WILL, Senior District Judge.
This appeal from the district court’s denial of appellant Stevie Cole’s petition for a writ of habeas corpus involves two relatively straight-forward questions: (1) whether at the time of Cole’s offense Wisconsin law required proof of “great bodily harm” to support a mayhem conviction and, if it did, (2) whether federal law protects a criminal defendant from conviction by a jury that has received no instruction on an essential element of the crime charged. Based on the decisions of the Wisconsin appellate courts, we find that at the time Cole committed the acts in question great bodily harm was an essential element of Wisconsin’s mayhem offense. We therefore address the constitutional question and conclude that the trial court’s complete failure to instruct the jury on an essential element of mayhem was a violation of Cole’s right to due process. Because the fourteenth amendment protects an accused from conviction except upon “proof beyond a reasonable doubt of every fact necessary to constitute the crime charged,” In re Winship, 397 U.S. 358, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970), we reverse the district court and grant Cole’s petition.
I. Background
Following a jury trial in the Milwaukee County Circuit Court, Cole was found [414]*414guilty of armed robbery, operating a vehicle without the owner’s consent, and mayhem. He was sentenced to twelve years for armed robbery, twelve years consecutive for mayhem, plus two years concurrent for operating a vehicle without the owner’s consent. Only the mayhem conviction is at issue in this appeal.
The charges against Cole grew out of an incident occurring in the early morning hours on December 20, 1980. Inez Johnson, a cab driver, was called to a Milwaukee address. When she arrived, four men entered her cab, three in the back seat and one, Stevie Cole, in the front. As Johnson began to drive away, Cole placed a knife to her neck, ordered her to pull over, and demanded money. Johnson handed over a purse containing approximately sixty dollars. Moments later, she reached up to turn on the overhead light. As she did so, Cole cut her three times on the left hand and arm with the knife. Johnson was then forced out of the cab and the four men drove away.
Three days later, Cole was arrested and charged as an habitual criminal with the three crimes mentioned above — armed robbery, operating a vehicle without the owner’s consent, and mayhem. The charges were tried to a jury in late February, 1981. At trial, Johnson testified that she was taken to a hospital emergency room shortly after the incident. There she was given a shot to prevent infection and stitches to close her wounds. She received three stitches in one cut and five in another; the third cut, the doctor told her, would heal by itself without stitches. As a result of the cutting, Johnson has two scars, one in a semicircle one to one and one-half inches long on her left wrist, and another about two and one-half inches long on the palm of her left hand. Since the incident, she occasionally feels pain in her hand when she is driving.
At the close of the evidence, the trial court and counsel held a jury instructions conference. The trial court proposed to give the then-current Wisconsin pattern instruction on the elements of the crime of mayhem. Though the instruction, No. 1280 of the Wisconsin pattern criminal jury instructions, has since been revised to include great bodily harm as an element of mayhem, at the time of trial it contained only two elements: (1) a cutting or mutilation (2) performed with an intent to disfigure. Neither side objected to the giving of the pattern instruction and the trial court used it almost verbatim. The jury found Cole guilty of each of the three crimes charged.
In September, 1981 Cole — through his new counsel, an assistant state public defender — filed a post-conviction motion raising for the first time his objection to the jury instructions on mayhem. Cole argued that under Kirby v. State, 86 Wis.2d 292, 272 N.W.2d 113 (Ct.App.1978), a conviction for mayhem requires proof that the victim suffered great bodily harm. Since the instructions did not inform the jury of this requirement, Cole concluded, his rights to due process and to a jury trial were violated. The trial court, finding that Kirby was not controlling and that the pattern instruction properly informed the jury of the elements of mayhem, denied Cole’s motion for a new trial.
Cole appealed to the Wisconsin Court of Appeals. On appeal, Cole again maintained that the jury instructions were erroneous under Kirby, resulting in a violation of his constitutional rights. The state, in its briefs, argued that Kirby was wrongly decided; that the language in Kirby stating that great bodily harm was an element of mayhem was dicta and should not be followed; and that the fact that the Wisconsin Criminal Jury Instructions Committee had not amended its instruction No. 1230 in the three years since Kirby was decided was persuasive evidence that the instruction correctly stated the law.
In an unpublished opinion, the Wisconsin Court of Appeals affirmed Cole’s conviction. Curiously, the opinion — which was authored by the same judge who wrote the Kirby opinion — contained no discussion of Kirby or the issue it presented, despite the thorough treatment given these questions in the parties’ briefs. The opinion merely hinted at the problem in the sentences that follow:
[415]*415The defendant argues that the jury was not properly instructed on the essential elements of mayhem. The trial court gave the pattern jury instruction,7 which includes the essential elements of the crime. The defendant did not object to the instruction as given.8
State v. Cole, No. 81-1938-CR, slip op. at 3-4 (Wis.Ct.App. July 20, 1982) [108 Wis.2d 779, 324 N.W.2d 829 (table)] (unpublished opinion). Following the court of appeals decision, Cole filed a petition for discretionary review in the Wisconsin Supreme Court. On September 20, 1982, the Wisconsin Supreme Court denied review.
