Issue 11

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

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).

Issue 6

MSP: What has it Meant Historically and What does it Mean Now?

We must keep in mind three  things – 1) price systems are symptoms, not solutions 2) all group interests have sub group interests, which further disintegrate to individual interests and  3) agricultural political economy is shaped by history. So when someone calls farmers protesting  “khalistani”, not only is that horrible behaviour but also a disservice to the nation & detrimental for national interest.

Recently, the parliament passed three bills that were hailed to be both anti farm and farm liberating. This led to widespread protests throughout the country, more so in north india. The main summary is – farmers can sell their produce outside the government controlled mandis, they can get into contracts with agents as they prefer. When and  how depends on  their judgement & capacity.

During the 1960’s owing to war, and political instability, India suffered a food shortage which made the idea of “High Yield Variety” seeds attractive in order to ramp up agriculture. The MSP, or Minimum Support Price was hence brought in, to a) Incentivise  crops like wheat, rice & b) to create a sense of agricultural stability. 

In 1965 an Agricultural Price Commission (renamed as CACP now) was set up to estimate and advise the price policy. It is a price floor, under which the government ensures all the listed crops. Since it is a five decade old policy, scrutiny is natural. Normally there are around two  dozen crops under it. It was after all, , a temporary reform to boost production..

The APMC or Agricultural Produce Market Committee formed by the government . has two major roles – tackling exploitation coupled with  fixing power asymmetry between farmers & bigger agents and reducing farm to retail prices. By dividing states into geographical spots it runs mandis where there are charges and licenses for participation. Now many mandis have been brought to online mode of operation like e-mandis through digital means & token systems. All MSP procurement is not through APMC either. There are other ways like through the arhatiya (agents) who are generally powerful figures.

The next major economic reforms came in 1990, needless to say, bypassed the farm.

Our focus is primarily on the MSP. Is it a right? Is it a solution? In my opinion, it is not. Price assurance isn’t belling the cat, it is rather negotiating with the cat at the expense of another cat, with heavy consequences. Prices are indicators of the market, they are a product of people’s preferences. They cannot arise out of legislation. The birth of MSP took place to boost certain crops. Today it leads to overproduction (and wastage) of these crops at the expense of the taxpayer. Another important concern is the diversion of resources. Since MSP makes these crops attractive it leads to diversion of resources that could be used for growing other suitable crops (only where MSP is accessible). 

At best, the MSP is a symptom of inefficiency and need of a safety net, not a solution to it. It distorts the market in the promise of safe outcomes. The FCI currently stocks more than twice the buffer stock requirement (97mt in 2020 vs 41 mt req.). This is not just overproduction but dead capital. Other concerns are the inequality in the policy itself. A small number of farmers concentrated in a few states are beneficiaries of the scheme e.g. Punjab, Haryana, MP vs Odisha. Therefore farmers do not benefit equally from it. In fact there are large inequalities which are reflected in the outcomes. Smaller farmers in states like Odisha (which in fact produces 1/10th of rice) depend on public welfare, not  price insurance.  There are also information barriers as not many small farmers are even aware about the MSP, let alone derive their income from it. It is quite possible that this policy makes rich farmers richer and poor ones poorer. An average farming household in Punjab enjoys 1.2 lac per annum in subsidy, 2.5 times of national avg. More importantly, by definition, the government . cannot “predict” prices, it will most certainly predict it wrong. 

APMC’s hurt both the freedom of selling and the freedom of movement as per one’s wish. There is excessive cartelization and barriers to entry and trade. In that sense there’s fundamentally nothing revolutionary about these bills as the government claims while they may be more freedom enabling. They do little to address the broken system. The fear or misconception that the private sector will consume the farmers is not exactly true. Firstly it is a fact that agriculture, which is heavily state regulated is ironically one of the largest private sectors in the country. It runs on trust, contracts, promises and so on, much of which are informal. Mark that only about 6-7 percent of total farmers have access to MSP. More than 90 percent are doing trade in their personal capacities voluntarily in local markets, through agents and supply chains which are private sector transactions. If the government starts buying all the production of all MSP crops, it will go broke. Moreover the govt claims the MSP isn’t going anywhere. Neither are the mandis. Though if people find better opportunities by this increase in freedom, they will become obsolete. The bigger question is how many farmers have the resources to deal directly?  The blame towards the “middlemen” is unwarranted as they play a crucial role in any supply chain.

