QUOTE OF THE DAY: "In her ground-breaking book Murder, Medicine and Motherhood, published 12 years ago, Australian law professor Emma Cunliffe detailed the way in which Folbigg was portrayed during her trial as a bad mother. Speaking to The Australian this week, she said: “Kathleen Folbigg was charged because some medical experts believed that a pattern of unexplained infant deaths in a family could only be explained by murder. Folbigg was also subjected to unfair and misogynistic generalisations about her mothering. The demonisation to which she was subjected is more reminiscent of a medieval witch hunt than of a rational trial process.”
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PASSAGE ONE OF THE DAY: "If her convictions, as expected, are overturned, Folbigg will emerge from prison as a horribly wronged woman, the victim of the most serious miscarriage of justice in Australia’s recent criminal history; the mother who lost four children in succession, who was wrongfully charged with their murders, wrongfully convicted and subsequently vilified for heinous crimes she didn’t commit."
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PASSAGE TWO OF THE DAY:
But the fault-lines in this case go back much further. In a 545-page submission, Folbigg’s lawyers assert that at trial, the prosecution’s case was built on three main falsehoods:
- the idea that four infants in the same family could not possibly all die from natural causes;
- the logically questionable notion that because there was no sign of physical harm being done to the children, that could itself be indicative of smothering, which can leave no traces;
- and thirdly, the interpretation of entries in Folbigg’s diaries as being “virtual” admissions of guilt."
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GIST: "On Wednesday this week, a senior legal counsel stood up in a dour Sydney courtroom to deliver a submission that will send shockwaves through the NSW judiciary.
For the past nine months, Sophie Callan SC has acted as counsel assisting Tom Bathurst, a former chief justice of NSW, who is presiding over a second inquiry into Kathleen Folbigg’s convictions for killing all four of her children.
Folbigg was found guilty at trial in 2003 of deliberately smothering each of her four children, Caleb, Patrick, Sarah and Laura, in fits of anger and stress. She was sentenced to 40 years behind bars, reduced on appeal to 30 years. In an instant, she became, in the media’s eyes, “Australia’s worst female serial killer” and “the most hated woman in Australia”.
Folbigg, however, has always professed her innocence and has continually and repeatedly denied harming any of her children.
Callan announced that after studying all of the evidence, it was open to Mr Bathurst to find “reasonable doubt” as to Folbigg’s guilt.
Remarkably, Sally Dowling SC, the NSW Director of Public Prosecutions, has also acknowledged there was reasonable doubt surrounding her convictions, although in a clear attempt at damage control,
Dean Jordan SC, for the DPP, has asserted that “this substantial and extensive body of new evidence was unknown at the time of Ms Folbigg’s trial”.
If Mr Bathurst agrees with his counsel and the DPP, that in turn means Folbigg will be freed from prison after 20 years behind bars.
Mr Bathurst has been asked to recommend to the Governor of NSW that Folbigg be pardoned and released, and her case referred to the Court of Criminal Appeal, for her convictions to be quashed.
Realistically, the only question now is: when will that happen?
If her convictions, as expected, are overturned, Folbigg will emerge from prison as a horribly wronged woman, the victim of the most serious miscarriage of justice in Australia’s recent criminal history; the mother who lost four children in succession, who was wrongfully charged with their murders, wrongfully convicted and subsequently vilified for heinous crimes she didn’t commit.
Those two words, “reasonable doubt”, represent a disaster for the NSW judiciary which, through Folbigg’s trial, multiple appeals and a previous inquiry, has continued to assert her guilt.
The determination of “reasonable doubt” also represents a triumph for those scientists who, for the past four years, have put the case to a largely sceptical legal fraternity that a newly discovered genetic variant triggered the deaths of her two daughters.
In March 2021, Folbigg’s legal team lodged a petition with the state governor calling for her pardon and release. It was backed by three Nobel laureates and more than 150 scientists and science advocates. That petition, and the determined science advocacy that accompanied it, led to this inquiry.
This week, Australian Academy of Science chief executive Anna-Maria Arabia said while the inquiry process had to be allowed to fully take its course, she was relieved that science had been heard.
“The academy is pleased to have had the opportunity to assist this inquiry as an independent scientific adviser. It demonstrates a role for independent scientific advice in the justice system, particularly where there is complex and emerging science,” she said.
