Five Women Serial Killer Profiles (13 page)

Kathleen was handcuffed and removed from the court to the Mulawa Women’s Detention center in Silverwater, Sydney. Here, for her own security, she was confined in isolation for fear that the other prisoners would critically injure her or kill her. “Rock spiders” (Australian prison slang for child molesters and child killers) in prison are intensely disliked and live a tenuous life within the prison walls.

On
the 24th of October in 2003 Kathleen was returned to court, and Justice Graham Barr sentenced her to forty years in prison with a non-parole time of thirty years.

Outside
of the court after the sentencing, Craig Folbigg was interviewed by journalists; he broke down in tears saying:

“
My humble thanks go to 12 people whom I have never formally met, who today share the honor of having helped set four beautiful souls free. Free to rest in peace finally.”

Mrs.
Deirdre Marlborough, her adoptive mother, sent Kathleen all her childhood photographs including a scathing letter containing the line:

"Kathleen Megan, I WILL NEVER FORGIVE YOU."

Kathleen’s lawyers also made a brief statement saying they would begin work on Kathleen’s appeal at the earliest possible opportunity.

The Media went to town.
Kath
leen
Fo
lb
igg
became the media icon of monstrous mother
hood.

''Incapable of love, compelled to kill: the diaries of a tortured mother.''

“Sometimes
crib death runs in families. With Kathleen Folbigg, so does murder. Her father, hoist driver Thomas John Britton, stabbed her mother, Kathleen Mary Donavan.”

On Friday November 26th, 2004 David Jackson QC, Kathleen’s lawyer, argued against her conviction stating that the four cases of the children’s deaths should not have been heard collectively, that the jury verdicts had not been supported by the evidence
, that medical experts should not have told the jury they were unaware of any previous cases of three or more infants dying of SIDS in one family, and that the judge had given incorrect instructions to the jury. He also brought up Craig’s Folbigg’s hereditary Obstructive Sleep Apnea (OSA) which is caused by the soft palette or tongue obstructing air passage ways during sleep. Having a relative with OSA increases the odds that another family member may also have OSA. Obstructive sleep apnea has been linked with some instances of SIDS. This was glossed over in the appeal as if irrelevant.

David Jackson also brought up the British case of Angela Cannings. Angela Cannings was given life imprisonment on April 16th, 2002 for the murder of seven-week-old Jason Canning in 1991 and eighteen-week-old Matthew Canning in 1999. As Kathleen had, Angela Canning’s, claimed her sons died from SIDS. The British Court of Criminal Appeal overturned her conviction on December 10th, 2003
, and she was free to return home. Angela Cannings' appeal was based on a number of factors but mainly that the statistical evidence and expert medical testimony of Professor Sir Roy Meadow was deceptive and misleading. In Angela Cannings’ trial, the same statistical evidence as was used in Kathleen’s trial was used (i.e. that the odds of SIDS occurring in the same family was an astounding one in one trillion.) Following the squashing of Angela Cannings’ convictions, Roy Meadow’s was found guilty of "serious professional misconduct" by the British General Medical Council for his misleading “expert witness” statistics.

Similar convictions in the British courts that had relied on ‘Meadow’s Law
,’ in particular Sally Clark’s and Trupti Patel’s convictions, both who were mothers accused by the prosecution of suffocating their babies, were overturned on appeal.

Sally Clark, like Kathleen
, was portrayed as a coldhearted and selfish woman, unequipped to handle the demands of motherhood. The prosecution said Sally Clark was an alcoholic, selfish, career-obsessed, depressive, grasping woman who liked pretty clothes and who first abused and then murdered her children because they ruined her figure and stood in the way of her lucrative future.

A further 258 similar cases in Britain were urgently ordered to be re-examined.

The three judges of the New South Wales Supreme Court of appeal: Justices Brian Sully, Peter Hidden, and John Dunford rejected all the defense arguments. Justice Brian Sully held that Kathleen’s infants dying of natural causes were a “
debate point”
and not a reasonable basis for doubt. The court reduced Kathleen’s sentence to thirty years' imprisonment with a non-parole period of twenty-five years.

On December 21, 2007 Kathleen’s lawyers, headed by Bret Walker SC, sought for her conviction to be squashed citing irregular conduct by jury members during her 2003 trial. The information regarding the jury’s conduct was contained in a report by sheriff officers.

One juror, despite the judge’s instructions not to do so, had
researched
Kathleen’s background on the internet and found out that her father had
murdered
her mother
when Kathleen was a small child. The juror then passed on the information to the other jurors during the course of the trial.

In the original trial, this information
was not disclosed to the jury as it was deemed
prejudicial
by the judge.

Mr. Walker said that the conduct by the juror had been entirely inappropriate and could have led the jury to conclude "her father is a murderer
; therefore, she is a murderer." Mr. Walker claimed the information was "very prejudicial" and was likely to have resulted in a miscarriage of justice.

In addition
, Mr. Walker added that one of the jurors had undertaken amateur sleuthing about the length of time a dead baby’s body could remain warm after death. They had obtained this information from the internet and from nursing friends of one of the jurors. Bret Walker told the court,

"This is precisely the kind of sleuthing the jury was warned against by the judge." He continued
. "(Such directions) are not outlined just for the sake of it; they are meant to be taken to heart."

However, the appeal court judges Justice Peter McClelland with Justices Carolyn Simpson and Virginia Bell concurred that while the irregularities should not have occurred they were
“satisfied that they were not material and did not give rise to a miscarriage of justice.''

