In the week since Kathleen Folbigg was pardoned and released from prison, she has been unravelling the learned behaviours from 20 years spent in prison: no longer eating dinner at 3.30pm, or having to wait for a guard before opening a door. Realising she has free choice.
But Tracy Chapman, Folbigg’s longtime friend and advocate, says they have also started turning their minds to what might be learned from Folbigg’s experience. First and foremost by proving the impetus to establish a Criminal Cases Review Commission, as exists in the UK and New Zealand, to examine miscarriages of justice.
Chapman says the reason Folbigg is no longer in prison is not because the system works but because of a groundswell of support from people who ploughed through it, many of whom were women.
As Folbigg’s lawyer Rhanee Rego puts it: “There have been hugely powerful, fierce women backing Kathleen and I think that a lot of why we are here today is because of them.”
Chapman says she always believed Folbigg, her friend since kindergarten, was innocent after she was convicted in 2003 of the murder of three of her children and the manslaughter of one.
The toll of her 20-year fight to make the justice system and the public see the same, and supporting Folbigg through the emotional turmoil of failed appeals, has hit hard. Chapman says she has been insulted, spat on and received death threats.
“I kept going because I could and I would,” says Chapman, who retrained as a mental health expert so she could better help Folbigg’s case and now plans to do her PhD in the morals and ethics of the justice system.
“When it’s that level of friendship you’re bonded for life.”
Chapman’s goal throughout the ordeal was to talk to 10 new people a day “until she was blue in the face” about the Folbigg case, and knocking on the doors of politicians and lawyers to get them to listen.
But she says the awakening that pushed her advocacy for her friend even further was the book Murder, Medicine, and Motherhood by Emma Cunliffe, a justice expert at the University of British Columbia.
When Cunliffe began trawling through the trial archives of Folbigg’s case, she was already well aware of the flaws of Meadow’s Law, a legal concept that strongly influenced the outcomes of Folbigg’s 2003 trial. Meadow’s Law, which has since been largely discredited, suggested that three or more sudden infant deaths in one family was murder until proven otherwise.
But for Cunliffe, serious doubt started to creep in when she read the excerpts of diaries that were a key pillar of Folbigg’s conviction.
“Once the very damning passages that are repeatedly quoted in the media were put into context, it seemed clear to me that they weren’t her visions of having killed her children at all,” she says.
“They were a mother who was trying to think about how to prevent it from happening again. A mother who was trying to make sense of the grief and the trauma that she’d experienced.”
In her book, Cunliffe argues that Folbigg was wrongly convicted. She notes that Folbigg’s normal behaviours as a mother – such as working part-time instead of caring for her children full-time and putting her children in childcare so she could go to the gym – were viewed punitively and painted as suspicious in the courtroom.
Cunliffe says this is what made a lot of people, particularly women, identify with the case so strongly. “I think that perhaps women can imagine themselves being judged in the same ways,” she says.
“There needs to be a reckoning in the ways in which criminal lawyers use discriminatory stereotypes and misogynistic reasoning about women in the course of making arguments in criminal cases.”
Rego has worked on the case pro-bono since she became involved in 2017. At the time she was undertaking a placement with the barrister Robert Cavanagh when he and another barrister, Isabel Reed, who started a review into Folbigg’s case in 2013, asked for her view.
“I read the trial, the diaries, everything that was available up to that point, and I came to the same view that they did: that there was a miscarriage of justice here,” she says.
What struck Rego when she first met Folbigg was her character.
“She was not the cold, hateful person portrayed by the media and legal system. Indeed, she was the opposite of those things,” she says. “From then I said to Robert and Isabel I’ll be hanging in there with this until the end.”
The breakthrough moment, says Rego, was in 2018 when research by a team of experts, including immunologist Carola Vinuesa, found Folbigg and her two daughters – Laura and Sarah – carried a rare genetic variation, known as CALM2-G114R, proving a high chance the causes of death was natural.
A month before Vinuesa was asked if there was merit to looking into the possibility of a genetic cause of death for Folbigg’s children, she was referred to a case of a Macedonian family who had also had four children die in a similar age range to Folbigg’s.
“I wasn’t thinking she was innocent from the start,” says Vinuesa of Folbigg’s case. “But having a medical background when I was told some of the children had epilepsy and myocarditis I was thinking how bizarre this woman is in jail.”
Vinuesa gave evidence on the new research at a 2019 judicial inquiry into Folbigg’s conviction. But that inquiry, which also examined evidence brought before the initial trial, confirmed Folbigg’s guilt.
The evidence and new medical research was again re-heard in another inquiry earlier this year, which was triggered by prominent scientists that called for Folbigg’s release given there was strong evidence her children had died of natural causes. It found there was reasonable doubt to Folbigg’s convictions.
As Folbigg and Chapman turn their minds to how she can use her experience to help others, Chapman says playing on Folbigg’s mind are the women she met in prison over the years who also claimed they were innocent but didn’t have the resources or backing to have their cases reviewed.
“This all can’t be for nothing,” Chapman says. “We both feel the same on that.”
