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Issue 11

Modern Science v. Law: Revisiting the case of Kathleen Folbigg, Australia’s Worst Serial Killer

By Debojeet Chakravarty

When new evidence surfaces, a case changes. The case of Kathleen Folbigg is a perfect example. However, the idea of justice is put to test when a legal system overlooks medical evidence to avoid the off-chance that it may have to retract from its previous judgment.

In May 2003, Kathleen Folbigg, a resident of New South Wales, Australia, was convicted for killing three of her children and manslaughter of the first-born, between 1989-99. Fifteen years later, in 2018, a team of geneticists filed for a plea to release Folbigg, who was sentenced to 30-years. Though the district court upheld its 2003 decision, the supportive batch of scientists have relied on the latest findings that show rare genetic mutations might have been the cause of the children’s deaths. While the advocates of modern science are adamant on their medical evidence, which was absent at the time of conviction, the Australian courts of law are unwilling to budge. 

The case: Of the four victims, Caleb was the first. He was born in February 1989 and succumbed to death 19 days later. The cause of death was determined to be Sudden Infant Death Syndrome (SIDS), commonly known as cot or crib death. Following this, Patrick and Sarah, aged nine months and ten months old, met the same fate. The boy passed away in 1991 after an epilepsy-induced choke, while Sarah’s death in 1993 was attributed to SIDS. The last baby, Laura, arrived four years later in 1997, but unfortunately, she could only live for eighteen months and passed away in February 1999. Her cause of death was never ascertained. As the matter stood, there was no concrete evidence to show how the babies really died, until Kathleen’s husband Craig Folbigg discovered her personal diary.  

During the investigation, Kathleen was asked to read out from her diary. One from January 1997, during her pregnancy with Laura, reads: – “This time I am going to call for help, this time I’ll not attempt to do everything myself any more. I know that that was my main reason for all my stress before and stress made me do terrible things…” In another entry, complaining and convincing herself of being a more capable mother for Laura than she was for Sarah, she wrote – “With Sarah, all I wanted was her to shut up. And one day she did.” Chilling sentences like these led to the prosecution presenting Kathleen’s diary as evidence in court, which eventually incriminated her. 

Nonetheless, Kathleen never confessed to killing her children and claimed they died of natural causes. Her life-long friend Tracy Chapman has always argued that the phrases in the diary were put out of context at the trial and even though she was shocked to read them initially, things started to make sense afterwards, considering Kathleen’s frustrations as a depressed, helpless mother, who had lost her children repeatedly in short spans.

Kathleen’s lawyers were relentless and the case went on. In 2013, Professor Stephen Cordner, a pathologist at the Victorian Institute of Forensic Medicine, examined the medical evidence presented at the trial and concluded that there was ‘no positive pathology support for the contention that any or all of these children have been killed’. As more medical experts around the same time reviewed and opined on the report, doors opened for Kathleen’s lawyers to lodge a petition for a judicial review in the case with the New South Wales Governor in 2015. 

Three years went by, and nothing came off the petition. In the meantime, Kathleen had broken her silence. She denied  all the variant interpretations of her diary entries and explained  how she coped with the pangs of a troubling motherhood and blamed herself for the fates of her children. Her claims however did not yield anything. 

When the Australian Story conversed with Nicholas Cowdery, the NSW Director of Public Prosecutions at the time, they found him convinced of the jury’s decision at Folbigg’s trial. So the authorities looked satisfied with the jury’s conviction and hardly interested in reopening the case. Nevertheless, the medical flank persevered. 

In 2018, a more compelling breakthrough in the medical evidence set the ball rolling. On receiving consent, a team of geneticists led by Carola Vinuesa, an immunologist from the Australian National University, conducted Kathleen’s genome sequencing. They found a rare genetic mutation called CALM2, which could lead to heart arrhythmias causing cardiac arrest and sudden death in children and infants. Using blood and tissue samples from the children, the geneticists discovered that the Folbigg daughters – Sarah and Laura, both shared the same mutation as their mother. This revelation became a potential case turner and the NSW authorities set up a judicial review inquiry into the Folbigg case. 

Faces turned grim when former District Court Chief Judge Reginald Blanch QC upheld her conviction stating – “(the evidence) does not cause me to have any reasonable doubt as to the guilt of Kathleen Megan Folbigg for the offences of which she was convicted”. Adding to that he said, “Her own explanations and behaviour in respect of her diaries, makes her guilt of these offences even more certain,” This is where the battle between the legal system of Australia and the leading medical experts of the country began. Upset that their peer-reviewed scientific evidence was overcome by the long-standing circumstantial evidence lying in the vague diary entries, modern scientists, including a world-renowned expert in CALM mutations, banded together and came forward to get their evidence the legal consideration it deserves. 

A paper titled“Infanticide vs. inherited cardiac arrhythmias”, was published in an international peer-reviewed journal EP Europace. It sheds light on the deaths of Folbigg’s children, including the boys who were found with a variation of the BSN gene, which is associated with lethal epileptic fits. After the concrete medical evidence was out in the public domain, the medical wing, with an expanded network of medical professionals, took a step further to attain justice for Kathleen Folbigg and recognition of their scientific evidence. In March 2021, a pardon petition based on the Europace paper was signed by ninety eminent scientists, which included Nobel Laureates Peter Dorothy and Elizabeth Blackburn, former Australian of the Year Fiona Stanley, President of Australia Academy of Science John Shine, and sent to the current Governor of New South Wales. 

While the decision is awaited, a strong statement from the Australian Academy of Science regarding the incorrect conclusions found by the Commissioner in the 2019 inquiry, shows how the medical community has risen to prove the worth of reasoning-based scientific evidence over circumstantial, subjective evidence. Actions of these prominent scientists were encapsulated in Professor Vinuesa’s straightforward words to the New York Times – We would feel exhilarated for Kathleen if she is pardoned,” Adding, “It would send a very strong message that science needs to be taken seriously by the legal system.”

 This incident illustrates how institutions, made up of eligible and masterful human resources, sometimes fail to reconcile on issues of utter importance. And leads to various pertinent questions –   is it a matter of integrity that blocks such paramount bodies like the Australian legal system to reconsider its original position and give way to a more logical, rather scientific solution? Does a superseding argument over one’s own amount to defeat even when a person’s life clings on it? Can ambiguity ever  be completely staved off using third party inferences? Does a mother really have child-killing instincts? Is it that bad to pen a personal diary?

Picture Credits: The Times (UK)

Author’s Bio: Debojeet Chakravarty is an undergraduate student of Commerce at Doon Business School. His interests and moods vary greatly – from tattling tales of true crime, to contemplating over half-learned Indian philosophies to advocating for humor in every aspect of life. Also, he is dangerously serious about sleeping.

We publish all articles under a Creative Commons Attribution-Noderivatives license. This means any news organisation, blog, website, newspaper or newsletter can republish our pieces for free, provided they attribute the original source (OpenAxis).

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