One month later, in October of 1982, the Wisconsin Criminal Jury Instructions Committee revised its mayhem instruction in accordance with the Kirby decision.1 In January 1983, Cole filed his petition for writ of habeas corpus in the district court. Not surprisingly, in their briefs to the district court the parties reversed their earlier positions on the persuasiveness of the Instructions Committee’s determinations, Cole arguing that the revision of No. 1230 reflected the change in the law effected by Kirby and the state discounting the revision’s significance. The parties also briefed the constitutional questions involving the mayhem instruction. Significantly, the state did not argue that habeas review of Cole’s claims was barred by his failure to object at trial.
The district court, however, found that Cole’s failure to make a contemporaneous objection was dispositive. Noting that the Wisconsin Court of Appeals had mentioned Cole’s failure to object while citing cases and statutes on the state’s contemporaneous objection rule, the district court determined that the court of appeals had “implicitly” found waiver. Applying the “cause and prejudice” standard of Wainwright v. Sykes, 433 U.S. 72, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977), the court found that Cole could not establish cause since Kirby had been on the books for two years prior to Cole’s trial. Accordingly, the district court concluded that Cole was barred from asserting his constitutional claim in federal habeas corpus proceedings.
II. Waiver of the State’s Contemporaneous Objection Rule
Before reaching the merits, we must first consider whether habeas review is barred by Cole’s failure to raise a timely objection to the mayhem jury instruction. Ordinarily, this determination would depend on whether the Wisconsin Court of Appeals had relied on the state’s contemporaneous objection rule as an independent though not necessarily a sole ground of decision, see Goins v. Lane, 787 F.2d 248, 251 (7th Cir.), cert. denied, _ U.S. _, 107 S.Ct. 165, 93 L.Ed.2d 103 (1986), and whether Cole had established “cause and prejudice” for his procedural default. See Engle v. Isaac, 456 U.S. 107, 102 S.Ct. 1558, 71 L.Ed.2d 783 (1982); Wainwright v. Sykes, 433 U.S. 72, 97 S.Ct. 2497, 53 [416]*416L.Ed.2d 594 (1977). Indeed, the district court analyzed the problem in just this way.
This is not the ordinary case, however. Here, as in Barrera v. Young, 794 F.2d 1264 (7th Cir.1986), the Attorney General has waived any reliance on Wisconsin’s contemporaneous objection rule. During proceedings in the district court, the Attorney General simply ignored the issue; in this court, the Attorney General has gone further, explaining in his brief that “the state believes it appropriate for this court to consider the merits of Cole’s challenge to the instruction.” As we explained in Barrera, there is no reason why a state should not be able to waive its own forfeiture rule as readily through its executive branch as through its courts. The state is free to allocate responsibilities between the branches of its government in the best way it sees fit. Any other rule would subvert the principle of federalism Wainwright is designed to protect. Barrera, 794 F.2d at 1269. Of course, this approach also implies that the state may retract the Attorney General’s authority to waive reliance on the state’s forfeiture rule. Id. But if the state wants a federal court decision in a case that might otherwise be barred from habeas review under Wainwright, it can have one.
III. Elements of Mayhem Under Wisconsin Law
The only basis for granting federal habeas relief is a violation of federal statutory or constitutional law. Mosley v. Moran, 798 F.2d 182, 185 (7th Cir.1986). “Federal courts hold no supervisory authority over state judicial proceedings and may intervene only to correct wrongs of constitutional dimension.” Smith v. Phillips, 455 U.S. 209, 221, 102 S.Ct. 940, 948, 71 L.Ed.2d 78 (1982). The ultimate question before us, then, is not whether the mayhem instruction given at Cole’s trial was erroneous as a matter of state law, but whether it deprived Cole of any federally-protected right. Cole maintains that the Constitution protects him from being convicted upon an instruction that fails to inform the jury of an essential element of the offense charged. This is, of course, a federal law question, but it is based on a particular understanding of Wisconsin law. Before reaching the merits of Cole’s constitutional claim, therefore, we must determine whether his view of Wisconsin law is correct; that is, did Wisconsin law at the time of Cole’s offense require that a mayhem conviction be supported by proof of great bodily harm?
A. The Mayhem Statute
On its face, the Wisconsin mayhem statute says nothing about great bodily harm. Section 940.21 of the Wisconsin Statutes provides that “Whoever, with intent to disable or disfigure another, cuts or mutilates the tongue, eye, ear, nose, lip, limb or other bodily member of another, is guilty of a class B felony.” Our inquiry is not confined to the language of the statute, however. Under Wisconsin law, an appellate court’s construction of a statute becomes as much a part of the law as if the legislature had enacted it. Champlin v. State, 84 Wis.2d 621, 267 N.W.2d 295 (1978); State ex rel. Klinger & Schilling v. Baird, 56 Wis.2d 460, 202 N.W.2d 31 (1972). Moreover, an officially published opinion of the Wisconsin Court of Appeals has statewide precedential effect. Wis. Stats. § 752.41(2). These rules are binding on us as well, for “State courts are the ultimate expositors of their own states’ laws and federal courts entertaining petitions for writs of habeas corpus are bound by the construction placed on a state’s criminal statutes by the courts of that state except in extreme circumstances, none of which are present here.” Mendiola v. Estelle, 635 F.2d 487, 489 (5th Cir.1981).
Cole’s contention is that the great bodily harm element of mayhem derives from the Wisconsin Court of Appeals decision in Kirby v. State, 86 Wis.2d 292, 272 N.W.2d 113 (Ct.App.1978). To determine whether Cole is correct, we must examine the Kirby decision.
