at ¶99. The Court noted that the statute books are replete with provisions imposing responsibility on parents for the care of their children, including . . . medical care when necessary.” Slip. op. ¶104. And so are the case books. See, e.g. State v. Williquette, 129 Wis. 2d 239, 385 N.W.2d 145 (1986)(parent has duty to provide medical attendance to child). Never mind about the Due Process Clause’s protection of a parent’s right to make decisions about the care , custody and control of their kids:
¶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.
¶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.”[
One more interesting tidbit. Leilani was tried and convicted first. Her case generated lots of publicity, so the circuit court suggested a change of venue or postponement of Dale’s trial. He declined in favor of a speedy trial in Marathon County. To ensure that all jurors had the same information, defense counsel stipulated that each prospective juror be told of the mother’s conviction during voir dire and questioned about his or her willingness to remain objective when assessing Dale’s guilt. SCOW noted that evidence of a co-defendant’s guilty can be prejudicial to the defendant on trial and undo a conviction. Not in this case:
¶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 being singled out for prosecution. 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.
Brevity is the soul of a decent post, so this one leaves much uncovered. Lucky for On Point fans, the majority opinion, at ¶9, provides a handy table of contents to guide readers toward specific issues. Those looking for fodder for future petitions for review should read Justice Prosser’s dissent closely. Once he moves beyond challenging the majority’s rendition of the facts, he delves into a nitty gritty analysis of the 4 statutes at issue and finds a lot of ambiguity. He aptly concludes: “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.” Dissent, ¶234.