Mothers Who Murder

by Xanthe Mallett

  Non-accidental asphyxia in the form of deliberate smothering must be considered as a possible cause of death for Laura Folbigg, and possible cause of death for the other Folbigg children as well. I remain very suspicious that all four Folbigg children may have died as a result of deliberate smothering. The medical evidence, however, does not allow me to take this any higher than a suspicion of deliberate smothering.

  What I find most confronting about his statement is that in reality the medical evidence is inconclusive. Each child had certainly suffered medical problems in their lives prior to their deaths. This remark by Dr Cala appears to be based entirely in conjecture, and the potential influence of the diaries on his assessment cannot be overlooked. This comment by Dr Ophoven is, in my opinion, just as worrying:

  It is well recognized that SIDS [Sudden Infant Death Syndrome] process is not a hereditary problem …

  As clearly stated in a 2011 paper,17 genetic risk factors have been shown to play a role in sudden unexpected infant death – either as a cause of death or as a predisposing factor for SIDS. It is most likely that a genetic predisposition to sudden infant death, comprising a polygenic inheritance pattern leading to sudden death, combines with other developmental risk factors, in addition to environmental risk factors – such as an infant suffering from the common cold or a baby sleeping on its stomach – to increase the likelihood a child will die of SIDS. In light of this, I find Dr Ophoven’s statement both concerning and confusing, as SIDS research has, for some time, indicated a number of potential causal factors. Also, since the early 2000s and the debacle over Sally Clark’s wrongful imprisonment, the forensic community has been well aware of the fallacy that there is no genetic predisposition at play. Apparently the Crown’s experts were not aware of this in 2003, even though Kathleen’s defence applied, unsuccessfully, to have the trial stayed until after Clark’s appeal was concluded, as they were aware that SIDS as a complex, multifaceted cause of unexplained death in infants was just beginning to be acknowledged. Although Justice Barr prevented the flawed statistical evidence that was entered at Folbigg’s pre-trial hearing from going forward to be heard by the jury, it seems that the Crown experts may have been working from this perspective.

  The Crown’s case was presented by Prosecutor Mark Tedeschi, who painted Kathleen as a woman preoccupied with her looks, and more interested in going to the gym and having nights out than caring for her own children. Focusing on largely the same evidence as that given at the bail hearing, Tedeschi claimed that Kathleen had murdered her four children over a ten-year period by smothering them. The motive – Kathleen’s low stress threshold. The prosecutor criticised Professor Hilton, the forensic pathologist who had performed Sarah’s post-mortem, saying that her death should not have been attributed to SIDS as he should have considered the family history. Tedeschi also told the jury that the chance of Laura dying of SIDS was extremely low as she was extensively monitored and was out of the ‘danger period’ – that is, the magic cut-off at six months of age.

  The defence was led by Peter Zahra, who refuted the claim that Kathleen had murdered the children, reiterating the statement made during the bail hearing that the children had all been ill. Professor Roger Byard, a specialist forensic pathologist and consultant paediatric forensic pathologist and the only expert called by the defence, was called to give evidence on cot deaths. Byard told the court that it was possible the children died from suffocation as a complication of other medical problems, so each death could be explained in isolation as natural. Regardless of which side called him, in my opinion Professor Byard presented the most balanced summary. Professor Byard listed the causes of death, in his opinion, as:

  Caleb: Undetermined, with laryngomalacia.

  Patrick: Undetermined, cannot exclude epilepsy.

  Sarah: Undetermined, with narrowing of the upper airway.

  Laura: Undetermined, cannot exclude myocarditis.

  In addition, Professor Byard went on to say:

  The unusual background of this family with many issues of concern does not negate the fact that potentially significant organic illness was present in these children … unfortunately, this issue cannot be clarified from the autopsy records. Given the information that I have been provided with I simply cannot see how the significance of these conditions can be downplayed as potential causes of death, no matter how worrying the circumstances are.

  On 21 May 2003, the jury found Kathleen guilty on four of the five counts; on the fifth count – that of murdering Caleb – she was found guilty of manslaughter.