B. The Kirby Decision
To place Kirby in context, it should first be noted that Kirby is only the second [417]*417Wisconsin appellate opinion reported during the last century to consider the elements of the crime of mayhem. (The first was State v. Carli, 2 Wis.2d 429, 86 N.W.2d 434 (1957), cert. denied, 357 U.S. 907, 78 S.Ct. 1151, 2 L.Ed.2d 1157 (1958)). The reason for the paucity of case law, as the state explained at oral argument, is that mayhem has become something of an anachronism in Wisconsin’s criminal law, largely superseded by more “modem” crimes. See, e.g., Wis.Stats. § 940.19 (battery and aggravated battery); Wis.Stats. § 940.23 (injury by conduct regardless of life); Wis.Stats. § 940.24 (injury by negligent use of weapons); Wis.Stats. § 941.30 (endangering safety by conduct regardless of life). Thus, prosecutors rarely charge offenders with mayhem anymore. Nevertheless, cases still arise, perhaps because mayhem, unlike its modern counterparts which carry lesser penalties, is a class B felony carrying a sentence of up to twenty years in prison. Wis.Stats. § 939.50(3)(b).2
In Kirby, the defendant was charged with mayhem for participating in an incident in which a woman was tied to a bed and tortured for a five-hour period. At trial, the evidence showed that the victim had been beaten with curtain rods, an electrical cord, and a belt. Her assailants had thrown lighted cigarettes and matches on her. Kirby’s own acts “included pouring salt and shaving lotion on her back and legs and attempting to shave her head after her hair was cut by others.” 272 N.W.2d at 114. The victim suffered a fractured rib, bums, and scars on her legs in addition to psychological injuries requiring hospitalization.
At the close of the evidence, the trial court, finding this evidence insufficient to support a mayhem conviction, dismissed the charge. Instead, the trial court submitted to the jury charges of injury by conduct regardless of life under Wis.Stats. § 940.23 (hereinafter “injury”) and endangering safety by. conduct regardless of life under Wis.Stats. § 941.30 (hereinafter “endangering safety”). The jury convicted the defendant only on the endangering safety charge.
On appeal, Kirby contended that the trial court had erred in submitting the injury and endangering safety charges to the jury because these charges were not lesser included offenses of mayhem.3 In particular, Kirby maintained that injury required proof of great bodily harm and that such proof was not required for a mayhem conviction. The Wisconsin Court of Appeals disagreed. Belying on State v. Carli, supra, the court held that the “cuts or mutilates” element of mayhem necessarily includes the infliction of great bodily harm. The court reasoned as follows:
Although at common law mayhem required proof of mutilation or dismemberment that affected one’s combat ability, the statutory enactments creating the crime have not required such extensive mutilation or disfigurement. Nonetheless, “cuts or mutilates” as used in the statute requires proof of an act of greater severity than a mere nick with a knife. We believe that “cutting or mutilation,” a statutory element of mayhem, requires an injury that constitutes “great bodily harm” as interpreted in LaBarge [v. State, 74 Wis.2d 327, 246 N.W.2d 794 (1976)], and required as an element of injury by conduct regardless of life.
[418]*418272 N.W.2d at 117 (footnotes omitted). Because an injury conviction did not require proof of any fact in addition to those required for a mayhem conviction, the court concluded that injury was properly submitted to the jury. Moreover, since endangering safety was a lesser included offense of injury, it followed that endangering safety was also properly submitted. Id.
The next question was whether the evidence could be reasonably viewed as “support[ing] conviction of the lesser offense while leaving reasonable doubt as to the accused’s guilt of the charged offense.” Id. Reviewing the evidence, the court concluded that the jury could reasonably have determined that the state had not carried its burden on the mayhem and injury charges, but that it had carried its burden on the endangering safety charge. Accordingly, the court concluded that the submission of the lesser included offenses was proper and it affirmed the conviction. 272 N.W.2d at 117-18.
C. Kirby on Mayhem: Dicta or Binding Precedent?
The Attorney General argues that the Kirby court’s discussion of the elements of mayhem was dicta. If the Attorney General is correct, then we are not bound by this aspect of the Kirby decision, for Wisconsin follows the common law rule that dicta— statements of law going beyond the particular facts of the case — do not constitute binding precedent. See Beloit Corp. v. Department of Industry, Labor and Human Relations, 63 Wis.2d 23, 216 N.W.2d 233, 238 (1974); 1 Callaghan’s Wisconsin Pleading & Practice § 2.95 (1978). In the Attorney General’s view, the Kirby court’s finding that mayhem required proof of great bodily harm was unnecessary because Kirby was acquitted of injury, which was the only charge submitted to the jury that contained an element of great bodily harm.
Apparently, the Attorney General believes that the result of Kirby would not have changed even if Kirby had prevailed in his argument that the injury charge was erroneously submitted. However, every indication in the opinion and the law of Wisconsin at the time of the opinion is to the contrary. Had Kirby prevailed, his conviction for endangering safety would have had to be reversed.
Wisconsin law recognizes that the erroneous submission of a criminal charge can create an unacceptable risk of a compromise verdict. Even if one is acquitted of the erroneous charge, the error may result in a wrongful conviction on another charge. See, e.g., State v. Williford, 103 Wis.2d 98, 307 N.W.2d 277 (1981); Ross v. State, 61 Wis.2d 160, 211 N.W.2d 827 (1973). In Kirby, it was essential that the submission of the injury charge be found proper, for if it was not the endangering safety conviction could have represented a compromise. Faced with a choice between acquittal and conviction on the endangering safety charge alone, the jury might have chosen an acquittal.4 To determine whether injury was properly submitted, the court therefore had to decide whether a mayhem conviction required proof of great bodily harm.
