3 Sep 2008

Parents seek religious exemption for medical neglect murder of daughter

StarTribune - Minneapolis-St. Paul    September 2, 2008

 Father renews call to dismiss homicide charge

by Robert Imrie | Associated Press

WAUSAU, Wis. - If a couple accused of killing their 11-year-old daughter by praying instead of seeking medical care goes to trial, the courts will wrongly become entangled in constitutionally protected religious matters, an attorney argued Tuesday.

A 19-page brief filed in Marathon County Circuit Court outlines an expected long legal fight on whether Dale and Leilani Neumann can be prosecuted for second-degree reckless homicide under Wisconsin law because they prayed instead of taking their daughter to the doctor as she died of diabetes.

Their attorneys have asked a judge to dismiss the charges, arguing the law is "unconstitutionally vague" as it applies to the allegations in the complaint. The defendants also contend the charges unconstitutionally infringe on their right to freely exercise their religion.

Prosecutors have until Oct. 3 to submit a response.

Attorneys for both sides have declined comment about the case, citing a judge's gag order that banned them from talking about it outside the courtroom.

An autopsy determined Madeline Neumann — called Kara by her parents — died from undiagnosed diabetes at the family's rural Weston home on Easter. The girl likely had symptoms for weeks and perhaps months before she died, court records said.

Leilani Neumann, 40, has said the family believes in the Bible, which says healing comes from God, and she never expected her daughter to die as they prayed for her. The parents told investigators Kara had not been to a doctor since she was 3.

According to the criminal complaint, Dale Neumann, 46, considered his daughter's illness "a test of faith," and Leilani Neumann thought her daughter was under a "spiritual attack" that could be overcome with prayer.

Prosecutors contend Kara could not speak, eat, drink, walk or breathe easily for about 48 hours before her death — enough time for the parents to seek medical help. The parents failed in their legal duty to care for the child, prosecutors allege.

Second-degree reckless homicide is punishable by up to 25 years in prison. The parents have pleaded not guilty. No trial date has been set.

In the brief filed Tuesday, Dale Neumann's attorney, Jay Kronenwetter, argued that no jury should be put in a position to judge the wisdom of someone's religious beliefs and the power of prayers.

It would wrongly amount to a judicial ruling on "proper religious beliefs," Kronenwetter wrote.

"The notion that a Wisconsin court will be deciding the likelihood of divine intervention in the affairs of one of its citizens is as offensive to the principles of religious freedom as any to be found in reported case law," the attorney wrote. "This prosecution will ask a jury to decide the truth or falsity of the defendant's religious belief in the healing power of prayer."

There's no way for a jury to be impartial in that decision, Kronenwetter said.

The law under which the Neumanns were charged is also in direct conflict with another law that declares it is not child abuse in Wisconsin to treat illness through prayer alone, Kronenwetter wrote.

That's why the Neumanns were charged under a separate law that says whoever recklessly causes the death of another human being is guilty of a felony, he wrote. That law makes no mention of a parent's choice to treat illness through spiritual means.

"It is the height of irony that the state's position is that a parent's prayers become criminal solely when the parent fails to prophetically divine when those prayers will have the desired effect," Kronenwetter wrote. "This argument would have the court hold that prayer for the treatment of illness is endorsed by the Legislature only so long as it works."

Kronenwetter said courts in Minnesota and Florida have ruled that conflicting laws similar to Wisconsin's denied defendants in prayer cases their constitutional due process rights.

In a separate court filing, Judge Vincent Howard said he expects to rule on the constitutional issues by Nov. 28.

"Due to the complexity of the motion and the lack of precedent, it is anticipated that the decision made by this court will be appealed and therefore it is not now known when this matter may be ready for trial," Howard said.

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