State justices to consider novel issues in prayer case death

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When the parents of 11-year-old Kari Neumann saw their daughter lying on the floor, breathing roughly, with bluish legs, the state of Wisconsin believes they should have known that Kari needed immediate medical attention.

Two separate Marathon County juries agreed with the state in the now-consolidated matters of State v. Dale L. Neumann and State v. Leilani E. Neumann, 2011 AP 1044 and 2011 AP 1105, certified to the Wisconsin Supreme Court.

At issue is the question: Does language in Wisconsin criminal statutes have to be so well-articulated that parents applying prayer treatment to their sick daughter will know exactly when they will cross the line from legally immune into criminally responsible behavior?

The state of Wisconsin said no, but defendants Dale and Leilani Neumann assert that two Wisconsin statutes, in conjunction with a prayer treatment exception, create such a jumble of overlapping obligations that they violate due process notice provisions of the constitution.

For several weeks before her death on March 23, 2008, Kari told her parents that she felt weak and tired, was often thirsty and frequently used the bathroom.

The defendants indicated that their family would typically turn to prayer for treatment. Strong devotees of the Pentecostal faith, the Neumanns felt that seeking medical attention first before turning to God would be “disobedient” to God.

Their beliefs were never challenged in court. Both defendants explained how they had forsworn conventional medical care, other than an occasional aspirin, and believed since doing so that their family’s health had improved. The Neumanns and their four children ran a small, family-owned coffee shop called “Monkey Mo’s,” and helped to organize and host prayer meetings.

The day before she died, Kari again said that she was weak and tired. The Neumanns decided she should stay home from work at the coffee shop and get some rest. Dale allegedly asked Kari how she was doing. Kari responded that she was just tired.

Just after 5 p.m. that same day, Leilani returned from the coffee shop to find Kari on the couch, “weak, looking pale, blueness in her legs, with labored breathing,” according to trial testimony.

Dale and Leilani quickly sent an email out to a network of fellow prayer treatment believers, asking them to pray for Kari, who “was weak, pale and had hardly any strength.”

Later that night, Kari collapsed on the floor in the bathroom. Eventually, she slept between her two sisters, but some testimony suggests she was comatose even before midnight.

Around 2:30 p.m. the next day, after a stream of concerned friends visited the Neumann home to help pray and support the parents, a relative in California called 911, and a second emergency call was placed when Kari stopped breathing.

When the EMT’s arrived, Dale was administering CPR, but it was too late. Kari Neumann was pronounced dead about an hour later at the local hospital, due to diabetic ketoacidosis. Doctors said she looked like a “cancer patient, very emaciated, wasted and shrunk.”

Court testimony from Dr. Ivan Zador mirrored a barrage of other medical evidence presented at trial, suggesting that the Neumanns should have known Kari was in distress.

End stage ketoacidosis is “reversible for even comatose patients,” Zador testified, noting that even if treated late in the process, the overall survival rate for diabetic ketoacidosis is 99.8 percent.

Husband and wife were tried separately. Both were found guilty of second degree reckless homicide and sentenced to 10 year’s probation, further serving 30 days in jail in March, every other year for 6 years.

With separate counsel, both defendants appealed. The appellate court certified the case directly to the Wisconsin Supreme Court for a decision on several novel issues presented on appeal, at which point the cases were consolidated.

On appeal, defense counsel asserted that the “overlapping” provisions of the reckless homicide statute (Wis. Stat. 940.06) and the criminal child abuse statute (948.03) with its prayer treatment exception (948.03(6)) were unconstitutional because legally permissible behavior in one statute was criminalized in the other.

Because of this alleged overlap, the defense briefs stated, the statutes “fail to give “fair warning” as to what conduct by the parents is prohibited,” citing State of Wisconsin v. Manufacturer’s & Commerce, 227 Wis.2d 650 (1999). Quoting Manufacturer’s, counsel further noted “because we assume that [persons are] free to steer between lawful and unlawful conduct, we insist that laws give the person of ordinary intelligence a reasonable opportunity to know what is prohibited … .”

The idea of due process notice is further complicated here by the prayer treatment exception, which says that a person cannot be prosecuted under the child abuse statute “solely because” they are providing a child “with treatment by spiritual means through prayer alone for healing.”

The defendants cited numerous cases from other jurisdictions, including a Minnesota Supreme Court case (State v. McKown, 4754 N.W.2d 63 (1991), and a Florida Supreme Court case (Hermanson v. State, 604 So.2d 775 (1992), where defendants in each case lost children with undiagnosed diabetes after prayer treatment.

In each case, the reversing court found that overlapping statutes created a vagueness which would prevent a defendant from being able to get fair notice of criminal conduct.

Additionally, the defendants asked for reversal and a new trial because: 1) all jurors in Dale’s trial were told of his wife’s previous conviction (she was tried first), 2) the jury never properly heard the “good faith belief” defense that could have led to different jury verdicts, and 3) the jury instructions were erroneous.

In its response, the state asserted that there is no obligation for statutes to be precisely definitive and describe all legally culpable acts. Citing State v. McCoy, 143 Wis.2d 274 (1988), it noted that “a statute is not unconstitutional merely because the boundaries of the prohibited conduct are somewhat hazy. We are expected to recognize the line between permissible and prosecutable behavior. If the line is sometimes hard to see, then the assumption of risk is ours.”

Addressing the issue of possible overlap of statutory conduct, the state dismissed the defendants’ allegations that 948.03, 948.03(6) and 940.06 even could overlap. The reckless conduct statute penalizes the reckless infliction of death, not “great bodily harm,” it argued, and has a higher threshold of evidence necessary to prove guilt than the child abuse statutes.

Citing its own supporting case law from other jurisdictions, including State v. Hays, 964 P2d.1042 (Oreg.Ct. App.1998), and Massachusetts case Commonwealth v. Twitchell, 617 N.E.2d 609 (1993), the state asserted that there were numerous examples where state laws which allegedly overlapped in fact did not, including prayer treatment exceptions where courts found that fair notice was still provided.