Wisconsin law also seeks to minimize the risk of erroneous convictions through its rule that a lesser included offense can only be submitted if a reasonable view of the evidence supports both an acquittal on the charged offense and a conviction on the lesser offense.5 In the somewhat unusual [419]*419posture of the Kirby case, this meant that the court, in order to uphold the conviction, had to find that each of four potential outcomes were supported by a reasonable view of the evidence: (1) an acquittal for mayhem, (2) a conviction for endangering safety, (3) an acquittal for injury, and (4) a conviction for injury. (Because injury was both a lesser included offense of mayhem and a greater offense of endangering safety, the court had to find that either outcome, as to injury, would have been reasonable). For our purposes, the essential point is that the court, in reviewing Kirby’s endangering safety conviction, had to decide whether Kirby’s acquittal for mayhem was supported by a reasonable view of the evidence. This decision, in turn, required the court to consider the evidence in relation to the elements of mayhem, including great bodily harm. The court concluded, somewhat reluctantly but without equivocation, that the evidence could be reasonably viewed as failing to establish the elements of mayhem. 272 N.W.2d at 117.
To summarize, the Kirby court’s determination that great bodily harm is an essential element of mayhem was necessary to its analysis at two points. First; it was necessary to the finding that injury was a lesser included offense of mayhem and that it was, therefore, properly submitted to the jury. Second, it was necessary to the finding that Kirby’s acquittal for mayhem was supported by a reasonable view of the evidence. Each of these findings, in turn, formed an essential part of the court’s ultimate holding affirming Kirby’s conviction for endangering safety.
In short, Kirby’s holding that a mayhem conviction requires proof of great bodily harm was necessary to its decision and has full precedential effect under Wisconsin law. Accordingly, it is binding on us as well, for the Wisconsin courts, not we, are the ultimate expositors of Wisconsin law.
D. Was Kirby Wrongly Decided?
The Attorney General also maintains that the Kirby court misconstrued the Wisconsin Supreme Court’s decision in State v. Carli, supra. According to the Attorney General, Carli found that mayhem contained an element of great bodily harm on the facts of that case. Since Carli, however, the Wisconsin Supreme Court has rejected the “facts presented” test in favor of a “legal elements only” test for determining lesser included offenses. Randolph v. State, 83 Wis.2d 630, 266 N.W.2d 334 (1978). Thus, the Attorney General concludes that Kirby was wrongly decided.
This argument need not detain us long. It is not our place to determine whether Kirby was correctly decided. Our sole task is to ascertain the applicable Wisconsin law, and Kirby was the law in effect at the time of Cole’s offense. We note, however, that the Kirby court expressly disclaimed any reliance on the “facts presented” test, stating that it was “mindful of the admonition of the Wisconsin Supreme Court that we are only to be concerned with ‘the legal elements of the crimes, and not with the particular facts established in the case at hand.’ ” Kirby, 272 N.W.2d at 117. Moreover, the court did not rely solely on Carli, but independently reached the conclusion that proof of great bodily harm was required.6
E. Significance of the Instructions Committee’s Determinations
Our reading of Kirby finds support in the Wisconsin Criminal Jury Instructions [420]*420Committee’s 1982 decision to include great bodily harm as an element of mayhem. See supra n. 1 and accompanying text. In a footnote to the revised No. 1230, the Committee made clear that the change was necessitated by Kirby. Id. Why it took the Instructions Committee four years to catch up with Kirby is not evident; perhaps the sparsity of mayhem cases was a contributing factor. In any event, the date of the revision is not important. What counts is that the legal development that spurred the revision took place more than two years prior to Cole’s offense, in October 1978 when Kirby was decided.
Though the Committee’s determinations do not carry independent force of law, the Wisconsin courts have often found them to be persuasive evidence of what the law 'is. See, e.g., State v. Saternus, 127 Wis.2d 460, 381 N.W.2d 290 (1986). As the Wisconsin Supreme Court has stated, the pattern instructions “are the product of painstaking effort of an eminently qualified committee of trial judges, lawyers, and legal scholars, designed to accurately state the law and afford a means of uniformity of instructions throughout the state.” State v. Kanzelberger, 28 Wis.2d 652, 137 N.W.2d 419, 422-23 (1965). Indeed, in this very case, the Wisconsin Court of Appeals appeared to rely on the giving of the then-current pattern instruction as a ground for affirming Cole’s conviction. See State v. Cole, slip op. at 3-4. We conclude that a Wisconsin court would give weight to the Committee’s determinations, and therefore so do we.
IV. Interpreting State v. Cole
We have found that at the time of Cole’s offense Wisconsin law provided that proof of great bodily harm was needed to support a mayhem conviction. It remains to be seen what effect, if any, the court of appeals decision in Cole’s case has on the state of the law.
The Attorney General reads the State v. Cole opinion as repudiating Kirby and holding that great bodily harm is not an element of mayhem. Cole rejects this thesis as untenable. We agree with Cole for several reasons.