Another misconception is that farmers are driven by other politics and belong to certain states. Such claims aren’t well founded either. The reason is simple. Even though the protests are widespread, Punjab & Haryana have  been at the forefront of agro movements, historically. They were the biggest beneficiaries of the Green Revolution and they’re biggest beneficiaries of MSP and mandi systems. Wheat & Rice contribute to huge parts of agri-revenue. They have bigger and more connected unions unlike say Odisha. Punjab has avg land holdings of 3.7 hectares vs national avg of 1.08 hectares. Involvement in states such as Bihar (avg 0.4 hectares holding) isn’t very wide spread as they have already abolished APMC

The point is whether they’re aware about how good/bad the alternatives (which haven’t been tested) are or they realise the trade-offs which may come at the expense of someone else. With these bills some speculations are obvious. What about the price support? What about volatility without it? Are there not going to be any mandis anymore? It is only natural that we dissent. With these bills that will supposedly “liberalise” agriculture, some sections might suffer losses too and then move from farming to manufacturing or other productive sectors as most developed nations do. But are there enough opportunities ? How smooth is this transition? Will this lead to alienation of traditional occupation? What about power asymmetry, negotiation and information barriers? These are genuine questions and the government response to them have been lacklustre and opaque. The problem of agriculture is two fold – productivity and accessibility. The removal  of APMCs in themselves does little to solve either. However it is worth pointing out that most parties protesting or disapproving of the bills demanded similar reforms. Some even included them in their manifestos.

Almost all countries protect their primary sector and so should India. But not through price supports where there is overproduction. Incentives to increase productivity and shift to other beneficial crops, transition to farm entrepreneurship etc.The alternative should be to have a more universal, decentralised and direct support e.g. an income support. A Universal Basic Income could be on the cards but it is still a long long time away. Some policies that have delivered results the Rythu Bandhu scheme or the Kalia scheme by the Odisha govt. Welfare is a tricky, slippery slope and old policies must be tested and retested before they get politicised. Farm prosperity must be the priority, even if it comes at the cost of knee jerk decisions. The image of a poor farmer representing the country seems patronising and representative at the same time. But it must go.

Amlan is a final year student at Ashoka University who hails from Odisha.

Image credit:

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Humans v. AI: How automated decision making is a game changer for legal liability

The Trolley Problem, like many thought experiments, has a pervasive shelf life. There is little to add to its 50-year-old documented history in and outside classrooms—except to add a footnote about its strange popularity in autonomous vehicle circles. This is evidenced by its crowdsourced avatar dubbed ‘Moral Machine’, that has been an inspiration to computer scientists and engineers within the Silicon Valley counter culture. 

Fiercely debated and disavowed by philosophers, ethicists and behavioural psychologists, it seems, we begin exactly where the trolley problem ends—the complexity of the real-time decision making and messy morality in the aftermath of the loss of a human life. The trolley problem isn’t theoretical anymore and neither are the algorithms that sought to adapt it to the digital age.

Our case in point—In 2018, Silicon Valley awoke to an autonomous Uber killing a 49-year-old pedestrian in Tempe, Arizona. As one reporter succinctly summarised—what happens when a two-ton machine, one that is run by an assortment of sensors and computers and makes decisions foreign to human reasoning, comes in contact with the all too human textures of urban life?

A growing demand for and interest in scholarship, at the intersection of law and technology, identifies the immediate and real puzzles for legal systems, the state and tech corporations. The levers pulled by these three key actors will lay much of the groundwork and have the battle lines drawn.

The State and Digital Governance 

A public-private partnership paradigm forms much of the situational context of the testing and adoption of autonomous vehicles in cars and other cyber-physical systems. When we consider the question of state responsibility or even liability in the aftermath of crashes in testing zones or general roll out areas, this partnership between the state and tech corporations is increasingly transforming governance and producing new modes of surveillance. The question, as Jack Balkin put, is not if there will be a Surveillance State, but who is better suited to lead the Surveillance State? Big Tech is certainly an unprecedented contender. 

New forms of governance are emerging in a transnational zone of ‘legal indistinction’, an operational space bound by legal systems specific to nations but beyond their borders. Here, the Tech Corporation, authorised by the state, exerts influence and dictates norms on issues that range from cybersecurity, surveillance, intellectual property, user privacy and most recently, pandemic contact tracing. In the case of the recent self-driving car crashes, the state liability for allowing autonomous cars without sufficient oversight is unlikely to fly as a legal standard outside of issues of faulty state-built infrastructure. Only a legislative attempt can compensate for the regulatory failure in establishing safety standards or oversight.

