COMMENTARY: “Science and the law at odds in a tragedy,” by Quentin McDermott, published by The Advertise on March 4, 2021.
GIST: "What happened this week is unique in the annals of Australian criminal history. A petition endorsed by 90 top scientists, medical practitioners and science advocates — among them, two Nobel laureates — was handed to the Governor of New South Wales, calling for the pardon and immediate release of a woman convicted of killing her four children.
Kathleen Folbigg was described at the time of her convictions in 2003 as “Australia’s worst female serial killer” and “the most hated woman in Australia”.
Uniquely in this case, it isn’t just her legal team, friends and supporters who want her convictions to be overturned. So too does the impressive array of medical and scientific experts.
“Given the scientific and medical evidence that now exists in this case, signing this petition was the right thing to do,” said the president of the Australian Academy of Science, Professor John Shine.
“Expert advice should always be heard and listened to. It will always trump presumption,” Australia’s former chief scientist, Prof Ian Chubb, said.
Child and public health researcher Prof Fiona Stanley said: “It is deeply concerning that medical and scientific evidence has been ignored in preference of circumstantial evidence. We now have an alternative explanation for the death of the children.”
The petition highlights a troubling gulf in this case between science and the law.
Lawyers and judges have relied on questionable coincidental evidence and their own interpretations of the diary ramblings of a grief-stricken woman.
How did we get here?:
The case against Ms Folbigg was circumstantial. No forensic evidence existed to demonstrate that she had smothered any of her children, let alone all four. Instead, the jury was told that ambiguous entries in her private diaries amounted to confessions of guilt. Much was made of the fact that she had raised the alarm after finding, in turn, each of her children dead.
In his closing address to the jury, Mark Tedeschi QC, the trial prosecutor, disputed the suggestion that all four children had died from natural causes.
“I can’t disprove any of that,” he said with a rhetorical flourish, “but one day some piglets might be born ... come out of the sow with wings on their back, and the next morning Farmer Joe might look out a kitchen window and see these piglets flying out of his farm. I can’t disprove that either.”
David Balding, professor of statistical genetics at Melbourne University, said that pig analogy was “incredibly unprofessional” and “pretty disgraceful”.
He points out that if cases of families with multiple children dying from natural causes are statistically rare, so too are cases of mothers murdering their children, one after another.
The case re-examined:
In 2015 the Melbourne-based forensic pathologist Professor Stephen Cordner re-examined the evidence, concluding: “There is no positive forensic pathology support for the contention that any or all of these children have been killed.”
In 2018, Dr Matthew Orde, clinical associate professor at the University of British Columbia, told the ABC: “I’m in agreement with Prof Cordner, in that all four of these child deaths could be explained by natural causes.” By this time there was clear evidence that Kathleen Folbigg’s fourth child Laura had died from natural causes. At autopsy following her death in 1999, she was found to have myocarditis — an inflammation of the heart muscle which can be fatal.
Dr Allan Cala, the pathologist who carried out the autopsy, recorded the cause of death as “undetermined” in light of the prior deaths of three siblings. He judged the myocarditis to be “patchy” and not life-threatening.
Prof Cordner, by contrast, found Laura’s death “has been caused unexceptionally by myocarditis”.
When Dr Orde re-examined the slides of Laura’s heart muscle in 2018, he concluded: “This is an eminently fatal case of myocarditis.” Finally, in August 2018, NSW Attorney-General Mark Speakman ordered an inquiry into Ms Folbigg’s convictions, to be headed by a former District Court chief judge, Reginald Blanch.
The 2019 inquiry:
As the inquiry hearings unfolded, Dr Cala, who had helped to trigger the homicide investigation following Laura’s death, acknowledged: “With Laura, there’s undoubtedly myocarditis and I’ve said I can’t exclude that as being the cause of death.” But the inquiry was not just a reconsideration of old evidence. Late in the day, fresh genetic evidence was presented by Prof Carola Vinuesa and her colleagues at the ANU, suggesting a hitherto undiscovered inherited genetic mutation known as CALM2 G114R had a part in the deaths of Sarah and Laura.
The CALM2 gene encodes for calmodulin, variants of which can cause sudden cardiac death.
Prof Vinuesa’s conclusions were backed by Prof Peter Schwartz, a cardiologist and world- leading authority in genetic causes of unexpected death. He told the inquiry the CALM2 variant was the likely cause of the girls’ deaths.
He asked for the inquiry to be reopened. His request was refused.