  THE APPEALS

  Kathleen Folbigg appealed against her conviction and sentence. The first appeal against her conviction was made on the grounds that the jury’s verdicts were unreasonable.18 This appeal was decided on 17 February 200519 and was unsuccessful. However, her appeal against her sentence did have a positive outcome in that it was reduced from thirty years non-parole to twenty-five years. Folbigg’s defence sought special leave to appeal the conviction decision, a request denied by the High Court of Australia. Folbigg remained convicted of multiple murders.

  Even though the appeal was dismissed, just one day later, a solicitor employed by the Legal Aid Commission (who were tasked with representing Folbigg during the appeal process), raised concerns about an irregularity in the conduct of one or more members of the jury at Kathleen’s original trial in 2003. The solicitor had been told by a jury member that one member of the jury had done some of their own investigation on the Internet during the course of the trial, researching Kathleen’s family and personal history from pre-trial reports, and another had talked to a friend who was a nurse, asking about the time it would take a child’s body to lose heat after death. In March 2005 this potential problem was raised with the Director of Public Prosecutions, who then referred the situation to the Office of the Sheriff who wrote to the court asking whether the court thought the proceedings should continue. The court then directed the Sheriff to investigate the irregularities and report back to the Supreme Court. The Sheriff’s report stated that there were two examples of ‘potential’ irregularity when looking at the jury’s conduct. The Supreme Court then told Folbigg’s solicitor to inform their client of the potential irregularities.

  In July 2006 Folbigg’s solicitor made an application to reopen the appeal; this was only possible as the court registry had not entered the results of the first appeal into the court file.20 Kathleen’s appeal was allowed to continue on the following grounds: 1) the trial miscarried as a juror or jurors had obtained information on the Internet, revealing that Kathleen’s father had murdered her mother; 2) the trial miscarried as a result of the fact that a juror or jurors had researched, away from the trial, the length of time an infant’s body would remain warm to the touch after death. The information obtained by the jurors, and fed to the rest of the jury, was considered prejudicial. Allowing Kathleen’s appeal to proceed under these grounds is a clear-cut example of the mass media affecting the criminal justice system. However, this further appeal was subsequently dismissed by the New South Wales Court of Criminal Appeal, on the grounds that ‘the irregularities should not have occurred … I am satisfied that they were not material and did not give rise to a miscarriage of justice’.21 Following the failure of this appeal, Kathleen remains convicted and in prison. The only legal avenue left to her is via the exceptional categories available in the relevant Criminal Appeal Act legislation.

  THE MEDIA’S INFLUENCE

  This discussion of the influence of the media is very relevant in Kathleen Folbigg’s case, as there is indisputable evidence that the jury was influenced by information made publicly and freely available by the media. In fact, Kathleen’s appeal was based on that fact.

  In a spate of newspaper articles in 2013, which marked the ten-year anniversary of Kathleen going to prison, doubts of her guilt were raised. For example, one entitled ‘Did she do it? Why Kathleen Folbigg may not have killed her four babies’22 states that Folbigg has few supporters, bu
t a number of academics have started asking questions. The article quotes the forensic pathologist who did Laura’s post-mortem, although it is unclear where the quote comes from. Regardless, the article says ‘Cala later wrote that had he examined Laura “without the knowledge I had at the time of previous infant deaths in the family, I might give the cause of death as myocarditis”. But in this case, he couldn’t go past those other three deaths, so he put the cause of death as “undetermined”, thus clearing the way for a murder investigation.’

  Another article, this one titled ‘Is Kathleen Folbigg an innocent victim of SIDS?’,23 asks whether Kathleen Folbigg is Australia’s worst child serial killer, as depicted by much of the Sydney media, or if she could be an innocent mother wrongfully imprisoned for crimes she had not committed, as some are beginning to suspect.

  COMPARATIVE CASES

  Kathleen’s case has a number of similarities to the British cases, including that of Sally Clark originally tried in 1999, Angela Cannings in 2002, and Trupti Patel, tried but acquitted in 2003. All were UK mothers accused of, and in the first two cases convicted of, the murder of two or more babies. Clark was a 35-year-old solicitor whose 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. Clark was convicted of murdering her two sons by a majority of 10 to 2, and the convictions only quashed following a second appeal in 2003. Clark’s family stood by her throughout, all saying she was an excellent mother. The prosecuting counsel offered background evidence from the (then) eminent British paediatrician, Professor Sir Roy Meadow, as to the likelihood of the babies both dying of cot death. There can be little doubt that his testimony played a part in the charging of Clark; a case that has been described as one of the greatest miscarriages of justice in modern British legal history.

