The pardon and release from prison of Kathleen Folbigg evoked many responses. Delight that she was pardoned after having been convicted on unreliable evidence. Disappointment that she could not yet be declared not guilty, and so entitled to be considered innocent. Regret and anger that she spent over twenty years in prison for a crime for which she was unsafely convicted. Admiration for her resilience in rising above the dehumanising conditions of prison life and the stigma of infanticide.
The story of her original conviction and her later pardon has been framed in many different ways. Some have seen it as the triumph of progress in which scientific discovery overcame ignorance and prejudice and led to freedom. This view, which reflects the authority given to science in our contemporary culture, certainly points to decisive elements in the story. The reality, however, is more complex. It encompasses both the authority of scientific evidence in human affairs and its limitations.
In the review of Kathleen Folbigg’s conviction the recent discovery that a rare genetic mutation found in her and her two daughters could have caused her children’s deaths was seen to create reasonable doubt about her conviction. It challenged the story presented by the Prosecution of a woman predisposed to violence by a traumatic background, and whose diary entries attested to her guilt. The hypothesis of her guilt, supported by expert witnesses, lost its cogency in the light of the empirical evidence.
It is right to celebrate the review as both the freeing of a woman from prison and as the triumph of scientific discovery over ignorance and prejudice. The discovery of the effects of the genetic mutation will surely influence the way in which similar deaths will be accounted for. More generally it points to the benefits that scientific discovery has brought in our lifetime. We need to think only of the benefits that the discovery of antibiotics, of lithium and of x-rays brought to a previous generation, and the number of diseases which were considered fatal a few years ago but can now be treated. We might also reflect on the scientific discoveries that allow low-paid workers may to eat better, sleep better, live longer and remain longer in good health than once their lords and masters would have done.
That said, it would be too simple to say that scientific discovery solved this court case, or indeed that it can alone solve any case to do with human affairs. The adjudication of such cases demands a different kind of intelligence. The reason is that it involves an ineradicable level of what the blunt St Augustine called ignorance – uncertainty, if you will. Criminal court proceedings are designed to test evidence and to offer assurance beyond reasonable doubt about whether those accused are guilty and responsible for their actions, and if so how they may be treated and thought of by society. But they do not remove ignorance. We are entitled to demand that judges and juries will weigh evidence and apply law conscientiously. We may hope, but may not demand, that they deliver justice or truth. This limitation arises out of the complexity of human beings and their relationships and out of the nature of human intelligence.
'The greater triumph lay in the readiness of society represented by government through its judicial system to review a case previously judged to be beyond reasonable doubt, and to accept the advice given in that review. It acknowledged the uncertainty and ignorance present in all human affairs, and the concomitant necessity to pass judgment without absolute assurance.'
In the trial of Kathleen Folbigg the original jury decided on the basis of the evidence put before it that she was guilty of killing her children. Their verdict was necessarily made in ignorance, but responsibly on their assessment of the lack of reasonable doubt. The most recent review of the case decided that new evidence created reasonable doubt about the conviction. That decision was also made in ignorance but responsibly. We may hope that a future decision will cancel the conviction. It will represent the recognition that on the evidence now available she should not have been found guilty, and as a result is entitled to be considered innocent under the laws of society and so to be of good character. Such a decision, however, will also be made with a level of ignorance.
Ignorance, (or uncertainty) is inherent in any judgment about other human beings and relationships. Yet such judgments must often be made. It is against this background that we should evaluate the cultural priority given to expert witnesses in trials. Although their evidence, like that of other people, can help clarify questions of reasonable doubt involved in trials, it can only rarely, if ever, establish with certitude guilt or innocence. Its most valuable contribution will often be, as in the Folbigg case, to create reasonable doubt rather than to provide certainty of guilt.
If the pardon of Katherine Folbigg represented the triumph of scientific progress, it did so only secondarily. The greater triumph lay in the readiness of society represented by government through its judicial system to review a case previously judged to be beyond reasonable doubt, and to accept the advice given in that review. It acknowledged the uncertainty and ignorance present in all human affairs, and the concomitant necessity to pass judgment without absolute assurance. It also emphasised the value of each person and consequently of their freedom and good reputation. These values were vindicated in the support for Katherine Folbigg and the process that led to her pardon. They are too important to be supplanted by supposedly more certain judgments of probability by scientists or computers.
Andrew Hamilton is consulting editor of Eureka Street, and writer at Jesuit Social Services.
Main image: Kathleen Folbigg leaving Maitland Court after being refused bail. (Getty Images)