Science versus the law | The Lab Detective Ep3

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Hello, it's Rachel here.

I'm the reporter on The Lab Detective.

Thank you for listening.

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last time on the lab detective.

The prosecution was offering a compelling and a unitary explanation.

These children have been murdered.

And the best that defense could do was say, well, we're not so sure they have been.

So we just turned to each other saying, what about Calm 2?

It was just Cal Tul.

Because it was one of

perhaps three dozen genes that had already been proven to be linked with sudden cardiac death in infancy.

If you see a variant that has never been seen before, it has the likelihood of being lethal because it suggests it has arisen recently in evolution and it yet hasn't been removed or weeded out.

So these are the kind of variants you're looking for when you're looking for a cause of death in a child, a novel variant never seen before.

Scrolling through that vast list of genes on their laptops, Carola Vinuesa and Todor Arsov realized that their early suspicions were right.

They thought that hidden in Kathleen Folbig's DNA, there might be a genetic explanation for the deaths of her four young children.

something that would prove her innocence.

And what they were looking at on their screens was the first bit of evidence that supported that theory.

Look, natural selection removes variants that are harmful.

So if a variant is harmful or lethal, it's very unlikely that the carrier, the person that has that variant, will survive to adulthood and reproduce and spread the variant.

Kathleen is a carrier of one of these harmful variants, a mutation of the CARM2 gene, and she's a rare case.

She survived into adulthood without any life-threatening symptoms, and she went on to have four children, with no way of knowing that she might have passed that variant onto any one of them.

The scientist dug into the research that already existed about CARM2 variants.

CARM2 is one of three genes in the Carmodulin family which help regulate the heart's expansions and contractions.

It turned out that other mutations were associated with severe cardiac disorders and sudden death in infancy.

So did you have a gut instinct about what might have happened when you found that?

Yes, I think both of us thought, well, if the children have this variant, one or more, they could have died from a cardiac arrhythmia.

You don't normally have these very strong suspicions, but this one, just for you to understand, for us it was quite obvious that if this was in the children, this would pose pose potentially a significant threat.

Just a couple of days after Carola and Todor made their discovery, they got in touch with Kathleen's lawyers.

They told them what they'd found and what needed to happen next, a full DNA analysis of the children.

The progress they'd made was clearly significant, but without identifying the same gene in the children, it would be inconsequential.

They knew they could access biological samples for two of the children, Patrick and Sarah.

But for Laura and Caleb, they were relying on tiny drops of blood taken from a heel prick, a simple procedure that happens in many Western countries just after birth.

The results of those had been filed away as part of the children's medical records.

So in Australia, those cards have been maintained for, you know, at least over 30 years, which is remarkable

and you know it was possible to extract DNA from this

one drop of blood that has been stored dry and obtain good quality DNA to do sequencing.

It's incredible.

So the DNA was of sufficient quality to then carry out the whole sequencing?

Remarkably, yes.

So what did you find?

So we found that the two daughters, the ones that had suffered the infections, the the respiratory tract infection and the myocarditis,

had the CARM2 variant.

The boys, who had had the respiratory difficulties and the epilepsy, did not.

Two of the four children had inherited that potentially lethal novel variant in the gene.

Two had not.

but the boys already had other conditions which could explain their sudden deaths.

It was a momentous breakthrough.

Genetics had uncovered a hidden truth.

The lab detectives had discovered crucial evidence that could overturn a murder conviction.

In the excitement of this part of the story, it's easy to skim over the fact that at the very moment Corolla was processing this brand new development, Kathleen had been languishing in jail for 15 years.

The legal system likes to think they know everything, or they don't.

After more than a decade of darkness, science had sparked a flicker of light.

Kathleen finally had something that could be used to prove her innocence.

And in a perfect world, what happened next should have been simple.

But of course, it wasn't.

Because even with this incredible development, it still had to be tested in a court of law.

The mere existence of the genetic evidence was not enough to overturn Kathleen's conviction.

Time might have passed, but these would be the same courtrooms that had been laced with misogyny and displayed a concerning lack of scientific understanding in the past.

The question then was, how far had the justice system travelled in the last 15 years?

So what was the process when Carolla had found that gene?

What then happened to your case?

It steamrolled then because it was like you've got all these scientists saying this is data, this is proof, you can't actually argue with this.

Even though the law and the legal system tried, I said because to try to get the legal system and scientists working together

seem to turn into some sort of a problem.

I'm Rachel Sylvester and from Tortoise Investigates.

This is the lab detective.

Episode 3, Science versus the Law.

