04/02/1997:
My guilt of how responsible I feel for them all haunts me, my fear of it happening again, haunts me …
and this quote talking about Laura:
25/10/1997:
Wouldn’t have handled another like Sarah. She’s saved her life by being different.
While I agree that these entries, on the face of them, appear disconcerting, if we consider them from the perspective of Kathleen being innocent, what could they indicate? One interpretation is that she feels tremendous guilt for not protecting her children. Read in isolation, the entry written on 4 February 1997 is not, in my opinion, suspicious; however, when considered with the second quote from October of that year, it could be problematic. But let’s look at the second entry. Could Kathleen have meant that Laura saved her life by having different medical problems, not initially appearing to have the same breathing difficulties as some of her siblings? And the first part of the sentence – maybe it just means what it says, that she would have struggled to cope, not that she would have intentionally harmed the child.
Kathleen’s entry on 1 January 1997 – that ‘stress made me do terrible things’ – does not necessarily mean that she hurt her children. That is just one interpretation. Is it possible that she felt guilty because she had failed to protect her children from dying?
It’s really difficult to interpret these entries, as no one except Kathleen knows what she was thinking when she wrote them, and it’s not possible to get inside her mind as the diaries are not available in full and the quotes are being taken from those in the official court documents, the context is lost.
Although purely circumstantial, Ryan began to build a case against Kathleen for murder. It took him two years, but on 19 April 2001 Kathleen Megan Folbigg was arrested at her home and charged with the murder of her four children, the allegation being that she intentionally smothered them all. This is where I start to get really concerned. During the bail hearing at Maitland Local Court, Police Prosecutor Daniel Maher told the court that he would use contents taken from Folbigg’s diaries, medical evidence from forensic pathologists, and testimony from her estranged husband, Craig, to prove that Kathleen had murdered her children. Maher notes that no death in isolation had caused concern – it was the cumulative effect of the four deaths that could only mean that the children had been suffocated. He went further, saying that the deaths were not consistent with SIDS, and presented evidence from a forensic pathologist, Dr Janice Ophoven, which gave the chances of all the children dying of cot death as one in a trillion. To reach this figure, it appears Ophoven used the same discredited statistical method as the (previously) eminent British paediatrician Professor Sir Roy Meadow, in the infamous Sally Clark case in the UK, of simply multiplying the chance of one SIDS death in families comparable to the Folbiggs (one in 1000 in a non-metropolitan New South Wales region) and multiplying it by itself with each new death as though they were independent occurrences. In the case of Sally Clark, a thirty-five-year-old solicitor, her first son died suddenly within a few weeks of birth in 1996. His death was not considered suspicious; it was the occurrence of her second son’s death in a similar manner that led to her arrest and trial for the murder of both babies.
At the trial in Clark’s case, the prosecutor stated that the likelihood of an infant dying of SIDS was one in 8543, and therefore the probability of two infants from the same family dying of SIDS was simply the square of this figure: 85432 = approximately one in 73 million. This method, of course, presumes that the two deaths are independent – an assumption which cannot be made in cases of cot death. This is because SIDS, although an extremely rare event, is a diagnostic category for a cause of death when all possible alternative causes have been eliminated. As it is not yet known why some children suddenly and unexpectedly die, the possibility exists that some families are predisposed to losing children to SIDS for a number of reasons, both environmental and genetic. An informed statistical analysis would have offered different findings – and different evidence for the jury to digest.
Meadow was also an advocate of the maxim – known in Britain as ‘Meadow’s law’ – that one cot death is a tragedy, two are suspicious, but three cot deaths is murder until proven otherwise. There can be little doubt that this premise played a part in the charging of Clark.