First, as mentioned previously, the State v. Cole opinion contains no discussion of Kirby nor even a citation to it. Neither does the opinion so much as mention the phrase “great bodily harm.” Although the court did note that “The trial court gave the pattern instruction, which includes the essential elements of the crime,” slip op. at 3-4, we cannot read this isolated and conclusory assertion as overruling Kirby. Not only is the assertion based on a mistaken presumption of the correctness of the pattern instruction but, read in context, it does not appear to be directed at the Kirby great bodily harm question at all. (The remainder of the paragraph in which it appears addresses an entirely separate instructions issue, not raised before this court, concerning the element of intent). We decline to assume that the Wisconsin Court of Appeals would overrule one of its precedents in so casual and offhand a manner, much less sub silentio.
Second, Kirby was a published opinion entitled to statewide precedential effect, Wis.Stats. § 752-41(2), whereas State v. Cole was an unpublished opinion having no precedential value. Wis.Stats. § 809.23(3). Wisconsin lawyers are admonished under pain of possible sanctions not even to cite unpublished opinions. See Tamminen v. Aetna Cas. & Surety Co., 109 Wis.2d 536, 327 N.W.2d 55 (1982). Given the lowly status of unpublished opinions under Wisconsin law, it is inconceivable that State v. Cole was intended to overrule anything. See Wis.Stats. § 809.23(1)(a) (“criteria for publication in the official reports ... include whether the opinion ... [ejnunciates a new rule of law or modifies, clarifies or critiques an existing rule.”).
A third reason for rejecting the Attorney General’s expansive interpretation of State v. Cole is that, so read, the decision raises serious due process concerns. In Bouie v. City of Columbia, 378 U.S. 347, 84 S.Ct. 1697, 12 L.Ed.2d 894 (1964), the Supreme Court reversed several convictions that rested on an unexpected construction of South Carolina’s criminal trespass statute [421]*421by the state supreme court. Observing that “an unforeseeable judicial enlargement of a criminal statute, applied retroactively, operates precisely like an ex post facto law,” id. at 353, 84 S.Ct. at 1702, the Court held that a state may not, through judicial interpretation, alter the elements of a crime so as to deny the accused fair warning of the acts prohibited. Id. at 353-54, 84 S.Ct. at 1702-03; see also Douglas v. Buder, 412 U.S. 430, 93 S.Ct. 2199, 37 L.Ed.2d 52 (1973); Rabe v. Washington, 405 U.S. 313, 92 S.Ct. 993, 31 L.Ed.2d 258 (1972); United States ex rel. Reed v. Lane, 759 F.2d 618 (7th Cir.1985), cert. denied, _ U.S. _, _, 106 S.Ct. 1268, 1282, 89 L.Ed.2d 577, 589 (1986).
The Court explored some of the implications of Bouie in Marks v. United States, 430 U.S. 188, 97 S.Ct. 990, 51 L.Ed.2d 260 (1977), a case decided under the fifth amendment’s due process clause. Marks held that the test for obscenity announced in Miller v. California, 413 U.S. 15, 93 S.Ct. 2607, 37 L.Ed.2d 419 (1973), could not be applied retroactively to persons indicted for conduct occurring under the regime of Memoirs v. Massachusetts, 383 U.S. 413, 86 S.Ct. 975, 16 L.Ed.2d 1 (1966), previously the leading case on what constituted obscenity. Despite the fact that Miller, not Memoirs, announced the “correct” first amendment test, Miller’s expansion of the accused’s potential criminal liability precluded its retroactive application. 430 U.S. at 196, 97 S.Ct. at 995.
Marks makes two points pertinent to this case: first, a decision overruling a prior interpretation of a criminal statute is (or at least is ordinarily) “unforeseeable” under Bouie; and second, the fact that a judicial construction restores the correct understanding of the law is of no consequence in determining whether its retroactive application violates due process.
In light of these principles, it is clear that the State v. Cole court was not free to overrule Kirby retroactively and apply a newly enlarged definition of mayhem to Cole’s case. Even if the court had rejected Kirby’s holding that great bodily harm is an element of mayhem, the principle of fair warning would have required that the decision not be given retroactive effect. Retroactivity would have been permissible only if the repudiation of Kirby was somehow “foreseeable,” which it almost certainly was not. Given the ample indications that State v. Cole was not intended to overrule Kirby, and the considerable due process problems raised by such an interpretation, we conclude that State v. Cole did not overrule Kirby.
State v. Cole can only be read as expressing no view on the viability of Kirby. The Attorney General of Wisconsin must have so read Cole when he contended in his brief in a subsequent case, State v. Webie, that great bodily harm was and is an essential element of mayhem under Wisconsin law. See supra n. 6. A Wisconsin court would not find meaning in the court of appeals’ silence in Cole, nor should we. We must, therefore, reject the Attorney General’s and the dissent’s effort to interpret the brief, unpublished Cole opinion as holding that a mayhem conviction does not require proof of great bodily harm. The decisions in Kirby and Webie together with the revised Wisconsin pattern instruction, promulgated three months after the cryptic opinion in Cole, all make clear that great bodily harm remains an essential element of mayhem under Wisconsin law.