  Trupti Patel was yet another British mother and victim of Meadow’s law. Trupti and her husband lost a son (their second child) unexpectedly at two months of age in 1997; eighteen months later their next son died aged fifteen days. The third unexpected death happened in 2001, when the couple lost a daughter, aged twenty-one days. The post-mortems of the two boys failed to provide causes of death, but the daughter was found to have four broken ribs. A police investigation was initiated, and Trupti Patel was arrested in 2002 and charged with the murder of all three children. This case became famous, well infamous, as one of the cases in which a mother was accused of multiple filicide,24 and importantly Sir Roy Meadow gave evidence. Patel was luckier, in some ways, than the other earlier victims of Meadow’s law, in that by the time her case came to trial, Meadow’s claims that second cot deaths in the same family were highly unlikely and most often suspicious had been largely discredited. Another fact that helped Patel was that Clark’s conviction had been overturned. As a result, it was determined that there was reasonable doubt as to Patel’s guilt, and she was acquitted.

  One of these cases reviewed following Clark’s release and Patel’s acquittal was that of Angela Cannings, a mother accused and convicted in 2002 for the murder of her son, who died at eighteen weeks in 1991. Cannings had lost one child, a thirteen-week-old daughter to SIDS in 1989, an incident that had passed without suspicion. Regardless, Cannings’ conviction, for which she received a life term, was based on prosecution claims that she had smothered her two children. The prosecution case was solely based on Cannings’ ‘suspicious behaviour’, which included phoning her husband rather than the emergency services when she discovered one of the cot deaths, and Meadow’s evidence that she had murdered both children. Cannings had already lost one appeal, but following the turmoil caused by the Clark and Patel acquittals, her case was fast tracked through the appellate courts. Cannings’ conviction was overturned by the Court of Appeal in December 2003, on the grounds that it was unsafe.

  As we saw in those cases, the children were initially believed to have died of SIDS, and it was the coincidence of multiple deaths that led to the initiation of a police investigation. Professor Meadow failed in his duty by not limiting himself to evidence associated with medical facts, but rather allowed himself to stray into territory where he did not have the requisite understanding. In the end Meadow gave factually incorrect and misleading evidence that helped convince more than one jury that an innocent woman had murdered her children.

  I see a clear parallel with some of the medical submissions in Kathleen Folbigg’s case. Here medical practitioners entered evidence that was not based on medical expertise; instead, they commented on the likelihood of multiple babies from one family dying of SIDS. Dr Susan Beal, a paediatrician for the Crown, went further:

  As far as I am aware there has never been three or more deaths from SIDS in the one family anywhere in the world.

  I would question the veracity of this statement; simply because these experts were unaware of any such incidents does not mean they have not happened. In fact, it seems an odd comment. Even if I had not previously been aware of the cause and prevalence of SIDS, purely based on logic I could have guaranteed that somewhere in the world someone has been unlucky enough to lose three or more children to SIDS. It would not have taken these experts long to do a quick check of the medical literature to find this statement is patently untrue; and it is dangerously misleading when given in evidence by an expert in a criminal trial.

  I do not claim to be an expert in SIDS, but again the British cases have some relevant information. During Trupti Patel’s trial a geneticist for the defence stated that multiple SIDS deaths in one family could be caused by an undiagnosed genetic defect. In Cannings’ case, the court heard evidence that there was a history of SIDS in the accused’s family, as Cannings’ paternal great-grandmother had lost a child to SIDS, and her paternal grandmother had lost two children to sudden infant death – indicating again that genetic inheritance was the most likely cause of the children’s deaths. This information was available to Kathleen’s defence at the time of the trial in 2003. Cannings’ case was actually mentioned by Kathleen’s defence counsel, but the importance was lost on the Australian audience watching this case unfold.

