GIST: "The freeing of Kathleen Folbigg on Monday after an inquiry found there was reasonable doubt she had killed her four children must be a clarion call for reforming the way the justice system handles science.
Folbigg’s case is further evidence of rotting foundations.
The system relies on non-independent experts and non-expert judges and jurors, and continues to give great weight to science that has been called into question.
“If a case of this magnitude does not trigger thoughts of reform, I am not sure what ever will,” Anna-Maria Arabia, CEO of the Australian Academy of Science, told me on Tuesday. “This is an extraordinary opportunity for law reform and a more science-sensitive legal system.”
Folbigg was sentenced to 40 years in prison and labelled Australia’s worst female serial killer after her 2003 conviction.
She was pardoned on Monday after a second inquiry found there was reasonable doubt about her guilt.
Folbigg and two of her children carried a variation of the gene CALM2, which leads the body to produce a malformed version of calmodulin, a protein that regulates calcium uptake in the cells of the heart.
The heart needs a finely tuned balance of calcium, potassium and sodium to regulate the electrical charges that make it beat.
A malformed copy of calmodulin can lead to heart rhythm problems – and possible sudden death (Ben Cubby does a great job covering the science here).
With persuasive evidence of a possible genetic cause of death for Sarah and Laura Folbigg, and evidence of a separate neurogenetic disorder in Folbigg’s son Patrick, there was enough reasonable doubt for Folbigg to be pardoned.
Australia’s justice system has, with isolated exceptions, spent much of the past 20 years trying not to look as other countries dealt with courtroom science scandals.
Now we have one of our own – and we must learn from it.
There was Roy Meadow, the British paediatrician who coined what became known as Meadow’s law: one sudden infant death is a tragedy, two is suspicious and three is murder.
Meadow’s law would turn out to be pseudoscientific; it is entirely possible for a parent to pass a lethal genetic mutation onto multiple children. Two mothers convicted on Meadow’s evidence were set free.
One of those mothers, Sally Clarke, was initially accused of shaking her baby – another area where courts seem to ignore deep weaknesses in the science.
The paediatric neurosurgeon who first observed the condition has gone public with doubts over the way courts and experts now diagnose it.
Rather than taking concerns being raised by scientists seriously, Australian experts threatened a journal with legal action.
Then there’s forensics.
A 2016 US study found five major forensic science techniques either do not work or have no strong evidence proving they work.
My reporting on that study, and similar concerns held by Australian experts, so concerned Justice Chris Maxwell, president of the Victorian Court of Appeal, that he went public with calls for legal changes to the way courts deal with forensic science.
Victoria’s government later promised to bring the matter up with its counterparts in calling for a national review. But amid the pandemic, the review was shelved.
Systemic issues, systemic solutions
Experts identify several weak points.
First, our adversarial justice system allows prosecution and defence to introduce their own favoured scientific evidence and experts, to present their own narrative.
“Scientists who are expert witnesses often say they never want to do it again: they feel cornered, they feel unable to present all their evidence,” says Arabia.
Second, we leave it up to lay judges and jurors to evaluate duelling scientific evidence. If I’ve learnt anything from being a science journalist, it is that evaluating contested evidence is extremely difficult.
Third, the ability to present evidence in court is heavily weighted towards the prosecution, which calls upon the resources of police forensics departments. And forensic evidence is often presented as fact (which juries, fed a diet of CSI, are all too willing to believe), rather than as a probability
“There is no requirement on the state, when it calls scientific and expert evidence in criminal proceedings, that the technique be validated and reliable,” says Professor Gary Edmond, a member of the Council of the Australian Academy of Forensic Sciences.
One solution proposed by the academy: court-appointed scientific advisers.
They could independently advise a court on which experts to call, or even directly evaluate evidence.
To further avoid bias, you could empanel multiple scientists and ask them to come to a consensus.
What counts as reliable scientific evidence “is best adjudicated by independent experts in a given field”, says Professor Emma Cunliffe, a legal academic and author of a book on the Folbigg case.
Reform is a big task, and one that may lead to more people being released from jail.
That seems like a small price to pay for a legal system based on the principle that it is better that 10 guilty people escape than one innocent person suffer.
“There is a complacency among judges,” says Cunliffe. “And I think that’s misplaced.""
The entire story can be read at:
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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