Y. Subsequent Developments in Wisconsin Law
In a case decided during the pendency of this appeal, the Wisconsin Court of Appeals expressly declined to reconsider Kirby’s holding on great bodily harm. State v. Webie, (Wis.Ct.App.1987) [_ Wis.2d _, 405 N.W.2d 83 (Table)]. At the same time, the court overruled other aspects of the Kirby decision. Id. at 11. Recognizing that our ultimate concern is with Wisconsin law as it stood at the time of Cole’s offense, not with any subsequent changes in the law, we will examine the Webie opinion solely for the purpose of determining whether it confirms or casts doubt on our interpretation of Kirby.
[422]*422Factually, Webie is nearly indistinguishable from Kirby. In both cases, the defendant was charged with mayhem, the trial court instructed the jury on injury and endangering safety as lesser included offenses of mayhem, and the defendant was acquitted of mayhem and injury but convicted of endangering safety. In Webie, as in Kirby, the court was required to find the essential elements of these three offenses to determine whether injury or endangering safety were in fact lesser included offenses of mayhem.
The Webie court began its analysis by refusing to reexamine Kirby’s “addition of the ‘great bodily harm’ requirement to the ‘cutting or mutilation’ element of mayhem.” Slip op. at 7. Rather, the court assumed that the mayhem statute “continues to incorporate the unexpressed great bodily harm requirement.” Id. at 8. Nevertheless, the court concluded that injury and endangering safety are not lesser included offenses of mayhem. Both injury and endangering safety require proof of conduct that is dangerous to life and may cause death, the court found; great bodily harm, by contrast, can occur without endangering the victim’s life. The court therefore rejected Kirby’s “assumption that under all circumstances great bodily harm equals or includes conduct regardless of life.” Id. at 7. Accordingly, the court overruled Kirby’s holding that injury and endangering safety are lesser included offenses of mayhem and reversed the defendant’s conviction. Id. at 11.
Webie simply confirms our reading of Kirby. It makes clear that Kirby’s statements concerning the elements of mayhem are not dicta, but part of the holding of the case. While Webie overrules the lesser included offense part of the Kirby holding, it leaves the great bodily harm requirement — which is the only part of the Kirby holding relevant here — intact. Even if the Wisconsin courts or legislature were to repudiate Kirby’s holding on great bodily harm at some future date, no such change in the law could be applied retroactively to Cole, for reasons we have already explained. For the definitive statement of Wisconsin law pertinent to Cole’s challenge, therefore, we must still look to Kirby.7
[423]*423VI. Instructional Error as a Constitutional Violation
We have found that Cole was convicted of mayhem without any jury instruction being given on great bodily harm, which is an essential element of mayhem under Wisconsin law. Cole contends that a conviction under these circumstances violates the fourteenth amendment’s due process clause. To prevail on this claim, Cole must carry a heavy burden. Instructional error will not support a petition for federal habeas relief unless it is shown “not merely that the instruction is undesirable, erroneous, or even ‘universally condemned,’ ” Cupp v. Naughten, 414 U.S. 141, 146, 94 S.Ct. 396, 400, 38 L.Ed.2d 368 (1973), but that “the ailing instruction by itself so infected the entire trial that the resulting conviction violates due process.” Id. at 147, 94 S.Ct. at 400; Henderson v. Kibbe, 431 U.S. 145, 154, 97 S.Ct. 1730, 1736, 52 L.Ed.2d 203 (1977). We hold that the complete failure to give any jury instruction on an essential element of the offense charged, under circumstances indicating that the jury was not otherwise informed of the necessity of proof of the element, is a violation of due process.
A. Failure to Instruct on an Essential Element
State and federal courts alike have long recognized that the. failure to give any instruction on an essential element of a criminal offense is fundamental error, requiring reversal of the defendant’s conviction. See, e.g., United States v. Howard, 506 F.2d 1131 (2d Cir.1974); Byrd v. United States, 342 F.2d 939 (D.C.Cir.1965); United States v. Greichunos, 572 F.Supp. 220 (N.D.Ill.1983); C. Wright, Federal Practice and Procedure Crim.2d § 487 (1982) (collecting federal cases); 75 Am.Jur.2d Trial §§ 710-18 (1974) (collecting state cases). Of the many cases standing for this principle however, only a few have rested on a federal constitutional ground of decision. See, e.g., United States v. Voss, 787 F.2d 393 (8th Cir.), cert. denied, _ U.S. _, 107 S.Ct. 286, 93 L.Ed.2d 261 (1986); Ba[424]*424tiste v. Blackburn, 786 F.2d 704 (5th Cir.1986); Potts v. Zant, 734 F.2d 526 (11th Cir.1984), cert. granted and judgment vacated on other grounds, _ U.S. _, 106 S.Ct. 3328, 92 L.Ed.2d 734 (1986); Glenn v. Dallman, 686 F.2d 418 (6th Cir.1982); Mills v. Shepherd, 445 F.Supp. 1231 (W.D.N.C.1978), aff'd mem., 605 F.2d 1203 (4th Cir.1979). Nevertheless, “the nearly universal acceptance of the rule in both state and federal courts establishes the value to the defendant of this procedural safeguard.” Beck v. Alabama, 447 U.S. 625, 637, 100 S.Ct. 2382, 2389, 65 L.Ed.2d 392 (1980) (discussing defendant’s right to receive lesser included offense instruction).