The Determination of Legal Liability and Compensation

Over the past decade, legal scholars have described the situation of ‘identifying legal liability for autonomous decision-making software powered vehicles’ to be a grey area where the law runs out. This typically creates room for courts to consider questions of legal liability, compensation and criminal action, while creating new legal tests and establishing precedent. However, the other key trend in the legal responses in autonomous vehicle crashes reveals the use of the doctrine of product liability instead of vehicular negligence in cases featuring damage caused by autonomous vehicles. What is clear to researchers working at the intersection of law and technology, is that the current trend of moving cases involving autonomous vehicle collisions away from criminal liability and courts, and towards civil suits and settlements, will prove to be a missed opportunity. This is because it can potentially chip away at the ability of courts to adjudicate or set new precedent. It also makes the debate on ‘product liability’ a fierce contest studied by both legal scholars and economists. Thus, there is a trade-off between allowing these cases to be heard in court, chipping away at the significant role legal systems could potentially play while regulators play catch up, and the project to raise public knowledge and civil society awareness about autonomous decision making is put at risk. 

Scholars like Bryan Smith point out that a shift from the doctrine of vehicular negligence to ‘product liability’ in the short run advances the prevention of injury and the compensation of victims, while keeping the calculations of compensation fairly private between the tech companies and any human victims. In an economic context, the shift to ‘producer’s responsibility’ is a debate on its own, whether it’s regulating the drivers, self-driving manufacturer, lawmakers or the car itself! 

Legal protections and tech corporations

A culture of codified secrecy is hardly new to the corporate form. A direct line can be traced from Wall Street to Silicon Valley and by extension between the legal personhood afforded to Big Banks and Big Tech. It is interesting to think about the distinctions drawn between financial and personal information in the digital age. The contrast almost vanishes when we consider Big Tech and its successful campaign as the dominant corporate form, surpassing even Big Banks in their ability to amass information and then bundling it so all information becomes inherently financial in our new digitally enabled surveillance paradigm. 

In the age of algorithms, a behind the scenes look into the secretive and complex business models, practices and interfaces of leading tech platforms are critical both for users and governments. These are referred to as ‘Black Box Systems’ precisely because they enhance the legal and real secrecy afforded by algorithms and automated systems to tech companies. They become a blind spot to both regulators and consumers at large.  Algorithms, which are largely covered by existing intellectual property standards, have also revived interest in property rights for the digital age. 

More and more predictive algorithms are impacting every aspect of our lives. The paucity of enforcement activity, requiring moral justification and rationale, makes it harder to track illegal or ethical discrimination carried out during self-driver crashes. Frank Pasquale highlighted how predictive algorithms mine personal information to make guesses about individuals’ likely actions and risks. Thus, it becomes imperative to explore the consequences to human values of fairness and justice, when scoring machines make judgments about individuals in order to avoid arbitrary and discriminatory ways.

An unlikely but growing collaboration between independent researchers, former/current Big Tech employees, legal and civil rights activists, has been instrumental in making the implications of automated decision making public knowledge. This offers critical momentum for regulators and legal systems as they play catch up to Big Tech’s bullish attempts to drive both the adoption and research into cyber-physical systems. Most recently, Amazon’s controversial facial recognition software and the company’s aggressive campaign for adoption by law enforcement came under scrutiny by several independent AI researchers, who detailed the higher error rates in identifying women of colour. 

While shaping the future of AI, tech companies’ input is essential, however, they cannot retain absolute power on how their systems impact the society or on how we evaluate the impact morally. In order to boost accountability and transparency, governments need to support independent AI research, create incentives for the industry to cooperate and use that leverage to demand that tech companies share data in properly-protected databases, with access granted to publicly-funded artificial intelligence researchers.

The ‘internet of things’ is growing exponentially, generating unprecedented volumes of data. With autonomous vehicles hitting the roads in increasing numbers and lives at stake, it is necessary to ensure that the liable party is held accountable when things go utterly wrong. The goal of economists, lawyers and policymakers alike then, would be to come up with a ‘pareto optimal’ scenario, while assuring that each party involved does not take undue advantage of each other.

Arushi Massey is a research and teaching fellow at the Department of Political Science at Ashoka University. Her research focuses on the digital political economy and questions at the intersection of law and social theory.

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).