Now might be a good moment for a recap on Kathleen's case, because nothing about what happens next is straightforward for Kathleen or for Corolla.

Remember that when Kathleen's first three children died, there was no police investigation.

An autopsy found that Kathleen's firstborn, Caleb, died of natural causes from sudden infant death syndrome, and her second child, Patrick, had died from complications linked to his epilepsy.

So there was was already a potentially innocent explanation for their deaths.

Sarah also died from SIDS, and the post-mortem of Laura had detected a heart problem, but her cause of death was ultimately written up as undetermined.

Now, Corolla's work was filling the gaps.

The variant of the CARM2 gene was present in both the girls.

which was likely to have been the catalyst for Sarah's sudden death and could also explain the heart condition condition in Laura.

I remember when I first told her on the phone that, you know, we had found a variant that she carried and we thought could explain the death of her daughters.

After spending years wondering why her children had died, Kathleen had a phone call in prison from Corolla that provided her with a possible answer.

I remember her saying, you know what?

I killed my children.

And she said, after all, it was me that passed this variant.

And for her, that was quite upsetting as well to realize that that had happened.

And it hadn't crossed my mind really that that would be her reaction.

And that's probably why, you know, genetic counseling is so important.

And these conversations are terrible because you only have six minutes to talk to someone in prison, right, on any particular day.

Kathleen is, of course, relieved to hear that there's an explanation, but there's also a deep sadness that accompanies this new knowledge.

The idea that she unknowingly passed this deadly gene to two of her children.

Double-edged sword for me.

I said, because that was, you know, here I am saying I didn't do anything.

I'm innocent.

I haven't killed my children.

And yet I go and pass on a gene that did.

I said, so I had a lot of soul searching and figuring out how I was going to have that sit.

You can't help your genes though.

You can't help what you don't know, you know.

So

I had to sort of settle with that.

That must be such a sort of bittersweet moment.

It is, yes, yeah, yeah, yeah, it is.

On one hand, it's given me the answers, so a big sort of off-the-shoulder relief that there's answers, so that was great.

But yeah, but to know that I carried and passed that on, that was,

you know,

unfortunate.

Corolla told Kathleen's lawyers what she'd found.

For them, it was the new evidence they needed to move the case forward.

Within a week of us sending that letter to the lawyers, I received a letter from the Crown of New South Wales asking me to be part of a genetics team that would form part of a new legal inquiry into Kathleen Folwick's convictions and would consider, amongst other things, a possible genetic cause.

The wheels were turning.

Over three weeks in early 2019, 16 years after Kathleen had been convicted, a judicial inquiry was held.

It was motivated by medical advances and growing understanding of sudden infant death syndrome.

The safety of Kathleen's conviction was going to be reviewed.

Corolla wrote up her findings in a report, saying that the novel CARM2 variant was likely pathogenic.

In other words, it could have caused the children's deaths.

But a rival team of scientists appointed by the inquiry to test the arguments disputed this.

They concluded that the new variant was of uncertain significance on the grounds that there was no categorical proof that the mutation was dangerous.

So there was a fundamental clash about how the science should be interpreted by the legal system.

Carola believed that her finding simply had to raise reasonable doubt about whether Kathleen had killed her children.

As a mother, she couldn't bear to ignore the new evidence, which suggested that at least two of the children might have died of natural causes.

The other geneticists argued that what was needed was near certainty that the mutation had caused the children's deaths.

Aside from the science, the new inquiry was also an opportunity for Kathleen.

While she'd been in prison, she hadn't spoken about her case.

Now she was going to be cross-examined specifically about the diaries.

It was the first time that I'd spoke.

The first inquiry was the first time I spoke about my journals.

But the process of talking about them was aggressive, adversarial.

Kathleen's lawyers argued that what Corolla's team had uncovered could change the interpretation of the journals, particularly those damning entries which remain the key circumstantial evidence that pointed to Kathleen's guilt.

I may as well have been back on trial because it was incredibly nasty at points, at times.

But there was a difference then, you know, like Cath 2000, 2003 was not paying attention.

Cath 2018, 19, that's a different matter.

Very much paying attention.

So you get me up on a stand then, and I was sort of like, you know, you can throw that at me as much as you like.

I'm not telling no.

She was asked around 50 times by the prosecution team if she killed her children.

Each time she said she hadn't.

The cross-examination was brutal.

At times, Kathleen sobbed.

She told the barrister, no, I didn't kill my children, and those diaries are a record of just how depressed and how much trouble I was having.

So what happened?

Look,

it was July, and I remember a call from Dave telling me

that

the judge had found

that the inquiry had reaffirmed her guilt.