A Sixth Circuit case, Glenn v. Dallman, 686 F.2d 418 (6th Cir.1982), clearly holds that the rule is constitutionally based. In Glenn, the state trial court’s jury instructions completely omitted one of the elements of the offense of aggravated burglary. As here, the disputed element was the product of a state appellate court’s construction of the criminal statute. After the petitioner lost in the state courts, his case came to the Sixth Circuit via habeas corpus. The court of appeals, finding that constitutional error had occurred, granted the writ. “Where a jury sits as the finder of fact in a criminal trial,” the court reasoned, “the court’s instructions to the jury concerning the necessary elements of the crime charged are the only means of assuring that the State is put to its burden of establishing every element of the crime.” Id. at 421. As such, the complete failure to instruct on an element of aggravated burglary deprived the defendant of due process and his right to a jury trial. Id. The court further held that the error was not harmless because it was not clear that, if properly instructed, a rational juror would have had to return a guilty verdict. Id. at 422.
We agree with the Glenn court’s analysis. Once a state deems a fact essential to the commission of an offense, as the Kirby court did with respect to great bodily harm, the state must provide fair procedures for holding the prosecution to its burden. See Rose v. Clark, _ U.S. _, 106 S.Ct. 3101, 3114, 92 L.Ed.2d 460 (1986) (Blackmun, J., dissenting) (“The Framers chose to protect defendants, not primarily by regulating the substance of the criminal law, but by establishing certain trial procedures to be followed in a criminal case.”). At a minimum this means informing the jury of each of the required elements of the government’s proof. Without an instruction that performs this minimal task, the defendant’s right to a jury determination of his guilt or innocence — a right protected by the fourteenth amendment’s due process clause, Duncan v. Louisiana, 391 U.S. 145, 88 S.Ct. 1444, 20 L.Ed.2d 491 (1968)—is little more than a matter of constitutional theory.
B. Supreme Court Cases
Although the Supreme Court has never been squarely faced with the question presented in Glenn, its precedents strongly support the Glenn result. Indeed, every federal court to consider the question since the Court decided In Re Winship, 397 U.S. 358, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970), has agreed that a conviction procured without any jury instruction on an essential element of the offense is constitutionally invalid.8
[425]*425Winship held that the due process clause protects an accused against conviction “except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime charged.” Id. at 364, 90 S.Ct. at 1073. In several key cases following Win-ship, the Court has made clear that due process is violated when jury instructions given at a criminal trial have the effect of easing the prosecution’s burden of persuasion. We believe that the instructions given at Cole’s trial had precisely this effect. Worse yet, the instructions had the effect of directing a verdict for the prosecution on an element of the offense, a result the Constitution absolutely condemns.
Sandstrom v. Montana, 442 U.S. 510, 99 S.Ct. 2450, 61 L.Ed.2d 39 (1979), is particularly instructive in this regard. Sandstrom held that in a case in which intent was an element of the crime charged, a jury instruction stating that “the law presumes that a person intends the ordinary consequences of his voluntary acts” was unconstitutional. 442 U.S. at 524, 99 S.Ct. at 2459. Because the jury could have interpreted the instruction as establishing a conclusive presumption on one element of the crime, the instruction conflicted with the presumption of innocence and invaded the fact-finding province of the jury. Id. at 523, 99 S.Ct. at 2458. Alternatively, the Court found, because the jury could have interpreted the instruction as shifting to the defendant the burden of persuasion on the question of intent, the instruction violated the corollary to Winship developed in Mullaney v. Wilbur, 421 U.S. 684, 95 S.Ct. 1881, 44 L.Ed.2d 508 (1975); that is, that a state may not shift the burden of persuasion on an element of an offense to the accused by presuming that element upon proof of other elements. 442 U.S. at 524, 99 S.Ct. at 2459. The Court recognized that some jurors might have interpreted the instruction as describing no more than a permissive inference or a rebuttable presumption, id. at 519, 99 S.Ct. at 2456, either of which would have been constitutionally unobjectionable; nevertheless, the possibility that a reasonable juror could have given the presumption either conclusive or burden-shifting effect was enough to invalidate the defendant’s conviction. Id. at 524, 99 S.Ct. at 2459. See also Francis v. Franklin, 471 U.S. 307, 105 S.Ct. 1965, 85 L.Ed.2d 344 (1985) (applying essentially similar analysis); Connecticut v. Johnson, 460 U.S. 73, 103 S.Ct. 969, 74 L.Ed.2d 823 (1983) (plurality opinion) (same).
Clearly, if a Sandstrom -type instruction is invalid because it may be interpreted as describing either a conclusive or a burden-shifting presumption on an element of the offense, an instruction that completely omits an element of the offense must also be invalid. In the case of a conclusive presumption, a jury may at least ignore the instruction or rest its verdict on trial evidence rather than the presumption. But when the jury is never told that the element forms a necessary part of the crime, the matter is taken out of its hands entirely. See Rose v. Clark, _ U.S. _, 106 S.Ct. 3103, 3107 & n. 8, 92 L.Ed.2d 460 (1986). The result is exactly the same as if the trial court had directed a verdict on part of the offense — and directed verdicts are of course impermissible in criminal cases. Id. 106 S.Ct. at 3106; United States v. Martin Linen Supply Co., 430 U.S. 564, 572-73, 97 S.Ct. 1349, 1355-56, 51 L.Ed.2d 642 (1977); Carpenters v. United States, 330 U.S. 395, 408-09, 67 S.Ct. 775, 782-83, 91 L.Ed. 973 (1947). Similarly, a burden-shifting instruction at least allows the defendant to prevail if he meets the particular burden; when no instruction is given, all the defendant’s evidence on the issue is rendered irrelevant. Cf. Cool v. United States, 409 U.S. 100, 93 S.Ct. 354, 34 L.Ed.2d 335 (1972). Again, the result is the same as a directed verdict.
