CANBERRA, Australia – On Wednesday, an Australian state attorney general refused to pardon a mother convicted nearly 20 years ago of suffocating her four children and instead ordered a new inquiry into whether a medical clearance would be required. It can be for tragedies.
The investigation will be the second in three years to find scientific evidence that all four of Kathleen Folbigg’s children may have died of natural causes.
A growing number of scientists say Folbigg, now 54, could fall victim to a tragic miscarriage of justice.
The schism between legal and scientific opinion had grown with advances in genetic research since 2003, when Folbigg was convicted of three counts of murder and one of manslaughter.
A petition to the New South Wales governor in March last year calling for a pardon of Folbigg “based on significant positive evidence of natural causes of death” was signed by 90 scientists, physicians, and related professionals, including two Nobel laureates.
Attorney General Mark Speakman, who advises the governor on such petitions, said on Wednesday the case requires a transparent response rather than a pardon.
“I can well understand why members of the public are shaking their heads and rolling their eyes in disbelief at the number of chances Ms. Folbigg has had to clear her name, and (ask) why does the justice system allow anyone to be convicted of… ..several murders get another chance,” Speakman said.
“There is certainly enough question or doubt that this new scientific evidence warrants some kind of intervention,” Speakman added.
Folbigg was sentenced to 30 years in prison and will be eligible for parole in 2028. None of her children survived a second birthday.
Her first child, Caleb, was born in 1989 and died 19 days later in what was considered the lesser crime of manslaughter by a court. Her second child, Patrick, was 8 months old when he died in 1991. Two years later, Sarah died at 10 months. In 1999, Folbigg’s fourth child, Laura, died at 19 months.
An autopsy found that Laura had myocarditis – an inflammation of the heart muscle that can be fatal. Patrick suffered from epilepsy, and his death was attributed to an airway obstruction resulting from a seizure and infection. The other two deaths were recorded as SIDS.
The criminal case against Folbigg was circumstantial, based on interpretations of vague notes she made in diaries, which her estranged husband read and reported to the police.
In addition to the new scientific evidence, Folbigg’s lawyer Rhanee Rego said she expects the latest research to consider reports from psychiatrists, psychologists, and linguists who say there were no murder confessions in the diaries.
“We are confident that the overwhelming evidence will finally free Kathleen Folbigg and prove her innocence,” Rego said.
Speakman said he turned down an invitation from the Australian Academy of Science, an independent organization that represents scientists, for a statement of the evidence against Folbiggs’s guilt.
Academy director Anna-Maria Arabia said she respects the government’s decision to launch a second investigation, despite many scientists agreeing there is “overwhelming evidence to justify Ms. Folbigg’s immediate release”.
In 2015, Folbigg’s lawyers successfully filed for an inquest into her convictions based on concerns raised by several forensic pathologists.
Retired judge Reginald Blanch concluded in 2019 that Folbigg was “untruthful” and “unbelievable” in attempts to cover up her guilt.
Blanch also heard new evidence from Carola Vinuesa, co-director of the Australian National University’s Center for Personalized Immunology, that both girls and their mothers had a recently discovered genetic mutation linked to abnormal heartbeats sudden death in children.
In 2020, Oxford University Press’s cardiology journal Europace published findings from 27 scientists from Australia, the United States, Canada, France, Denmark, and Italy describing the genetic mutation in the Folbigg girls. The team also reported that the boys carried different and rare variants of a gene that, when defective, causes mice to die young from seizures.
Retired New South Wales Chief Justice Tom Bathurst will lead the new investigation. He could potentially recommend that Folbigg be pardoned, or her convictions quashed, Speakman said.
“Whatever the outcome of this investigation, it is an extraordinary tragedy,” Speakman said.