“The new genetic evidence in this case has now been peer-reviewed by scientists and - thoroughly tested during this inquiry and has informed the submission made by counsel assisting that reasonable doubt can be found in relation to Ms Folbigg’s convictions.”
Behind those comments lies a frustration that until now, those scientists who have put forward an alternative hypothesis to the prosecution’s argument that Folbigg killed her children have not always been treated with the respect due to them and their expertise.
But the fault-lines in this case go back much further.
In a 545-page submission, Folbigg’s lawyers assert that at trial, the prosecution’s case was built on three main falsehoods:
- the idea that four infants in the same family could not possibly all die from natural causes;
- the logically questionable notion that because there was no sign of physical harm being done to the children, that could itself be indicative of smothering, which can leave no traces;
- and thirdly, the interpretation of entries in Folbigg’s diaries as being “virtual” admissions of guilt.
Only now, 20 years later, has this interpretation of Folbigg’s journals been properly challenged by psychological and psychiatric experts.
They have told the inquiry that the journals were not confessions but rather were written by a mother consumed with grief and suffering the natural guilt and depression that any mother whose children had died on her watch would experience.
In her ground-breaking book Murder, Medicine and Motherhood, published 12 years ago, Australian law professor Emma Cunliffe detailed the way in which Folbigg was portrayed during her trial as a bad mother.
Speaking to The Australian this week, she said: “Kathleen Folbigg was charged because some medical experts believed that a pattern of unexplained infant deaths in a family could only be explained by murder.
Folbigg was also subjected to unfair and misogynistic generalisations about her mothering.
The demonisation to which she was subjected is more reminiscent of a medieval witch hunt than of a rational trial process.”
At the first inquiry into her convictions in 2019, headed by Reginald Blanch, a former chief judge of the NSW District Court, Folbigg was invited to give evidence about her diaries and when she entered the witness box, was badgered, over and over again, to admit to killing her children.
Seventy times she was challenged and each time she denied having done so.
The aggressive, adversarial cross-examination was described by forensic psychologist Patrick Sheehan at this year’s inquiry as “quite brutal”.
Cunliffe commented at the time that “In a case such as this, finding truth requires thoughtful engagement with experiences of bereavement, mothering through grief, and the strains that infant death imposes on a marriage.
Those who cross-examined Folbigg last week showed no interest in this kind of understanding.
The inquiry has not sought expert evidence to help it learn about maternal bereavement and its potential effects on a mother’s self-expression.”
At this year’s inquiry, Callan and her team followed a very different path by inviting psychologists and psychiatrists to offer their expert interpretations of the diaries, and their own assessment of Folbigg’s state of mind when she wrote them.
Mr Sheehan wrote: “In my view, the totality of diary entries can be explained in ways that do not implicate her having murdered her children and I believe these benign interpretations to be more probable and plausible in considering the totality of evidence put before me.”
In 2019, Mr Blanch wrote that the “significant” investigations conducted by his inquiry had failed to identify a reasonable natural explanation for the children’s deaths, and had instead “produced evidence that reinforces Ms Folbigg’s guilt”.
He argued: “It remains that the only conclusion reasonably open is that somebody intentionally caused harm to the children, and smothering was the obvious method. “The evidence pointed to no person other than Ms Folbigg.”
That opinion has now been emphatically rejected by Callan, who this week contradicted the notion that Folbigg was a child-killer, describing her instead as a “loving and caring mother”.
Cunliffe this week praised Callan, saying she had “dealt carefully and thoroughly with the evidence, including the original trial evidence”. She added: “For more than 20 years, the NSW legal system has looked away from the compelling evidence that yet another miscarriage of justice had arisen. “I am glad that right is finally prevailing in this case, but Kathleen Folbigg will never reclaim all that she has lost at the hands of the NSW legal system.”
This week’s events represent a stunning reversal of fortune for Folbigg and for her legal team.
But it also comes at a cost - not least, the time it has taken for justice, finally, to be served.
For the past eight years at least, the NSW legal hierarchy has known that serious questions were being raised about Folbigg’s convictions but they refused to take them seriously.
In 2015, in a detailed re-examination of the case, eminent forensic pathologist Stephen Cordner argued that: “There is no positive forensic pathology support for the contention that any or all of these children have been killed.”
Cordner’s report accompanied a petition to the state governor calling for a judicial review of the case, which lay unanswered for three years until in August 2018 the first inquiry was announced by the then-attorney general Mark Speakman.