Compared to Sandstrom, this is an easy case. The Sandstrom instruction was ambiguous; recognizing the possibility that the jurors gave the instruction a permissible interpretation, the Court nevertheless struck down the conviction because of the risk that they did not. This case, by contrast, calls for no speculation as to the presence of jury confusion. Here the complete omission of any instruction on great bodily harm guaranteed that the jury did not find that the government had carried [426]*426its burden. If Winship means anything, it means that a conviction such as Cole’s cannot stand.
Henderson v. Kibbe, 431 U.S. 145, 97 S.Ct. 1730, 52 L.Ed.2d 203 (1977), which the dissent relies on, actually supports our conclusion. In Henderson, the petitioner challenged the trial court’s failure to give an instruction explaining the element of causation in New York’s murder statute. The court read the statute and the indictment, each of which referred explicitly to causation, to the jury, and both counsel stressed the causation issue in their arguments. Id. at 153, 97 S.Ct. at 1736. On these facts, the Court concluded that no Winship violation was shown because it was clear that the jury was aware of the causation requirement and had made a finding of causation. Id. at 153-54, 97 S.Ct. at 1736. The clear implication of Henderson’s analysis was that constitutional error would have occurred if the jury did not have any reason to be aware of the causation requirement.
In contrast to Henderson, this is not a case in which the jury could have surmised that some element of the offense left undefined in the instructions had to be proven beyond a reasonable doubt. Henderson was a defective instruction case like Sandstrom; this is a no instruction case. Neither court nor counsel at Cole’s trial ever so much as mentioned the great bodily harm requirement. Indeed, no one present in the courtroom seems to have been aware of it. Nothing else in the instructions or arguments cured the defect. Consequently, the jury had no way of knowing that the victim’s injuries had to reach a certain level of severity before Cole could be convicted of mayhem. As we explain in the section that follows, these facts raise a grave risk that Cole’s mayhem conviction was factually as well as legally erroneous.9
[427]*427C. Harmless Error
Like the Glenn court, we need not decide whether the complete failure to instruct on a necessary element of the state’s proof can ever be harmless error. 686 F.2d at 421 n. 2; cf. Rose v. Clark, 106 S.Ct. at 3108-09) (Sandstrom violation can be harmless error); Jackson v. Virginia, 443 U.S. 307, 320 n. 14, 99 S.Ct. 2781, 2790 n. 14, 61 L.Ed.2d 560 (1979) (failure to instruct on beyond a reasonable doubt standard cannot be harmless error). It is enough on the facts of this case to hold that the omission of a great bodily harm instruction may have contributed to the verdict and that Cole’s mayhem conviction therefore must be reversed.
Section 939.22(14) of the Wisconsin Statutes defines great bodily harm as “bodily injury which creates a high probability of death, or which causes serious permanent disfigurement, or which causes a permanent or protracted loss or impairment of the function of any bodily member or organ or other serious bodily injury.” The Wisconsin courts take the “seriousness” requirement seriously. In Flores v. State, 76 Wis.2d 50, 250 N.W.2d 720 (1977), the defendant was charged with aggravated battery. The victim testified that he had lost two teeth, received 30 stitches to close a cut, was unconscious for more than an hour, was in intensive care for two and one-half days, was in the hospital for nine days, and continued to experience pain in his ankle. 250 N.W.2d at 723. Nevertheless, the Wisconsin Supreme Court found that the trial court erred in finding great bodily harm as a matter of law and refusing to submit a lesser included offense to the jury. Id. at 724-25.
A reasonable jury instructed on this body of law could have acquitted Cole of mayhem. Cole’s victim suffered three cuts requiring eight stitches. She spent a few hours in the emergency room where she received a shot. She now has two scars and occasionally feels pain in her hand when driving. These injuries are no doubt very real to Ms. Johnson and we in no way make light of them when we suggest that they may not constitute great bodily harm. As the Instructions Committee recognized when it revised its mayhem instruction, great bodily harm means serious, often life-threatening, bodily injury. See State v. Webie, slip op. at 9-10. A jury could have found that Ms. Johnson’s injuries did not rise to this level.
Rather than compelling a guilty verdict, the evidence of injury in this case might be insufficient as a matter of law to establish great bodily harm. See Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). We need not decide this question, however; since the constitutional error was not harmless, it makes no difference whether the evidence was sufficient to support a guilty verdict or not. Either way, we must reverse. See Voss, 787 F.2d at 398, Glenn, 686 F.2d at 421.10
VII. Conclusion
“Under our system of criminal justice even a thief is entitled to complain that he has been unconstitutionally convicted and imprisoned as a burglar.” Jackson, 443 [428]*428U.S. at 323-24, 99 S.Ct. at 2791. Stevie Cole remains validly convicted of two crimes arising out of his conduct on the morning of December 20, 1980. However, his mayhem conviction, procured without any instruction on a fact the state has deemed essential to the commission of the crime, cannot stand. The judgment of the district court is reversed and Cole’s petition for a writ of habeas corpus is granted. Execution of the writ is stayed on condition that the State of Wisconsin grant Cole a new trial within a reasonable time not to exceed ninety days.