  The ghost of Meadow raised its head again in relation to statistical analysis entered in Folbigg’s trial. Meadow had stated during the infamous British trial of Sally Clark that there was a one in 73 million likelihood that the two children died of natural causes. In Kathleen Folbigg’s case the same logic was applied and the numbers were even higher because a fourth child had died. It’s part of experts’ duty to the court to remain up to date with their knowledge. I wonder what effect such huge numbers, achieved using Meadow’s flawed statistical formula, had on Ophoven’s evidence at trial, as this expert seemed to believe it is virtually impossible that the children died of natural causes. I also wonder why the likelihood of a mother murdering her four children was not entered in defence. All of these points came out at Clark’s appeal, and were available to the experts in the Folbigg case, as Clark was freed in January 2003, two months before the Folbigg trial began.

  CASE CLOSED

  Kathleen Folbigg remains in prison, and in reality is destined to stay there unless someone does something. The nature of her conviction as a child-murderer has meant that other prisoners have made her a target; she has to be confined to protective custody and is isolated to her cell for twenty-three hours a day. As Kathleen has, in my opinion, suffered from a prolonged and serious psychological condition in the form of post-natal stress (at best) or psychosis (at worst), if she were ever released I think she would find it hard to recover from the effects of her conviction and imprisonment. Regardless, having reviewed her case, I have some very serious concerns regarding the reliability of her conviction.

  I found the medical evidence in this case unconvincing, because it was not possible to prove medically that the children were smothered, as there were no positive findings at post-mortem for intentional suffocation. What the experts really said
was that the physical evidence couldn’t rule out intentional smothering. However, we shouldn’t forget that the medical findings couldn’t rule out a lot of other things either. It was the coincidence of the multiple deaths in one family that caused alarm.

  I am also especially concerned that the experts for the Crown appeared to step outside the bounds of their medical opinion, having reached their conclusions after being supplied with Kathleen’s diaries and other statements. I wonder if they were influenced by the diary entries, and let their determination that Kathleen Folbigg was guilty taint the objectivity of their reports.

  I would argue that the experts should have prepared their reports in isolation from each other, and certainly without reference to the circumstantial aspects of the case that did not directly inform their report. The final and significant concern I have relates to the comment by Dr Ophoven, who stated that SIDS has no hereditary basis. I believe, taken together, the medical evidence is at best inconclusive, and the case against Kathleen remains purely circumstantial, based largely on coincidence.

  I also disagree with the prosecutor’s criticism of Professor Hilton, the forensic pathologist who performed Sarah’s post-mortem. Hilton should absolutely not have taken the family history into account when undertaking his analysis, and if he had considered it after the post-mortem but before writing his report, I would have hoped that he would have considered both potential meanings of the family history – the prosecutor’s assertion that it meant Kathleen had murdered her children, and the alternative that Kathleen was predisposed to losing children to SIDS.

  So, for me, as with Lindy Chamberlain, the ‘how + why = who’ just doesn’t stack up, at least not to the level of beyond reasonable doubt, as I certainly have my doubts that Kathleen’s guilt was proven to the required legal standard. The ‘how’ was the smothering. When we look at each death in isolation, there is no medical evidence that could not be explained by other medical conditions. The motive presented by the prosecution is problematic for me – low stress threshold. However, although I don’t agree with the Crown’s motive, the ‘why’ is not quite as clear-cut, because I do think that Kathleen was suffering from a severe psychological post-natal disorder, either depression or psychosis. That being said, in no way does that indicate she actually harmed her children, but it does help explain the diary entries. I would be interested in a psychiatrist’s opinion on the stress brought on by killing four of your own children. Is that something that Kathleen could have coped with psychologically? Could anyone? And I also wonder why, if she had had any intention of hurting Sarah, her fourth child, on 28 August, two days before Sarah’s death, Kathleen moved her sleeping cot into the main bedroom. If we accept the Crown case that Kathleen’s intent was to smother Sarah, this action, if anything, would have made it harder for her to do this, with Craig so close by. To me, these little things just don’t make sense, as this seems to be the action of a woman wanting to keep a close eye on her child, not distance herself from it.