In the U
nited Kingdom on the 9
th
of December in 2011, the
Lord Chief Justice warned juries over internet research.
He warned that the integrity of court trials may be damaged by modern technology and the internet. He said he was particularly concerned at the ease jurors had to research cases ignoring court orders not to do so. During 2011, judges in the United Kingdom had, in three trials, squashed convictions and had ordered retrials in two cases because jurors had taken to the internet, ignoring guide lines from judges in their trials to return verdicts based solely on the evidence heard in court.

In the criminal cases yearly report of the Court of Appeal's, Lord Judge said:

"I remain concerned at the ease with which a member of the jury can, by disobeying the judge's instructions, discover material which purports to contain accurate information relevant to an individual case or an individual
.”

In May of 2011, Emma Cunliffe, an assistant professor of law at the University of British Columbia in Canada, spent six years researching Kathleen Folbigg’s case. She believes that Kathleen was wrongly convicted based on unreliable evidence from medical experts. She claims in her book
Murder, Medicine, & Motherhood
that in the absence of medical evidence and a confession, circumstantial evidence from Kathleen’s diaries and her husband Craig were not enough to convict her. She argues that medical experts in the court trial neglected to give evidence that fully showed the then current uncertainty in the scientific and medical communities about repeated unexplained deaths of infants in a single family. Ms. Cunliffe says the experts' evidence was misleading to the extent

''It was unreliable under evidentiary rules
. They gave a very incomplete account of the medical research that then existed.''

Emma Cunliffe, when she first began looking at
Kathleen Folbigg’s case, said in an interview that she believed her to be guilty. Now she is so convinced of Kathleen’s wrongful conviction, she is calling on the New South Wales to introduce the same ''last resort'' mechanism that was used in the Northern Territory to squash Lindy Chamberlain's murder conviction. Emma Cunliffe says the medical uncertainty that existed at the time of Kathleen’s trial and the appeals had since moved to a consensus view: that repeated unexplained infant deaths in a single family can and do occur. She strongly believes that Kathleen’s conviction is unsound and should be reviewed. Dr Cunliffe's opinions have won support from eminent forensic pathologists who share her belief that a review of Kathleen Folbigg's conviction should be examined. Professor John Hilton, who was a prosecution witness in Kathleen’s trial, believes that Dr Cunliffe’s book is a

“A valuable contribution to this whole matter and is deserving of notice by the relevant authorities.''

Professor Stephen Cordner, the director of the Victorian Institute of Forensic Medicine,
says of Dr. Cunliffe’s book,

''I think she's written a very even-handed book based on substantial research and persuasively concludes … that Kathleen Folbigg has been wrongly convicted.''

Emma
Cunliffe is so convinced of Kathleen’s wrongful conviction that she is talking to barristers and law firms, searching for experts prepared to work pro-bono to fight for Kathleen’s case to be reopened.

Increasing concerns are being raised more and more frequently at unreliable expert evidence leading to contaminated criminal trials. Such evidence can result in innocent people being sent to jail. At the very least, such evidence can tilt trials unfairly. Two recent examples in Australia are the Supreme Court appeals of Gordon Wood, found guilty of murdering Caroline Byrne, his girlfriend and Jeffrey Gilham, found guilty of the murder of his parents.

In Mr. Wood’s case, appeal judges in March of 2012 demolished the prosecution’s case in which Mr Wood had been accused of hurling his girlfriend, model Caroline Byrne, to her death at the notorious suicide spot The Gap in Sydney. The appeal judge’s savage criticism of Mr Tedeschi, the prosecutor in Kathleen’s case, accused him of failing his most basic obligations - to put the case fairly to the jury. The appeal court judges said that Mr Tedeschi had tried to bolster the Crown case by resorting to fiction, impermissible reasoning, and innuendo. Defence lawyers are calling for a review of all successful prosecutions involving prosecutor Mark Tedeschi after the criticism of his handling of the Gordon Wood case.

Is Kathleen Folbigg Australia’s worst serial killer of children
or is she an innocent mother torn between expert opinions, the uncertainty of SIDS, and a criminal justice system that may have incorrectly sent her to prison for a lifetime for crimes she never committed?

Sadly, p
eople are wrongfully convicted all the time. In Kathleen’s case, I firmly believe there is reasonable doubt. You don’t throw away the key when there’s reasonable doubt, do you
?
You make sure an innocent woman isn’t behind bars, don’t you
?
I don’t believe enough evidence existed or was presented to prove her guilty beyond a reasonable doubt. I believe her conviction was a dangerous conviction and should be reviewed.

My understanding of Kathleen’s present situation is that Kathleen’s appeal process has been exhausted, and the only way of having the case re-examined is if the Attorney-General of N
ew South Wales recommends it. I believe that would take either public support or new compelling evidence for such a re-examination.

Hop
efully, one day I can include Kathleen in a book of wrongful convictions. Perhaps, if she had have been convicted in the United Kingdom, she would now be a free woman!

“Better that ten guilty persons escape than that one innocent suffer”
,
expressed by the English jurist William Blackstone in his Commentaries on the Laws of England, published in the 1760s.

Extract of a letter from Kathleen Folbigg to her foster sister Lea Bown.

“
Try to imagine your life being spread out, ripped to pieces, examined, opinions cast, character assassinated, your every word, action, thought doubted, and you’re told you don’t know yourself. Add to that, because of all of the above, becoming the most HATED woman alive…You can’t. I now live with that every day. I endure all of this knowing that vindication will one day be mine. This is the last time I’ll state – I did not kill my children.”