Kathleen Folbigg – A Miscarriage of Justice that Cries to the Heavens

There was no evidence that she killed her 4 children – it was a presumption that their deaths couldn’t have been a coincidence which scientists have now discredited but Stubborn Australian Judges and Politicians Refuse to Admit Their Mistake

Fairfax Media/Getty Images, Kathleen Folbigg, pictured after a court hearing in 2004

It is often assumed that judges are impartial and juries are infallible. But as the false imprisonment of the Birmingham 6 and now Julian Assange shows judges are anything but unbiased or neutral. In the case of the Birmingham 6, Guildford 4 and Maguire 7 there were criminal conspiracies by the police. Nor was the scientific evidence infallible. The evidence of Dr Frank Skuse was discredited but still the Court of Appeal under Lord Lane upheld the conviction.

The Birmingham 6 on their release

If we had a law that any judge who wrongly turned down an appeal had to serve the same time in prison as the innocent person whose conviction they upheld there would be a dramatic reduction in such cases. However that is too much to hope for.

When the Birmingham 6 brought civil actions against the Police for having had confessions beaten out of them Lord Denning ruled against the appeal continuing.  Not because of lack of evidence but because of the implications of admitting that the Police had engaged in a conspiracy, alongside others.  Denning ruled in 1980 that:

“Just consider the course of events if their action were to proceed to trial… If the six men failed it would mean that much time and money and worry would have been expended by many people to no good purpose. If they won, it would mean that the police were guilty of perjury; that they were guilty of violence and threats; that the confessions were involuntary and improperly admitted in evidence; and that the convictions were erroneous… That was such an appalling vista that every sensible person would say, ‘It cannot be right that these actions should go any further’.”

As a result the men served 11 more years in prison. Not that Denning was alone. In 1987 the Birmingham 6 had a second appeal. By then the scientific evidence had been discredited as indeed had all the other evidence. But the 3 judges, led by LJ Lane went out of their way to discredit the defence case. I remember watching the reconstruction on Channel 4 and I was amazed at the sheer obstinacy and dishonesty of the judges. Lane began the verdict with the statement that “The longer this case has gone on, the more convinced this court has become that the verdict of the jury was correct.”

Infamous Police photo of the Birmingham 6

Three years later the Birmingham 6 were cleared by the same Court of Appeal. The Prosecution had conceded the case. A new scientific test, the ESDA test, had been invented that proved, through indentations on the pages of the notebooks that the Police used, proved that the confessions had been beaten out of them.

The notorious West Midlands Police’s response was to destroy the notebooks in their custody in similar cases.

However this article is not about the Irish cases. It is about an Australian woman, Kathleen Folbigg.  Four of her children died before the age of 2. It was a case of Sudden Infant Death.

The Sydney Morning Herald/Getty Images, Kathleen Folbigg (left) at her murder trial in 2003

There was no evidence that Kathleen had inflicted any violence on them or that they had suffered any violence. She was sentenced to 40 years in prison, 30 of them without parole.

Just as in the Irish cases above Australian judges have moved heaven and earth in order to protect an unsafe verdict and keep Kathleen in gaol.  Presumably they believe that losing her children is not enough punishment.

Research has shown that two of the children had genetic abnormalities that could have caused their death. To any reasonable person it would be obvious that there must be a presumption that the same is true with the other two  deaths. 

Yet wooden-headed judges and politicians prefer to keep Kathleen in gaol as and until scientists come up with the proof that the other 2 children also died because of a genetic abnormality.

The concept that an innocent person should have to wait as an until scientists have made further discoveries is in essence reversing the burden of proof and expecting the Defendant to prove their innocence rather than the other way around.

Australia, like Britain, is a common law country where judges make law and precedents.

90 distinguished scientists, including 2 Nobel laureates signed a petition calling for Kathleen’s release yet the Governor of New South Wales Margaret Beazley and the Attorney General Mark Speakman have deliberately prevaricated and delayed. Defending the reputation of NSW’s judicial system is more important than keeping an innocent person behind bars.

Australia’s ABC has produced the video above and the article below explains this appalling case in more detail. But this case is not unique to Australia or Britain. It is a consequence of judicial systems where process and procedures are considered more important than justice.

Perhaps the ultimate example of this lunatic addiction to procedure rather than justice is the application of Arizona state to the US Supreme Court that two prisoners should not be allowed to put forward evidence showing that they are innocent because they failed to do so in an earlier state court hearing despite the woeful incompetence of their state appointed lawyers.  In other words Arizona should have the right to judicially murder them because they were unable to afford decent lawyers!

The Justice for Kathleen Folbigg can be contacted here.

Tony Greenstein

Kathleen Folbigg: Could science free Australian jailed for killing babies?