He had

given more weight to the diaries and he hadn't been persuaded that this variant was a reasonable explanation for the girl's deaths.

In July 2019, Reginald Blanche, the judicial officer presiding over the inquiry, found that there was no reasonable doubt over Kathleen's convictions.

The judge chose to put more emphasis on the circumstantial evidence than the new questions that had been raised by genetics.

In fact, it was worse than that.

He concluded that the evidence which had emerged at the inquiry made Kathleen's guilt even more certain.

He said he found her explanations about the diaries simply unbelievable.

And to Carola's dismay, he concluded that he preferred the expertise of the rival team of scientists to her own detailed and careful research.

Corolla couldn't believe the findings.

That night, she woke up in tears and Kathleen was stuck in jail.

Her first opportunity to apply for parole would be in 2028, almost a decade later.

So I did have quite a bit of despair after that because I just sort of thought I've got nowhere to go now and I'm stuck.

So did you at that point feel convinced there'd been a real miscarriage of justice because you felt you'd proved the science?

I did, right?

I was very concerned and I felt there was a problem with the legal system understanding complex medical evidence and complex scientific evidence.

So I remember thinking,

well, what can we do?

But the bottom line for us was that this is proof.

You know, you can't go past actual science and proof and we never understood why it was taking so long.

And particularly, you know, in a case like this where you feel there's been a miscarriage of justice, right?

And that science can solve it.

So I just couldn't stop just because we had heard that a judge didn't find the evidence convincing.

As a scientist, you think, okay, how can it be more convincing?

What else can we do?

And science can do that, right?

There's something that sometimes medicine can't, but science can get to the bottom of things.

So if there's something else that you can do, you do it, right?

This is what drives us scientists, right?

We're not driven by the money.

There's not a lot of money to be made in science.

But you do want to get to the bottom of things.

And if once you are convinced that something is,

you know, has an answer, you want it to be understood.

And I thought it was a question of science not being understood or not being heard.

For Corolla, it was infuriating.

She'd built a career on scientific perseverance, on following the facts wherever they led her, sometimes at great personal expense.

She has an obsessive streak.

it's what makes her such a talented researcher, so she kept digging.

She decided to enlist a specialist biochemist in Denmark.

He ran some more tests which demonstrated that under lab conditions this new CARM2 mutation was as damaging as other COMODULIN variants that had already been linked to sudden infant deaths.

The scientific evidence was mounting.

By March 2021, almost 100 scientists had signed a petition calling for Kathleen to be pardoned,

including, you know, three Nobel Prize winners and endorsed by the Academy of Science.

And this was quite influential because the media, you know,

widely disseminated these findings and the narrative around her conviction started to change in the public, right?

And how important was that, do you think?

Look, I think it was key because, you know, many of these arguments are won on the court of public opinion.

And once the public opinion starts changing, the legal system finds it easier to make a finding of,

you know, innocence.

So I think it played a huge role, not just with the public, but with Kathleen herself, right?

As opinion started to shift among among the public, the same thing happened inside the prison walls.

Staff walking up and saying, What are you even still doing here?

Like, not understanding why I was even still inside.

Inmates who might have been abusing me the week before,

seeing things on TV or reading things or having things explained to them, then turn around and, you know, pat me on the back and saying, oh, congratulations, it's about time.

You know, this sort of change of attitude for going from toxic negative to positive and a bit more supporting.

That was quite the eye-opener.

So it certainly

changed how I was treated.

The petition argued that the new evidence on the CARM2 variant raised reasonable doubt about whether Kathleen had killed all four of her children.

It said that to keep Kathleen in prison would set a dangerous precedent because it would mean that cogent medical and scientific evidence could simply be ignored in preference to subjective interpretations of circumstantial evidence.

This was no longer just a fight for justice, it was turning into a battle between fact and fiction, a struggle between reason and emotion, between science and the law.

The media had turned around, but there was no response from the Attorney General of New South Wales.

So that was frustrating and sad in a way, right?

It was the Attorney General who would make the decision about what would happen next.

Because this is someone, at least a response, is it going to be pardoned or not?

So it took a year to hear from the Attorney General of New South Wales.

And the decision was that instead of a pardon, he was going to hold a second inquiry into her convictions.

The very different thing about the second and the first inquiry was that the legal team took the science very seriously.

It was remarkable, we were told that the judge had taken a brief course in genetics.

I hear several weeks' course in genetics, which, you know, already indicated that he was quite serious about trying to understand the science.

During the second inquiry, a significant amount of time was dedicated to discussing the science.

The Danish team spent over six hours explaining the significance of the CARM2 variant.