The evidence from Professor Meadow was described at Clark’s second appeal in 2003 as ‘manifestly wrong’ and ‘grossly misleading’. Following this appeal and Sally’s subsequent release, the British Attorney-General ordered a review of all similar cases involving Professor Meadow in which his evidence helped secure a conviction. Further to this, an expert committee was formed, under House of Lords peer Helena Kennedy QC, to consider how cases of SIDS should be investigated in the future. All this was too late for Sally Clark, who died of acute alcohol poisoning at her home in March 2007. For her family, the price could not have been higher. Clark’s case has been described as one of the greatest miscarriages of justice in modern British legal history.
The statistical method outlined above was not appropriate in Sally Clark’s case, and it was not suitable in Kathleen Folbigg’s either. Brian Doyle, Kathleen’s defence counsel, countered this approach, telling the court the deaths were coincidental, and that every child had been ill at some point prior to their deaths. After hearing all the submissions, Magistrate Richard Wakely refused bail and ordered Folbigg to be held in custody to await trial.
THE ALTERNATIVE SUSPECT: THE CHILDREN’S MEDICAL CONDITIONS
At trial, it was recognised that there were only two real possibilities to consider. The first was that the children all died as a result of natural causes. It could be that each child died of different causes, or the same cause, and if the latter was the case then perhaps an underlying congenital abnormality or predisposition to health problems was the root problem. If this were the case, then a plausible alternative explanation would have to be made to account for Kathleen’s diary entries, as they would certainly be used in evidence against Folbigg at trial. The second alternative was that Kathleen had intentionally smothered her children, leading to cerebral hypoxia (where the brain is completely starved of oxygen). It was recognised that the cause of death for two of the children – Caleb and Sarah – was initially ascribed to SIDS, meaning that the post-mortems in their cases were not as exhaustive as they would have been had foul play been suspected. It is not possible, unless the bodies remain available, to then go back and collect further samples and run additional tests to check for other possible causes of death.
We have already discredited the Crown’s flawed statistical argument that the likelihood of the children dying of natural causes was one in a trillion. Although this argument did not make it to trial as the presiding judge recognised the flaws and deemed it inadmissible at the pre-trial stage, it concerns me that a forensic pathologist was applying Meadow’s logic. By the time Kathleen Folbigg went to trial, Meadow’s whole philosophy had been widely discredited, and Sally Clark won her second appeal, with the judgement passed down on 11 April 2003, during Folbigg’s trial.
Among the potential causes of death for Kathleen’s children, in Caleb’s case it is possible that he died as a result of his having a lazy larynx, a condition that generally resolves itself by the child’s first birthday. Although normally not serious, this condition can contribute to other health problems, including chest infections and in rare cases children will have significant life-threatening airway obstruction. Due to problems while feeding, children suffering from this condition may struggle to gain weight. Although there is no one specific gene related to developing a lazy larynx, it may be hereditary. Patrick was diagnosed with epilepsy, a condition that cannot be ruled out as having contributed to his death.
Sarah’s post-mortem showed signs of petechiae, or little haemorrhages, on her lungs, heart and thymus, and there was some suggestion that this could have been caused by Kathleen intentionally smothering her. However, I found a 2011 research paper13 that looked
at just this kind of trauma in 484 cases of deceased infants, divided by cause of death: 1) sudden infant death syndrome, 2) sepsis, 3) airway infections, 4) asphyxia, and 5) trauma. In this study, internal petechial bleedings were observed in every group, with a reduced frequency in cases of trauma. The paper concluded that detection of internal petechial bleedings at post-mortem can be a suspicious finding suggestive of possible asphyxia. However, because of the possible natural origin of these bleedings, the medico-legal investigation has to be as complete as possible and has to include histology as mandatory. As Sarah’s death was originally attributed to SIDS, a full, forensic post-mortem was not undertaken, and it is therefore impossible to rule out a natural cause for these findings. It is also important to note that these haemorrhages are not positive findings for intentional smothering – at post-mortem there are no findings that point to intentional smothering as the only cause of death. So it is not possible that the medical evidence could support this conclusion above all others. How then could the medics called by the Crown reach such a conclusion? Finally, Laura’s post-mortem was also inconclusive, and the forensic pathologist who conducted the investigation, Dr Cala, admitted that had it not been for the family history he would have concluded that Laura died of myocarditis.