At that inquiry, fresh genetic evidence was presented by highly regarded immunologist Carola Vinuesa, demonstrating that Folbigg and her two daughters, Sarah and Laura, carried a genetic variant, CALM2 G114R, that was likely pathogenic.
Blanch declined to reopen the inquiry, to allow for further experiments to be carried out on the variant, writing in a brief addendum to his report: “I am satisfied that no further available genetic related testing would materially alter the effect of the available information.”
In the event, the opposite has been shown to be the case.
Extensive further testing of the cardiac mutation by two Danish experts, professors Michael Toft Overgaard and Mette Nyegaard, led them to tell this year’s inquiry that “In our opinion, based on the updated research data and the current understanding of human genetics, the CALM2 G114R mutation is sufficiently deleterious to have caused the death of the two Folbigg daughters”.
Not all the inquiry’s experts have agreed with this, but even the more sceptical specialists have not excluded it as a possibility.
The fresh genetic evidence, coupled with the view of several prominent forensic pathologists that all four Folbigg children died from natural causes, has added weight to this week’s submission by Callan that there was now reasonable doubt surrounding Folbigg’s convictions.
Arabia says: “We hope this case opens the door to a more refined consideration of science in the nation’s judicial systems. Australia must now start looking ahead to reforms to ensure there are mechanisms for re-examination of cases after appeals have been exhausted, when new scientific evidence is forthcoming.”
One of those mechanisms may be the establishment of Criminal Cases Review Commissions – independent bodies with extensive powers to investigate alleged miscarriages of justice.
Cunliffe, who lives and works in Canada, says: “NSW should make its criminal cases review process independent of the political process and fair to all offenders, regardless of their financial means.
Canada already has a stronger criminal case review system than NSW, and its attorney-general is now taking steps to make it even stronger and more independent.
“NSW should look to the Canadian model as it overhauls its present approach.” Folbigg, meanwhile, still incarcerated, is left to ponder what might have been and what lies ahead.
Her lifelong friend Tracy Chapman told The Weekend Australian: “It’s incredibly important to set this right. Kathleen is no serial killer, and she has always wanted an honourable epitaph for her children. They cannot rest in peace until that happens.""
The entire media report can be read at:
http://netk.net.au/Folbigg/Folbigg136.pdf
PUBLISHER'S NOTE: I am monitoring this case/issue/resource. Keep your eye on the Charles Smith Blog for reports on developments. The Toronto Star, my previous employer for more than twenty incredible years, has put considerable effort into exposing the harm caused by Dr. Charles Smith and his protectors - and into pushing for reform of Ontario's forensic pediatric pathology system. The Star has a "topic" section which focuses on recent stories related to Dr. Charles Smith. It can be found at: http://www.thestar.com/topic/charlessmith. Information on "The Charles Smith Blog Award"- and its nomination process - can be found at: http://smithforensic.blogspot.com/2011/05/charles-smith-blog-award-nominations.html Please send any comments or information on other cases and issues of interest to the readers of this blog to: hlevy15@gmail.com. Harold Levy: Publisher: The Charles Smith Blog;
SEE BREAKDOWN OF SOME OF THE ON-GOING INTERNATIONAL CASES (OUTSIDE OF THE CONTINENTAL USA) THAT I AM FOLLOWING ON THIS BLOG, AT THE LINK BELOW: HL:
https://www.blogger.com/blog/post/edit/120008354894645705/4704913685758792985
FINAL WORD: (Applicable to all of our wrongful conviction cases): "Whenever there is a wrongful conviction, it exposes errors in our criminal legal system, and we hope that this case — and lessons from it — can prevent future injustices."
Lawyer Radha Natarajan:
Executive Director: New England Innocence Project;
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FINAL, FINAL WORD: "Since its inception, the Innocence Project has pushed the criminal legal system to confront and correct the laws and policies that cause and contribute to wrongful convictions. They never shied away from the hard cases — the ones involving eyewitness identifications, confessions, and bite marks. Instead, in the course of presenting scientific evidence of innocence, they've exposed the unreliability of evidence that was, for centuries, deemed untouchable." So true!
Christina Swarns: Executive Director: The Innocence Project;
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YET ANOTHER FINAL WORD:
David Hammond, one of Broadwater’s attorneys who sought his exoneration, told the Syracuse Post-Standard, “Sprinkle some junk science onto a faulty identification, and it’s the perfect recipe for a wrongful conviction.”
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