Now is the time to start talking about wrongful convictions
The pardon of Kathleen Folbigg - who spent two decades in prison for a crime she did not do - should lead us to a bigger conversation about our 'justice' system
Aboriginal man Derek Bromley has been locked up for 40 years and has continually maintained his innocence.
There are so many things to say about the way Kathleen Folbigg has been treated. The first is that what she has suffered and survived is unimaginable: a mother wrongfully convicted of killing her children, and then tarred as ‘Australia’s worst female serial killer’, convicted on circumstantial evidence that should never have held up in court. She has been criminalised and brutalised within the prison system. Now that she has been pardoned by the NSW Attorney General, the tide has turned. The mainstream media have reported on her ‘first night of freedom’, and how now there are questions about compensation, which seems to be the least the system can do given the magnitude of what has stolen from her. Finally, Kathleen has been given the right to innocence: a fact she has always maintained as she weathered the brutal blows against her.
But the one conversation that is missing, and desperately needs to be had, is on the prevalence of wrongful convictions in this country. Because exonerations are relatively rare compared to places like US, cases like Kathleen Folbigg are seen as aberrations of the system rather than the result of it. But, as my colleague Martin Hodgson - who has had over a decade’s experience working on cases of wrongful conviction overseas, including the high profile case of Rodney Reed - there are likely many wrongfully convicted persons sitting in prison:
Civil Liberties Australia estimates that 7% of Australian prisoners are innocent. The current prison population in Australia is over 40,000 people, which would mean there are 2,800 more Kathleen Folbiggs currently locked behind bars for crimes they either didn't commit or for which there is insufficient evidence. This is an outrageously high number, an entire rural town's population rotting their lives away because of a broken justice system.
The situation is compounded for Aboriginal people, who are the most incarcerated people in this country, and the most incarcerated people in the world. When we speak about the over-incarceration of Aboriginal people we do not often speak of ‘innocence’. ‘Innocence’ is an imperfect word, because the opposite is said to be ‘guilt’. As Angela Davis et al writes in Abolition. Feminism. Now: “the use of the category “innocence” is often invoked as an adequate measure of determining who gets released and who “deserves” to remain in prison”. Perhaps the reason we do not speak of ‘innocence’ is because through innocence there is an underlying suggestion that those those who the justice system criminalises and incarcerates as ‘guilty’ are deserving of the horrendous violence it imposes. I would also suggest there are issues with the word ‘innocence’ because it does not adequately incorporate cases affecting black women where they have retaliated against their abusers, like that of Robyn Kina and Jody Gore, who I would class as wrongfully convicted and wrongfully incarcerated. But “innocence” is also a politically useful term as there is no other term that really conveys the experience of being locked up for a crime you did not do and the unique traumas and injuries that are inflicted in having your entire reality continually denied and downgraded. Due to the over-criminalisation and targeting of Aboriginal people and due to the often inadequate legal resources available, which often recommends they enter guilty pleas, there is the continuing potential and undeniable reality that many blackfellas locked up are innocent. We need to talk about ‘innocence’ not as the aberration but as the the inevitable consequences of a racist violent system. This is a question posed by Martin Hodgson nearly seven years ago when we started working on just one of these cases of innocence: “How many Indigenous prisoners in Australia are innocent?”
We already have high-profile cases of wrongfully convicted Aboriginal people. Kwementyaye Stewart. Gene Gibson. Kevin Henry. Derek Bromley. There is so much I could say about each one of these but I’ll just draw out some of the parallels - in three of these cases, Stewart, Gibson and Henry, police extracted false confessions which were used to convict them. In all of these cases, there was questionable eyewitness testimony. In the cases I’m most familiar - Derek Bromley and Kevin Henry - their wrongful convictions were based on inadequate forensic pathology. In Bromley’s case, the egregious use of the now discredited former SA forensic pathologist Colin Manock - who was the basis for Henry Keogh’s exoneration - has been contested. In Henry’s case, there is doubt about the pathologists’ determination of drowning for the victim, as well as the fact there is no DNA at all tying Henry to the scene of the crime, as well as an alibi that he was not even present. Both Bromley and Henry are both awaiting justice, with Bromley’s case currently before the High Court. Bromley has spent four decades in prison while Henry spent over 28 years inside.
All these cases speak to how wrongful convictions occur, as we know based on extensive research into many cases, many of them involving African Americans, in the US. These contributors include false eyewitness testimony, prosecutorial misconduct, false and coerced confessions, dodgy forensic pathology, inadequate defense and perjured testimony. But the largest contributors to wrongful convictions, as Martin Hodgson says, is the police. The police role is not only surveilling and incarcerating black people but in undermining the worth of victims, particularly in cases of black women, through shoddy investigations that lead to enormous miscarriages of justice like those I have just mentioned. In all of these cases, there is an overt racism that targets the men in the first place. These men, like Bromley and Henry, had already been heavily criminalised throughout their entire lives before they were wrongfully convicted. The role of all-white or non-Indigenous juries also plays a part in this. The reason we must speak of ‘innocence’ or ‘wrongful incarceration’ when we speak of injustice and over-incarceration, is because of the ways the men and women are seen as innately criminal due to their blackness and Indigeneity and thus are disbelieved.
Unfortunately, because this is such an under-reported issue and over-looked conversation, the systemic changes we need to address wrongful convictions in this county are simply not in place. What was most astounding about Kathleen Folbigg’s case is that she achieved any form of justice at all. While it was very easy, it seems, to convict her based on circumstantial evidence, it was enormously difficult to get her a pardon and freedom. Her legal team and all her supporters should be credited as well as Kathleen for her resilience. And yet, we are currently seeing a situation where we are always in upheld battle to get cases of wrongful conviction heard and overturned.
In South Australia, the second right of appeal was instrumental in freeing Henry Keogh. There are currently statutory second appeal rights in Tasmania, Victoria and WA, and Queensland has announced potential plans to introduce one. But there are downsides to the second appeal rights as well, which has played out most pertinently in Derek Bromley’s case.
The first step we need to do is to build upon the news of Kathleen Folbigg to begin pushing for systemic changes in order to address cases of wrongful conviction. As Martin Hodgson wrote:
What can be done is an urgent review of every single case where a person has a reasonable claim of innocence and more importantly, the full weight of the state must wield its might against those corrupt cops and officials. On any one day in Australia, 2,800 lives depend on it and tomorrow more innocent lives will be lost behind the bars.