Can justice keep up with science?

From the mere identification of a body, to determining potential offenders, DNA analysis has helped identify the ‘who’ at a crime scene. Chemistry has been used to ascertain materials involved in crimes; physics to make sense of blood spatter.

As science marches to the beat of discovery, it’s found a sympathetic bystander in criminology.

But what happens when science continues to march past justice?

This question has arisen with the second inquiry into the 2003 convictions of Kathleen Folbigg, now serving a 30-year sentence for the murders of her children Patrick (at eight months of age), Sarah (10 months) and Laura (19 months), and the manslaughter of son Caleb (19 days).

Folbigg has exhausted several avenues of appeal but has been granted two inquiries by the New South Wales governor because of new scientific analyses.

The first inquiry, held in 2019, was brought about by contemporary assessments of the forensic pathology surrounding her children’s deaths. In a nutshell, the reappraisals by Professor Stephen Cordner and Johan Duflou found there to be a natural explanation to each death, even going so far as to say Folbigg could not be convicted based on the forensic reports made at the time.

More: Second Folbigg inquiry to resume

The inquiry didn’t consider the evidence sufficient to have ‘reasonable doubt’ around any of her convictions.

One part of that inquiry is notable: two teams of geneticists unravelled Folbigg and her children’s genes. They found the Folbigg children possessed several genetic variations.

This isn’t particularly remarkable. After all, every person has genes that aren’t quite the same as the human benchmark: it’s a fact of life.

However, one such gene caught the attention of the geneticists: CALM2.

There are three CALM genes, each coding for an identical calmodulin protein that performs several duties in the human body. One of these is regulating the flow of chemical ions in and out of heart cells to trigger the electrical pulse of the heartbeat.

Until the discovery of the first CALM mutations in 2012, scientists considered variation to any of these genes to be “incompatible with life”.

As scientists explain, between you, your dog, the bird singing in a tree outside, your neighbour’s cat and the fish in their pond, these genes are unchanged and therefore must be essential for the condition of existence.

But then, a decade ago, a large Swedish family presented to clinicians with repeated episodes of stress-related fainting and cardiac arrest. It was soon found these events were triggered by a CALM1 mutation, and they were diagnosed with an inherited “calmodulinopathy” – a group of heart irregularities triggered by gene variations.

The deeper finding, of course, is that a CALM mutation was not necessarily a death sentence.

Jump forward to 2019, and the Folbigg genome, unravelled as part of the first inquiry, suggested the possibility of a novel CALM2 variation (known as G114R) causing cardiac issues for Laura and Sarah.

One group of the inquiry’s geneticists that detected G114R went away and conducted further research alongside those who found the first mutations in the Swedish family, and international experts in calmodulinopathies. This research, published in 2020, found G114R would cause a sudden cardiac death in young children like Sarah and Laura. It prompted the second inquiry.

Two decades after the children died, the beat of discovery had changed scientific understanding of a gene and what it means for life.

DNA, double jeopardy and getting back in court

Since Australian governments began changing their double jeopardy laws in the 2000s, retrials are now possible when fresh, compelling evidence – such as DNA testing – comes to light.

Remember, here we are talking about science that may affect the outcome of a trial.

Even so, the Folbigg case is unusual. Only through a persistent grassroots campaign, legal representation and, eventually, petitions from scientists, has the NSW government opened these inquiries to review the science. It’s unlikely the case would have been reopened without such a concerted push to bring fresh evidence to light.

“It is extremely difficult,” says Rick Sarre, a legal commentator who is Emeritus Professor of Law and Criminal Justice at the University of South Australia.

“I’ve been teaching this stuff for 30 years and if I had to go back and look at my correspondence file, I would say that over those years I’ve probably had two dozen people in prison write to me declaring their absolute innocence and saying they want an inquiry.”

In such circumstances, Sarre says, the best he or anyone of his expertise can do is either outline the process of submitting a petition for a governor’s inquiry, or refer them to an innocence project like the one operated out of Griffith University. Such initiatives take on cases where there appears to be some reasonable ground to support a wrongful conviction.

In the Folbigg inquiries (which are not trials; there’s no judge or jury, instead a presiding judicial officer will reach a conclusion and recommend further actions) we’ve seen expertise from forensic pathologists, geneticists, cardiologists, neurologists and psychiatrists operating from both research and clinical perspectives.

That raises another question: how can non-experts know which evidence is on the money, and which shouldn’t be considered?