They told the inquiry that in their expert opinion, it was probable that the mutation had caused a heart problem, which led to the deaths of the two girls.

In other words, they had likely died of natural causes.

It was very impactful, and I think the judge quite liked it because he could understand it.

I think the thing that they got really right is the level of information, and they went through very slowly from the very basics to the more complex science.

It was really extraordinary to see that in a courtroom.

There was another significant difference.

For the first time, the all-important diaries were viewed in a different light.

And I also want to mention, I mean, it wasn't just the genetics, right?

In the first inquiry, most of the genetic evidence was there, but still the judge thought that the diaries carried more weight.

In order to debunk that, you needed to

you know, examine the diaries.

And for the first time in the legal inquiry, 10 experts, linguists, psychologists, forensic psychiatrists, were given the diaries to provide reports.

And it was remarkable that the 10 of them said there was nothing inculpatory in the diaries.

But in the first inquiry, no one had examined the diaries, no expert.

And in fact, the judge had said that he didn't need anyone to interpret the diaries for him, that, you know, they were written in plain English language.

But of course, it's very complex to analyze the diaries of a grieving mother, a mother that has lost four children, that, you know, feels inadequate, that is, you know, depressed.

So that was also very important that the second inquiry brought all these additional experts to also prove that there was nothing really inculpatory in the diaries.

Breaking news now, after more than 20 years behind bars for killing her four children, Kathleen Folbig has been granted unconditional pardon.

I was literally just called upstairs and the governor pretty much said, guess what?

You ought to pack up because you're going.

I went, and I thought he meant going to another prison.

Like, I didn't even,

you know, and he said, no, no, no, you've been pardoned.

And I'm, you know, I'm pretty much sure.

I just stayed there and looked at him.

I think I even swore.

I just sort of said, you know, are you serious?

New South Wales Attorney General has just announced that he received advice from the head of an inquiry examining the Folbig case that there was reasonable doubt as to her guilt.

The pardon does not overturn the convictions.

It was the fastest kick someone out of prison ever.

So it was 56 minutes.

We timed it.

I didn't get to say goodbye to anyone.

There was no packet or anything.

That all had to be done later.

I don't even think I signed anything to say I was leaving.

Her immediate future is that she will be taken to a farm in Cost Harbour.

So I was just thrown in a van and then sped off out to Tracy's and dumped at Tracy's farm.

Kathleen's best friend, Tracy Chapman, had been campaigning for this moment for 20 years, but she only found out when a journalist called to tell her the news.

Kathleen was already on the way, so she ran out to the entrance of her farm to wait for her.

I just remember standing there kicking stones for a bit, and then I hear a single black cockatoo, and I hear it calling.

And black cockatoos are a symbol in Australia of renewal and hope and peace and all the good stuff.

And I just remember I stopped what I was doing and I took a deep breath and I remember I had tears in my eyes because I thought, it's all going to be okay.

It's all going to be okay.

So it was, yeah, in borrowed clothes and not even my own clothes.

You know, I said, so everything happening so fast and it was just surreal.

And all of a sudden I'm at Tracy's place.

We're, you know, both of us were just a mess, really.

Oh my God.

And then she kind of just unceremoniously fell out the door and then straight into a hug.

And I just remember she had these stinky sand shoes with her.

So she had the sand shoes and I just get the waft of the sand shoes as she gives me a big hug.

And

yeah, and we just could not stop laughing.

And I was so excited.

They spent time just taking in the fact that they were in the same room, able to speak with each other face to face instead of on the phone.

Tracy remembers that they even physically pinched each other a couple of times.

They all seemed so unreal.

Look, it was such a sense of, you know, science being heard, right?

And the truth prevailing, and the legal system, you know, doing the right thing.

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Hi, this is Rachel, host of The Observer's latest investigation, The Lab Detective.

Before this episode, I wanted to tell you about a great new podcast called The Right Kind of Family from Europod.

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In the days after Kathleen's release, there were lots and lots of people who she wanted to thank, and Corolla was one of them.

I remember that first phone call and hearing Kathleen, and it was just a celebration over the phone and

just a very beautiful moment.

She was happy, she was grateful, she was exultant, just very happy, right?

And I was still in a little bit of disbelief.

Did you feel that your detective work had paid off, or did you feel frustrated that for so many years it had been brushed aside?

Look, I have to admit I did, because when you see something and you see something increasingly clearly, to think there is someone, you know, languishing in prison when so many scientists have now really signed this petition

quite convinced that, you know, there is another explanation.

It is, it is.

Yeah, it's upsetting even.

It was five years when she was released from the time that that we started working on the case, right?