It is important to note that, in this examination of the children’s causes of death, in every case there was a documented medical condition. It was the coincidence of the four deaths that led to suspicion. But coincidence does not equal guilt, although the jury appears to have thought it did.
ANOTHER ASPECT TO CONSIDER?
I’m really concerned with the diary entries Kathleen made, and not in the same way the police and jury were concerned. To me, each of the entries the Crown felt probative in terms of illustrating Kathleen’s guilt of intentionally harming her children could equally demonstrate two other possibilities: 1) Kathleen was simply a frightened mother; or 2) that Kathleen was suffering from post-natal depression or – more likely at this stage – post-natal psychosis. And it’s the second possibility that I find most compelling. Post-natal psychosis, which I outlined in Chapter 2 when looking at the scenario surrounding Azaria Chamberlain’s disappearance, affects around one in every 500 mothers. This serious condition can lead to women losing their grasp on reality. All of Kathleen’s symptoms can be explained by this diagnosis, including her mood swings, depression, the fearful and bizarre thoughts noted in her diary, her fears concerning her marriage, her personal insecurities, and her inappropriate responses to the babies as expressed in her diaries. The following quote gives an example:
26/06/1997:
Feeling secure, loved, successful and wanted by Craig has helped me. And to a degree, the fact that I don’t wish to die with no one really knowing I was here.
Looking back at Kathleen’s troubled history, it is possible to see that she may have been a candidate for post-natal problems, as they can be brought on or made worse by psychological factors (the loss of her babies) and a difficult childhood. At Kathleen’s trial in 2003, the court had heard the extent of her childhood trauma. In 1984, when Kathleen was around seventeen, she learnt that her father had murdered her mother, which was described as having a profound effect on her. Kathleen was assessed by three psychiatrists, one of whom, Dr Giuffrida, came to the conclusion after speaking to Kathleen, reading her diaries, and seeing the documentation from her early years, that something very disturbing happened to Kathleen at around eighteen months old. Dr Giuffrida noted that he thought Kathleen was neglected and subjected to emotional and physical abusive. He thought it likely that her father abused her mother and that Kathleen was exposed to that violence. Dr Giuffrida also thought Kathleen may have been victimised, possibly sexually, by her father. At three years old, Mrs Platt had stated that Kathleen was hyper-sexualised, a sign now recognised as potentially indicating the child has been sexually abused.
There seems to be clear evidence from her diaries that Kathleen was suffering psychologically, although she would probably be unaware of how seriously ill she was. Craig certainly didn’t know. This is not surprising, as our understanding of post-natal depression and psychosis was much less developed back in the early 2000s. Kathleen appears to have felt isolated, lacking friends and a support network. Numerous entries before Laura’s birth comment on how stressed Kathleen felt when she had children to care for previously, and how this time she planned to cope by asking for help:
01/01/1997:
I am going to call for help this time & not attempt to do everything myself any more.
We know that if post-natal psychosis is untreated, there is a risk to the life of both the mother and the baby if the symptoms are severe enough; however, with appropriate help, women suffering from this condition recover fully. Kathleen was never treated and it is one suggestion that Kathleen had been suffering from post-natal depression that developed into post-natal psychosis over time. It’s also recognised that post-natal depression, if not treated before the next child is born, can get worse. So the cycle of the four births, the post-natal depression or psychosis, and the four deaths would have been a terrible psychological strain on an already troubled woman.