Admissibility, accuracy and science

Gary Edmond, a science-trained law professor from the University of New South Wales, has for years studied and commented on expert evidence in the court systems of the Anglosphere. In his view, the standards for admissible evidence are generous.

“The standards for admissibility are really low,” Edmond says.

“That means that not a lot of evidence called by prosecutors is excluded and in New South Wales, there’s no requirement as part of the admissibility tests for scientific evidence to be valid or reliable.

“Courts are much more likely to be interested in whether someone has a formal qualification, whether they’ve given this kind of evidence before, whether they’re employed by a state agency.

“On average, and there are some variations, it tends to be much more perfunctory than you might think, in a system where you’re trying to use reliable evidence to facilitate accurate or good decision-making.”

Non-expert decision-makers still need to understand scientific evidence so they can make informed judgements.

“Most of the research suggests that jurors struggle with a lot of scientific evidence, and particularly when it’s presented in some forms like likelihood ratios and complex statistical forms,” he says.

Edmond says the courts haven’t really ever worked closely with statisticians and psychologists to work out what might be some of the better forms to present scientific evidence, so that jurors can best comprehend it.

“Even if there might be some loss in the precision that might make a scientist happy, the effectiveness of communication might be more important sometimes.”

And those frustrations can be shared by scientists too, especially if they feel, as Edmond suspects they sometimes do, the strength of their work or expertise is undervalued.

“I think scientists are often quite shocked at some of the processes and limitations of the legal system.”

A better way?

Science changes and, except for being certain that our undeniably round planet isn’t the centre of the universe, will largely continue to do so.

But the change, when it comes to science and justice, is the beginning, not the end, of the journey.

It’s hard to see European-style specialist judges appearing in Australian courts any time soon, but the conventions of the legal process are morphing to deliver the best science to this process.

Expert panels have been used to shape the parameters by which science will be analysed. One such meeting of geneticists was convened in the first Folbigg inquiry to determine how the Folbigg DNA would be tested. Experts will sometimes take the stand together where they can thrash out their points of disagreement.

Other examples exist around the world (though not in Australia) where expert ‘assessors’ sit with judges to provide counsel.

When studying Laura’s death during his review of the four Folbigg children’s forensic pathology reports, Stephen Cordner took issue with the original pathologist’s view that her heart samples showed only “patchy” myocarditis unlikely to cause death (myocarditis is a potentially fatal heart inflammation).

“I think scientists are often quite shocked at some of the processes and limitations of the legal system.”

Gary Edmond

To verify his opinion, he distributed photomicrographs of Laura’s heart tissue to his 10 colleagues at the Victorian Institute of Forensic Medicine to garner their perspectives. One of them was Professor David Ranson, a law-trained pathologist who now leads VIFM’s forensic services division.

He, along with the other nine consulting pathologists agreed with Cordner: myocarditis was undeniable.

Formally lodged as exhibits for the first inquiry, their responses could be considered a peer review of sorts. It shows there are ways for scientists to verify their expertise, even in the absence of highly stringent tests around admissibility.

Ranson agrees there needs to be better ways of evaluating science in justice. He believes any changes will be driven, inevitably, by the community, “and what the community trusts”.

He sees possibility in the use of judicial assessors improving the way courts consider science, and points to the adoption of expert conferences – like those in the first Folbigg inquiry – that set out the ground rules for expert evidence.

“I think that’s a positive piece about this … trying to bring experts together, trying to get a uniformity about that process and, at least, distil out the areas of true conflict between experts so the court can focus on that and reasonably accept the rest,” Ranson says.

Edmond says more systematic engagement with scientific evidence will require institutional change, but a suitable advisory body that “could occasionally just give them some advice in relation to areas that might be in dispute”, could be desirable.

“I’d imagine it would be a kind of multidisciplinary group,” he says.

“And it wouldn’t actually be saying things like ‘this should be admitted [or] you shouldn’t use this to convict’, it would be more like offering general advice, it would be up to the courts to say what they wanted. But at least they’d have that formula available to them.”

Ultimately, good science is good for justice, and something justice wants to use. And over the last three decades, Rick Sarre has observed a marked shedding of what he describes as the legal system’s “arrogance” when it comes to considering science in courtrooms.

“It’s far more likely to accept that science, sometimes, doesn’t lie,” Sarre quips.

More on the Folbigg inquiries

• From November: Danish researchers present novel CALM mutation study to inquiry
• Timeline compared: Folbigg convictions and genetic advances
• Video explainer: What is Calmodulin
• From 2021: Cosmos Briefing: Science v Law