By Quentin McDermott
Sydney

Published 11 March 2021 

Imagine for a moment what it must feel like if, as a mother, you give birth to four children, one after another, each of whom, as infants, dies from natural causes over a 10-year period.

Then imagine being wrongly accused of smothering them all and being sentenced to 30 years in jail for four terrible crimes you did not commit.

That narrative is emerging as potentially the true story of Kathleen Folbigg, an Australian mother from the Hunter Valley region of New South Wales (NSW).

Branded at her trial in 2003 as "Australia's worst female serial killer", Folbigg has already spent nearly 18 years in prison after being found guilty of the manslaughter of her firstborn Caleb, and the murder of her three subsequent children, Patrick, Sarah and Laura.

But now, fresh scientific evidence is turning this case on its head.

Last week a petition signed by 90 eminent scientists, science advocates and medical experts was handed to the Governor of NSW, requesting a pardon for Folbigg and her immediate release.

Among the signatories were two Nobel laureates and two Australians of the Year, a former chief scientist, and the president of the Australian Academy of Science, Professor John Shine, who commented: "Given the scientific and medical evidence that now exists in this case, signing this petition was the right thing to do."

If Folbigg is freed and her convictions are overturned, her ordeal will be seen as the worst miscarriage of justice in Australia's history - worse even than the case of Lindy Chamberlain, who served three years in prison after being wrongly convicted of murdering her baby, Azaria, at Uluru.

The petition exposes a troubling gulf in this case between science and the law.

Over several appeals and a detailed inquiry which re-examined Folbigg's convictions in 2019, Australia's judges have resolutely rejected the notion of reasonable doubt in her case, giving greater weight to the circumstantial evidence presented at her trial, and the ambiguous entries which she made in contemporaneous diaries.

Kathleen Folbigg and her children

"It remains that the only conclusion reasonably open is that somebody intentionally caused harm to the children, and smothering was the obvious method," said Reginald Blanch, a former judge who led the inquiry. "The evidence pointed to no person other than Ms Folbigg."

The NSW government further assured the public two years ago "that no stone has been left unturned".

But the science, increasingly, points to the conclusion that there must be reasonable doubt about her convictions. "The science in this case is compelling and cannot be ignored," says human geneticist and researcher Professor Jozef Gecz.

Child and public health researcher Professor Fiona Stanley says: "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 Folbigg children."

That alternative explanation lies in the recent discovery of a genetic mutation in Kathleen Folbigg and her two daughters which, the scientists say, was "likely pathogenic" and which they believe caused the deaths of the two girls, Sarah and Laura.

A different genetic mutation has been discovered in the two boys, Caleb and Patrick, although the scientists acknowledge that here, further research is needed.

The initial discovery of the two girls' mutant gene, CALM2 G114R, was made in 2019 by a team led by Carola Vinuesa, a professor of immunology and genomic medicine at the Australian National University, and a driving force behind the petition calling for Folbigg's release.

"We found a novel, never-before reported mutation in Sarah and Laura that had been inherited from Kathleen," Professor Vinuesa told the BBC.

"The variant was in a gene called CALM2 (that encodes for calmodulin). Calmodulin variants can cause sudden cardiac death."

In November last year, scientists from Australia, Denmark, France, Italy, Canada and the US reported further findings in the prestigious medical journal, Europace, published by the European Society of Cardiology.

Prof Carola Vinuesa's research led to the discovery of the mutant gene

A team in Denmark, led by Aalborg University Professor Michael Toft Overgaard, conducted experiments designed to test the pathogenicity of the CALM2 variant.

They found that the effects of the Folbigg mutation were as severe as those of other known CALM variants, which regularly cause cardiac arrests and sudden death, including in young children while asleep.

The scientists stated: "We consider the variant likely precipitated the natural deaths of the two female children."

Both girls were suffering from infections before they died, and the scientists suggested that: "A fatal arrhythmic event may have been triggered by their intercurrent infections."

The scientists also reported that Caleb and Patrick each carried two rare variants in BSN, a gene shown to cause early onset lethal epilepsy in mice.

The recent genetic discoveries follow in the footsteps of earlier expert medical opinions which support the theory that all four children died from natural causes.

Professor Stephen Cordner, a Melbourne based forensic pathologist, re-examined the children's autopsies in 2015, concluding that: "There is no positive forensic pathology support for the contention that any or all of these children have been killed." He added: "There are no signs of smothering."

Three years later, in 2018, forensic pathologist, Matthew Orde, Clinical Associate Professor at the University of British Columbia, told the Australian Broadcasting Corporation: "Fundamentally, I'm in agreement with Professor Cordner, in that all four of these child deaths could be explained by natural causes."

Now, as Lindy Chamberlain did before her, Kathleen Folbigg bides her time in jail, awaiting the outcome of the petition and a recent hearing in the NSW Court of Appeal. She continues to protest her innocence.