- By Hannah Ritchie
- BBC News, Sydney
6 hours ago
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Kathleen Folbigg has always maintained her innocence
Kathleen Folbigg has been called by many names. A “baby killer”, “Australia’s worst mother”, a “monster”.
But on Monday, Ms Folbigg said she was “extremely grateful” when she was freed for the first time in 20 years after being pardoned for killing her four children.
The historic decision follows one of the worst miscarriages of justice in Australian history, her lawyers say, and she has scrutinized the evidence that experts described as “provenly unreliable and misogynistic” that contributed to her conviction in 2003.
It was a heartbreaking case that sparked a media frenzy and led to Ms Folbigg’s husband testifying against her in court.
Ultimately, it was the standing up of friends and new discoveries from scientists around the world – including Nobel Prize winners – that led to her release.
Verification of the original belief
Ms Folbigg, who has always maintained her innocence, has lived a life of trauma.
Before her second birthday, her father – who had a history of domestic violence – stabbed her mother to death. For the following year she was shuttled back and forth between relatives’ homes before finally being placed with a foster couple in Newcastle, New South Wales (NSW).
It’s an incident that prosecutors later used in Ms Folbigg’s trial to argue that she was prone to violence.
In 2003, she was sentenced to 40 years in prison for the murders of her children, Sarah, Patrick, and Laura, and the involuntary manslaughter of her first son, Caleb.
All four children died suddenly between 1989 and 1999 between the ages of 19 days and 18 months. Prosecutors alleged that Ms Folbigg choked her.
Caleb, who suffered from mild laryngomalacia — a condition that affects breathing — died in his sleep in 1989.
Patrick, who was diagnosed with cortical blindness and epilepsy, died soon after as a result of a seizure. Sarah and Laura, both suffering from respiratory infections, also died in their cots.
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Two of Mrs Folbigg’s children, Laura (left) and Patrick (right)
Ms Folbigg’s sentence was later reduced to 30 years on appeal, but she lost a number of appeals to her conviction. A 2019 investigation into the case only added weight to the original circumstantial evidence used to support her detention.
But this week, a new inquiry led by retired judge Tom Bathurst concluded there was reasonable doubt about Ms Folbigg’s guilt, as new scientific evidence emerged that her children could have died of natural causes due to incredibly rare gene mutations.
The research was led by Carola Vinuesa, a professor of immunology and genomic medicine at the Australian National University. She began investigating the case in 2018 as concerns grew from medical experts.
After sequencing Ms Folbigg’s DNA, Prof Vinuesa and her team created a genetic map, which they then used to identify mutated genes.
One of the most significant, known as CALM2 G114R, occurred in Mrs. Folbigg and her two daughters. Amazingly, research has linked it to a rare condition that affects one in 35 million people and can cause serious heart abnormalities.
That’s because the genetic variant of CALM G1142R can interfere with the passage of calcium ions into cells – which can ultimately cause the heart to stop beating.
Research by Prof Vinuesa’s team also revealed that Caleb and Patrick possessed another genetic mutation linked to sudden onset epilepsy in mice.
The results tipped the scales in Ms Folbigg’s case, proving that the likelihood of her children dying of heart abnormalities in infancy was worryingly high.
A theory debunked and other shortcomings
It was the death of her daughter Laura in February 1999 that sparked the first police investigation into Ms Folbigg.
“My baby isn’t breathing,” she told an ambulance driver from her home in the rural town of Singleton at the time.
“I had three sids [sudden infant death syndrome] “There are already deaths,” she continued in a recording later played at her trial.
Laura’s death meant that Mrs Folbigg and her husband Craig Folbigg had lost all of their children.
But while Mr Folbigg was initially questioned and arrested as part of the investigation, he soon began helping the police build their investigation into his wife by giving her personal diaries and testifying against her.
During the 2019 investigation into the case, he refused to provide a DNA sample requested by her attorneys. Mr Folbigg’s lawyers say he remains convinced of his ex-wife’s guilt to this day.
The main argument prosecuted at the 2003 trial was that it was statistically unlikely that so many of Ms Folbigg’s children had died accidentally.