Although Kathleen was almost an adult before she learnt the truth about her parents, it clearly affected her on some level, as one of her entries said: ‘Obviously I am my father’s daughter’. Perhaps this statement indicates why she felt she didn’t bond with her first three children, as evidenced by this diary entry, made shortly after Laura’s birth:
I’ve realised I actually love her & have bonded with her … Maternal instinct is what they call it. I now know I never had it with the others …
Again, anyone who has researched post-natal depression and psychosis would not be shocked by the feelings Kathleen expressed, as they are common with these disorders. Either way, as Kathleen was primarily the children’s main carer, it is not at all surprising that their loss would cause her feelings of guilt and depression. Kathleen had kept diaries nearly all her life, most of which she had discarded. But why keep these particular diaries? Some people thought she had simply overlooked them, but that seems extremely unlikely when she must have gone through the bedside drawers when she moved out. Considering the highly emotional nature of the content, it is hard to believe she simply ‘forgot’ about them. Most people keep diaries just for themselves and I believe that they were initially a source of outpouring for Kathleen, somewhere to express her deepest darkest thoughts. But I also think that she kept these specific diaries and left them behind because she wanted someone, probably Craig, to understand how she felt. There are a couple of entries that I think support my hypothesis, for example:
17/12/1997:
Tell you what – don’t think anyone could read this and find out all my secrets. I write like a five-year-old.
And this:
16/01/1998:
One of my problems is I’ve lost me again. I’m just Mrs Craig Folbigg, now I’m just Laura’s mother as well. Where’s Kath gone? A person in her own right, who needs to have writing lessons but probably better if I don’t then no one, not even me, will be able to read this when I’m gone.
I think the other, more emotional entries are aimed at telling Craig how she feels, but these two demonstrate that she is conscious that some day someone may read them. This applies especially to the quote from mid-January 1998, as we know that by August 1998 Kathleen and Craig’s relationship had deteriorated to the point where she was telling him Laura was the only thing keeping them together.
THE TRIAL
In April 2001, Kathleen Folbigg was charged on five counts: four of murder (Caleb, Patrick, Sarah and Laura) as well as one count of maliciously inflicting grievous bodily harm with intent, against Patrick, four months before his death. She was indicted to stand trial on all five counts in the Supreme Court of New South Wales in Darlinghurst, beginning in early 2003 and lasting for nine weeks. The process of prosecuting Kathleen Folbigg was presided over by Justice Graham Barr,14 with the usual
pre-trial discussion to determine what evidence would be heard by the jury. The Crown case was that Kathleen had intentionally suffocated or smothered each of the children.
Kathleen’s defence submitted a request that the counts relating to Caleb’s, Sarah’s and Laura’s alleged murders be heard individually and separately to the counts relating to Patrick’s death. The Crown had insisted that Kathleen Folbigg should be tried in one indictment and at one trial, as the prosecution’s case relied on the evidence of one charge to support the additional charges. Therefore they objected to the defence’s request, saying that they wanted all of the charges heard together. Although the prosecution accepted at the trial that the evidence on each count, in isolation, would not justify finding Kathleen guilty, the Crown prosecutor asserted that to look at each death separately would be misleading. Kathleen’s defence application was dismissed on 29 November 2002; she sought leave to appeal that decision but that request was denied.
A significant part of the prosecution’s case was Kathleen’s diaries, as well as evidence from Craig, as these were considered relevant to her attitude to and relationship with her children. The Crown also entered medical evidence from a number of experts, who basically all said that none of the Folbigg children’s deaths should have been classified as SIDS, because of medical findings or the child’s age at death being outside the 0–6 months range, which Dr Ophoven, a forensic pathologist for the Crown, asserted was the range accepted by most forensic pathologists.15 According to Dr Ophoven, an infant’s sudden and unexpected death at an age over six months would be considered atypical, and by one year that cause of death would be excluded entirely.
Of all the comments summarised in the revised case documents16 there is a remark by Dr Alan Cala, another forensic pathologist, I find very concerning. Dr Cala conducted the post-mortem examination on Laura Folbigg, after which he made the following statement:
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