Prosecutors acknowledged to a government inquiry Wednesday that new scientific and genetic evidence left reasonable doubt that an Australian mother deliberately killed her four children 20 years after she was convicted of doing so.
A retired judge is hearing final submissions over whether Kathleen Folbigg, now 55, should be pardoned for murder and manslaughter convictions by a jury in 2003. The children died separately over a decade, at between 19 days and 19 months old, and their mother insisted their deaths were from natural causes.
New South Wales state Director of Public Prosecutions Sally Dowling made a written submission to the inquiry saying that was possible.
Dowling wrote that “on the evidence now available, it is open to the inquiry to conclude there is reasonable doubt as to Ms. Folbigg’s guilt.”
The lawyer appointed to assist former Justice Tom Bathurst in the inquiry, Sophie Callan, said she had also concluded that on the basis of the scientific and medical evidence heard since November that Folbigg was not guilty beyond reasonable doubt of three counts of murder and one of manslaughter.
“On the whole of the body of evidence before this inquiry, there is a reasonable doubt as to Ms. Folbigg’s guilt,” Callan said.
The inquiry has been adjourned until Thursday. If Bathurst finds reasonable doubt of Folbigg’s guilt, he could recommend that the state governor pardon her and could report to the Court of Criminal Appeals to consider quashing her convictions.
The previous New South Wales government ordered Bathurst’s inquiry a year ago when it rejected Folbigg’s petition for a pardon.
That petition said it was “based on significant positive evidence of natural causes of death” and signed by 90 scientists, medical practitioners and related professionals.
Folbigg is serving a 30-year prison sentence which expires in 2033. She will become eligible for parole in 2028.
Her first child, Caleb, was born in 1989 and died 19 days later in what a jury determined to be the lesser crime of manslaughter. 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.
Evidence discovered in 2018 that both daughters carried a rare CALM2 genetic variant was one of the reasons that the inquiry was called.
Callan said expert evidence in the fields of cardiology and genetics indicated that the CALM2-G114R genetic variant “is a reasonably possible cause” of the daughters’ sudden deaths.
Myocarditis, an inflammation of the heart, was also a “reasonably possible cause” of Laura’s death, Callan said.
For Patrick, Callan said there was “persuasive expert evidence that as a matter of reasonable possibility, an underlying neurogenetic disorder” caused his sudden death.
The scientific evidence created doubt that Folbigg killed the three children and undermined the argument made in Caleb’s case that four child deaths were an improbable coincidence, Callan said.
Prosecutors had told the jury at her trial that the similarities among the deaths made coincidence an unlikely explanation.
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Folbigg was the only one at home or awake when the young children died. She said she discovered three of the deaths during trips to the bathroom and one while checking on a child’s wellbeing.
Prosecutors also had told the jury that Folbigg’s diaries contained admissions of guilt.
Her former husband, Craig Folbigg, said in submissions to the inquiry that the implausibility that four children in one family would die of natural causes before the age of 2 was compelling grounds to continue treating the diary entries as admissions of his former wife’s guilt.
But Callan said psychologists and psychiatrists gave evidence that it would be “unreliable to interpret the entries in this way.”
Folbigg had been suffering a major depressive disorder and “maternal grief” when she made the entries, Callan said.
“This casts Ms. Folbigg’s expressions of guilt and responsibility for the deaths of her children in her diary entries in a very different light,” Callan said.
Folbigg made 545 pages of closing submissions that urged Bathurst to find reasonable doubt of guilt and a “strong probability of innocence,” Callan said.
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