The Europace paper:
Last year, Prof Michael Toft Overgaard from Denmark, in collaboration with calmodulin experts from the US and Canada, performed a series of experiments on the CALM2 variant. The 27 authors of the resulting paper, whose findings were peer-reviewed, concluded that the calmodulin variant likely precipitated the deaths of Sarah and Laura. They said Laura’s myocarditis may have triggered a lethal cardiac arrhythmia of the type caused by calmodulin variants.
Prof Vinuesa and her colleagues also found that Caleb and Patrick had “biallelic rare missense variants in a gene, that when defective, causes early-onset lethal epilepsy in mice”. She says the variants need further work, but “highlight the fact that a single unifying cause was not required” to explain all four deaths.
What is the development the scientists are arguing should result in Kathleen Folbigg being freed?
Both of ’s two daughters were found to have inherited from her a previously unknown “G114R’’ variant in the CALM2 gene. Research established the mutation was likely to lead to sudden and unexpected death in infancy by cardiac arrest. Researchers also noted that her two sons had illnesses that can aggravate or cause sudden respiratory arrest.
The tragic timeline:
1968 Thomas Britton stabs his wife Kathleen Mary Donavan 24 times, killing her in the street. Their 18-month-old daughter, also named Kathleen, is placed into foster care a year later.
1987 Kathleen marries Newcastle steelworker Craig Folbigg.
February 1, 1989 Kathleen and Craig Folbigg’s first child, Caleb Folbigg, is born.
February 20, 1989 Caleb is found dead in his bed just 19 days later. June 3, 1990 Second child Patrick Folbigg is born.
February 18, 1991 Patrick dies aged eight months.
October 14, 1992 Third child and first daughter Sarah Folbigg is born. August 29, 1993 Sarah dies, aged 10 months.
August 7, 1997 Fourth child and second daughter Laura Folbigg is born. February 27, 1999 Laura dies, aged 19 months.
April 19, 2001 Kathleen Folbigg is arrested and charged with murder. Her husband Craig had gone to police after reading one of her diaries. She had written diaries for decades, which included sentences such as her daughter Sarah had “left, with a bit of help’’. And “obviously, I am my father’s daughter.’’ The diary entries would become pivotal in her convictions.
May 21, 2003 Kathleen Folbigg is found guilty of the murders of Patrick, Sarah and Laura and the manslaughter of Caleb. She is later sentenced to 40 years in jail, 30 without parole.
February 17, 2005 Her sentence is reduced on appeal to 30 years with a non-parole period of 25 years.
2015 A petition is lodged by Folbigg’s legal team with the NSW governor seeking a review of her convictions, following further medical and scientific evidence.
August 22, 2018 NSW Attorney-General Mark Speakman announces a judicial inquiry into Folbigg’s convictions.
2019 NSW District Court chief judge Reginald Blanch QC finds the evidence presented to the inquiry reinforced that she was responsible for the deaths.
October 2020 Folbigg is granted the right to a Court of Criminal Appeal hearing against the Blanch findings.
February 2021 Appeal is heard and findings will be handed down on a date to be fixed.
March 3 A new petition signed by 90 eminent scientists and doctors calls for NSW governor Maria Beazley to pardon Folbigg on the basis of new evidence which they say provides a reasonable explanation that the children died of natural causes.
NATIONAL ■ Professor John Shine, Australian Academy of Science president, 2010 winner of Prime Minister’s Prize for Science, renowned biochemist.
■ Emeritus Professor Elizabeth Blackburn, Tasmanian-born scientist, 2009 Nobel Laureate.
■ Professor Peter Doherty, 1996 Nobel Laureate, 1997 Australian of the Year, patron and namesake of the Doherty Institute at the University of Melbourne.
■ Professor Fiona Stanley, distinguished research professor, University of Western Australia, 2003 Australian of the Year.
■ Professor Ian Frazer, 2006 Australian of the Year, co-inventor of the vaccine which prevents cervical cancer.
■ Emeritus Professor Ian Chubb, former Australian Chief Scientist and former vice- chancellor of ANU and Flinders universities.
■ Emeritus Professor Richard Larkins, former VC Monash University, former Chancellor LaTrobe University, former chairman of the National Health and Medical Research Council.
■ Professor Cheryl E Praeger, winner 2019 Prime Minister’s Prize for Science, Emeritus Professor of Mathematics at the University of Western Australia.
■ Professor Terence Speed, 2013 winner Prime Minister’s Prize for Science, laboratory head, bioinformatics division, Walter and Eliza Hall Institute for Medical Research. ■ Laureate Professor Ingrid E Scheffer, president of the Australian Academy of Health and Medical Sciences, senior fellow at the Murdoch Children’s Research Institute."
Link to the story
http://netk.net.au/Folbigg/Folbigg31.pdf
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