Mothers Who Murder (7 page)

Laura’s mild sleep apnoea did not present any significant problems until she was nineteen months old, when she caught a cold. At around 7 am on the day of her death, 1 March 1999, Kathleen had become angry because Laura was crying. Craig was about to leave for work and the couple had an argument. Later that morning, Kathleen took Laura to see Craig at work, leaving him at 11 am. Just over an hour later, at 12.05 pm, Kathleen called 000 and reported that Laura had stopped breathing. Two ambulance crews arrived to find Kathleen administering CPR on Laura on the breakfast bar. The medics examined Laura and found she was not breathing and was blue; on initial examination her heart was beating, but only very slowly, before it stopped beating completely. Laura was taken to hospital, but was pronounced dead at 12.45 pm.

The post-mortem, performed by Dr Alan Cala at the central mortuary in Sydney, showed that Laura had clear fluid around her nostrils and some inflammatory changes in her heart consistent with a mild infection, probably viral. Laura had petechial haemorrhages on her thymus
gland, as well as haemorrhages on her lungs restricted to a particular main region. Her lungs had also collapsed. Dr Cala was unable to determine the cause of death, but ruled out SIDS. The coroner recorded Laura’s death as ‘undetermined’ and ordered a police investigation. Craig was distraught following Laura’s death and he and Kathleen separated – the stress of losing four children proving too much for this young family.

THE INVESTIGATION AND THE EVIDENCE

Quite correctly, when Detective Sergeant Bernard Ryan was assigned to the Folbigg case, he took nothing for granted. He did not presume this was another case of SIDS, but instead kept an open mind and considered all possibilities. However, his suspicions were raised when he discovered that Laura was the fourth child the Folbiggs had lost in a similar manner.

As a result of the couple’s separation, Kathleen had moved out of the family home, and it was while Craig was tidying up her remaining possessions that the case took an unexpected and – superficially – sinister turn. In a bedside drawer Craig found diaries, written by Kathleen, the contents of which shocked him as they appeared to indicate that Kathleen hurt the children intentionally. The Crown relied heavily on these diaries throughout the initial prosecution, particularly those entries made following Sarah’s death, when Kathleen was thinking of having another child, as well as those from the period just after Laura’s birth. The prosecution felt they were of significant probative value, meaning they helped prove the Crown’s case that Kathleen had intentionally smothered all four of her children. The prosecution considered the diaries
so important because – as they said to the jury – some entries were virtual admissions by Kathleen that she was responsible for the deaths of Caleb, Patrick and Sarah. Of particular note was an entry made on 3 June 1990, the day Patrick was born and fifteen months after Caleb’s death:

The words obviously show a woman of mixed emotions. She admits that she is frightened she may not cope with another baby. But the question I asked when reading these entries is whether these words were clearly those of a woman who has already murdered one child.

Kathleen wrote about huge mood swings and her emotional problems dealing with the transition from being pregnant to having a baby. Her diaries also detailed marriage problems – her fears that Craig would leave her, possibly for another woman – as well as personal insecurities. But it was comments about her feelings towards her children that really set suspicions racing – entries like:

and this quote talking about Laura:

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: 8543
²
= 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 statis
tical 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 paper
¹³
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: