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Court ruling in Russ Faria case opens door for retrial

In 2014, Russ Faria’s defense team filed a motion with the Missouri Eastern District Court of Appeals to motion for remand to file motion for a new trial based on newly discovered evidence. Today the appellate court granted that request.

Russ Faria, 45, was convicted in Missouri in 2013 of murdering his terminally ill wife, Elizabeth “Betsy” Faria, in 2011. Faria’s conviction was shocking because he had what appeared to be a rock-solid alibi. Four witnesses testified that Faria was with them watching movies at the time of the murder. Gas station security cameras and a fast food receipt also confirm Faria’s whereabouts that evening.

Today’s ruling is excellent news for Faria and is a big step forward in his fight to prove his innocence. The ruling suggests that the newly discovered evidence could produce a different verdict in a retrial.

The defense motion focuses on two claims of newly discovered evidence. The first claim points to another possible murder suspect named Pam Hupp. Hupp claims to have been a longtime friend of the victim, Betsy Faria. According to Hupp, the Farias had a rocky relationship, claiming that Betsy confided with her that her husband had been abusive. None of Hupp’s claims have been supported by anyone else in Betsy Faria’s life.

Hupp became the beneficiary of Betsy Faria’s life insurance policy just four days before her murder. At the time, Russ Faria was completely unaware of this change. According to Hupp, Betsy wanted to make sure her grown daughters received the life insurance payout and she did not trust her husband with the money.

Hupp’s actions shortly before the murder seem to have gone completely unnoticed during the investigation. Hupp showed up at Betsy’s chemotherapy treatment on the day of the murder insisting that she drive Betsy home. When Betsy assured her she already had a ride to her mother’s home, Hupp left only to show up later in the day at Betsy’s mother’s home, once again insisting that she drive Betsy home. Betsy accepted the ride on Hupp’s second attempt, making Hupp the last person to see Betsy Faria alive.

Hupp was never considered a suspect by police. In fact she was viewed by the police as a credible witness. Hupp testified for the prosecution at Faria’s trial. This is when the defense learned that Hupp had become the beneficiary of the life insurance policy, and sought to introduce evidence pointing to Hupp as a possible alternative suspect. The prosecution moved to exclude that type of evidence, arguing that there was no real connection between Hupp and Betsy Faria’s murder.

The standard the defense had to show in order to be able to point the finger of guilt at Hupp was a connection between Hupp and the murder, such as a motive to commit the murder. Obviously a $150,000 life insurance policy is certainly motive enough. Hupp told the court that the only reason she received the payout from the life insurance policy was so that she could set up a trust account for the two daughters. This convinced the court that she would receive no personal gain from the money. For this reason, the court excluded the evidence, meaning that the defense was not allowed to point any suspicion on Hupp as an alternative suspect at the trial. As a result, the jury never heard any of the details about the life insurance policy or about Hupp’s insistence to drive Betsy home.

Hupp has since revoked the trust, and to this day she has not given any money to Betsy’s two daughters. The daughters filed a lawsuit in April of 2014 claiming Hupp defrauded them out of $150,000 in life insurance.

Faria’s defense team has argued that information about Hupp is crucial to the case and should not have been suppressed. The appellate court stated in their ruling today that they agree with that argument. According to the appellate court, “Hupp was a friend of Victim, drove her home on the night of her murder, and was a witness for the State. The evidence that was excluded at trial included information that Victim had changed the beneficiary of a $150,000 life insurance policy to Hupp four days before her murder. Hupp had told police that Victim changed the beneficiary so that Hupp would use the money to take care of her daughters from a previous marriage. During an offer of proof at trial, Hupp testified that she had established a trust for the daughters with $100,000. She specifically denied establishing the trust solely for the purposes of trial.”

The court goes on to say that “the newly discovered evidence concerning Hupp is contained in a deposition of her taken on July 29, 2014 for a civil suit filed against her by the victim’s daughters. In that deposition, she specifically denied that Victim wanted her to use the money for the benefit of her daughters and had only changed her to the beneficiary so Hupp could get the money.”

The court then highlights possibly the most damning revelation, stating: “she testified that the police told her that it didn’t look good that she had not given any of the money to Victim’s daughters. She testified that the detectives and the prosecuting attorney had put pressure on her to form a trust for the daughters. In particular, Detective Carrick told her that they would like for her to set up a trust. She also testified that she has since revoked the trust entirely.”

This information is incredibly damaging to the prosecution. Hupp set up a trust account shortly before Faria’s trial, after being pressured by the prosecutor and detectives because the situation looked bad, only to later revoke the trust after trial. This newly discovered evidence suggests that the trust account was set up only to eliminate the motive that Hupp would have had to kill Besty Faria. Motive such as this would have been the direct connection that Faria’s defense would have needed in order to convince the court not to exclude evidence that Hupp could be an alternative suspect. Hupp’s testimony at her deposition suggests that the entire plan was put into motion due to pressure from the prosecution.

The second claim of newly discovered evidence details an alleged affair between lead prosecutor Leah Askey, and one of the lead detectives on the case named Michael Lang. Michael Corbin, one of four alibi witnesses to testify for the defense, received information from an anonymous source claiming to have disparaging information about Prosecutor Askey. The source provided alleged emails from Detective Michael Lang to Prosecutor Leah Askey, discussing an affair between the two. Corbin broke the news about the alleged affair while speaking with me on the Injustice Anywhere online radio program in October of 2014.

The Missouri Eastern District Court of Appeals found validity in both claims of newly discovered evidence ruling that “Remand is appropriate. Appellant has satisfied each of the elements for a remand to file a motion for new trial based on the newly discovered evidence regarding both of his claims. The motion for remand is granted.”

The court specifically made a finding that this new evidence would likely change the outcome at the trial. That is a very difficult burden for a defendant to meet. Faria’s attorney, Joel Schwartz, told the St. Louis Post-Disbatch that “the order from the Missouri Court of Appeals in St. Louis, sending the case back to the trial judge for a hearing on a retrial motion, is “very rare.” He went on to say that “it was telling that the appellate court ruled so quickly and gave Circuit Judge Chris Kunza Mennemeyer just 90 days to hold a hearing and rule after Faria files a motion.”

The defense has until March 12, 2015 to file a motion for new trial based on the new evidence in the circuit court.

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