Nearly five years.

A few months later, Kathleen was exonerated.

It was the last step in the process.

Her convictions were quashed and she was finally, in the eyes of the law, an innocent woman.

Today is a victory for science and a special...

22 years after she was first arrested for crimes she never committed.

What's extraordinary is

you'd been through this unbearable tragedy and then you also had to suffer this extraordinary miscarriage of justice.

What do you think, you know, what impact has that had on you?

Well, I'll put it this way, I'm on psychological care and therapy for the rest of my life.

You wouldn't be able to do it any other way.

I think because I'm a fairly pragmatic, sensible person and I try really hard not to let the emotional sides of things get too out of control or let it take me down too far, it made it a bit easier.

You know, I said, so, you know i'm out now uh and it's almost like it's i've only been even technically i've only really been out 2023 to two years um but in that two years uh it almost feels like i've never actually left society like it's it's a weird sort of situation i i joke with a girl saying i was 35 when i went in so my brain sort of stalled at 35

So did you feel vindicated or did you feel angry at the waste of all those years?

No, I felt vindicated.

Yeah.

I didn't really suffer too much anger.

Inside, yes, probably the first 10 years.

Yeah, you wouldn't have looked at me sideways because I would have snapped your head off because, yeah, I was angry about the whole thing.

But I soon sort of figured that, you know, I don't really have time for it.

You know, so things like people say now, why aren't you angry and bitter?

And I said, because I'm 58 this year, you know, realistically, 30,

40, if I'm stretching it,

years left of my life, I just don't have time to be angry about it now.

I've got too much living to do and catching up to do and

experiences to have and things that I've missed out on that I'm slowly sort of getting to do again.

So I think if you're going to walk around just being negative and

bitter with people, that's a miserable way to live.

I said, I already had that.

So I wasn't really interested in to continue doing it.

As I record this, Kathleen has still not received compensation for the miscarriage of justice she suffered.

But she's focusing on the future, taking joy in the simple everyday pleasures that most of us take for granted.

Everyone says, what's your most favourite thing to do?

And it's simply to be able to walk out the front door and go for a walk.

And people don't understand that.

The lesson should be to not ignore science.

The lesson, I think, should be that the legal system, if you've got scientists who are suddenly coming on board saying something's wrong, then those scientists need to be listened to.

Don't ignore the scientists.

It's incomprehensible what she must have gone through, right?

I myself

can't even begin to think what it must be to lose a child.

I've got two daughters myself.

Let alone,

you know, be vilified and be sent to prison and be in isolation.

She was in complete isolation for 14 years, right?

I mean, it's unthinkable.

And I suppose it speaks to Kathleen's resilience and strength.

Not everybody would come out of that ordeal with a sense of humor like she has, or with a strength that she has.

It is incomprehensible, but what's even more incredible, considering all that we now know, is that Kathleen's case might not be the last.

If you're unfortunate enough to carry a genetic mutation, multiple deaths in a family become more likely, whether or not you know you've got it.

These conditions and mutations don't discriminate.

They could happen to anyone.

And if you're in the wrong place, it might still end with the criminal justice system.

I do know that there are mothers that live in fear and have had to leave their country because they lost a second or third child.

And even though we think that Meadows' Law has been debunked and, you know, nobody should interpret three deaths as recurrent homicide.

We still know that in most countries, anything that looks unusual

still could lead to an accusation of murder.

When Carola and I sat down for this interview, I was still learning about Kathleen's case.

I assumed this was a story rooted in the past, and that this might be the end of the podcast, on a neat note about the justice system finally catching up with science.

But suddenly, when I asked Corolla about the progress of genetics in courtrooms around the world, it all felt much more urgent.

Are there any cases you're working on yourself?

I have contributed to a few cases,

and recently to a case in Greece, for example, where we were not able to persuade the courts that a broader and more in-depth genetic investigation was required.

And what was the upshot of that?

Well, that mother was sadly

condemned to

life

in prison.

So we decided to go to Athens and find out why.

Coming up on episode four of The Lab Detective.

So I got a tip.

from one of my sources.

They asked me to go out for coffee and discuss the case that there are all sorts of things that can be found if you look carefully do you worry that there's been another miscarriage of justice look personally I do worry

for her she wants to know

she wants to know what happened

the lab detective is reported by me Rachel Sylvester It's written by me and the producer, Gary Marshall.

Additional production and fact-checking by Madeline Parr.

The music supervisor is Carla Patella.

Sound design is by Rowan Bishop.

Podcast artwork is by Lola Williams.

The executive producer is Basha Cummings.

The Observer.

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