Image Credit: Fairfax Media/Getty Images
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Kathleen Folbigg pictured after a court hearing in 2004
In their justification, they cited a now widely discredited legal concept called “Meadow’s Law,” which states that “one cot death is a tragedy, two is a suspicious death, and three is homicide until proven otherwise.”
The principle is named after Roy Meadow, who was once considered Britain’s most important paediatrician. But his reputation rapidly deteriorated after a series of wrongful convictions in cases based on his theory.
In 2005 he was removed from the UK medical register for making misleading statements in the trial of Sally Clark – a lawyer convicted and jailed for the 1999 murders of her two young sons.
Ms Clark’s conviction was overturned in 2003, but relatives said she never recovered from the trauma of her ordeal and died of acute alcohol poisoning in 2007.
Emma Cunliffe, a law professor at the University of British Columbia who wrote a book on Ms Folbigg’s case, says Meadow’s law has been “strongly challenged by medical research” from its inception and “always at odds with principle that the state bears the burden”. to prove crime beyond a reasonable doubt”.
‘In Commonwealth countries, the practice of charging mothers because of a suspected pattern of infant death in a family was more or less completely phased out after 2004,’ explains Prof Cunliffe.
“Ms. Clark’s wrongful conviction was the first salvo against Meadow’s law. But it was the case of Angela Cannings in 2004 that the English Court of Appeal said: “That argument has no place in our courts.”
“Then it should have been ruled out of the legal justification altogether, but it took longer in Australia.”
It wasn’t the only mistake in Ms Folbigg’s case. The evidence used by prosecutors was purely circumstantial, relying on Ms Folbigg’s diaries – which were never examined by psychologists or psychiatrists at the trial – to portray her as an unstable and tantrum-prone mother.
In an entry written in 1997 shortly after the birth of their daughter Laura, Ms Folbigg wrote: “One day [she] will leave. The others did, but this one doesn’t work the same way. This time I am prepared and I know which signals to look out for in myself.”
These and similar statements were taken as an admission of guilt. But in a 2022 investigation into the case, psychological and psychiatric experts rejected that account.
“Regarding the diary entries, the evidence suggests that they were the writings of a … depressed mother who blamed herself for the deaths of each individual child, as opposed to admitting murdering them or otherwise harming them.” New South Wales Attorney General Michael Daley said in announcing Ms Folbigg’s pardon this week.
Prof Cunliffe argues that Ms Folbigg’s 2003 conviction was based at its core on “casual misogyny” and “thinly veiled stereotypes about women”.
“When a mother is suspected of harming children in a criminal proceeding, the notion of what a good mother is becomes much narrower, such that behavior that is considered mundane becomes suspect,” she says.
Prof Cunliffe adds that prosecutors used “discriminatory arguments” to portray Ms Folbigg as an allegedly unsuitable mother to portray her as a murderer.
“They pointed out that she left Sarah with family members on Saturday morning to pursue a part-time job to earn more money for the household as proof that she didn’t love Sarah and didn’t want to take care of her,” and therefore was capable of murdering Sarah,” she says.
“Sleep properly for the first time in 20 years”
In a video statement after her release, Ms Folbigg said she felt “humiliated” by her pardon but will “always mourn and miss her four children”.
Her first night out of prison was spent eating pizza with her oldest friend Tracy Chapman – who had led the campaign for Ms Folbigg’s release.
“She slept in a real bed. She actually said it was the first time she had slept properly in 20 years,” Ms Chapman later told reporters.
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Watch Kathleen Folbigg’s first statement after her release from prison
Although Ms Folbigg has been pardoned, her conviction stands – meaning she still has a long way to go if she wants to have the convictions overturned and seek compensation.
The first step is for retired judge Tom Bathurst to file a full report on the case before referring it to the New South Wales Criminal Court of Appeal, which will have the final say.
“Australia does not have a good automated process for assessing compensation issues in wrongful conviction cases,” says Prof Cunliffe.
“Once again, Kathleen may face an adversarial process to prove her entitlement to compensation.”
As for the aftermath of the case, experts argue that Ms Folbigg’s pardon shed light on how slow Australia’s legal system was in responding to new scientific evidence.
“Now the question must be asked: how do we create a system where complex and emerging science can more easily inform the justice system?” the Australian Academy of Sciences said in a statement this week.