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Lincoln County murder retrial hearing to examine testimony, possibly prosecutor's conduct

Lincoln County murder retrial hearing to examine testimony, possibly prosecutor's conduct


TROY, Mo. • Russell Faria’s quest for a retrial in the murder of his wife goes before a judge here Friday, with the potential of a courtroom clash over whether the prosecutor had called her secret lover as a witness against him.

The hearing responds to an appellate court order early this year that a trial judge consider whether the defense was given adequate latitude in the first trial in questioning another witness: a friend of Faria’s wife who collected on her life insurance.

The appeals court also mentioned an allegation that Lincoln County Prosecuting Attorney Leah Askey was having an undisclosed romance with a police officer who testified against Faria.

Askey has denied having a relationship with the married officer, and issued subpoenas for Friday’s hearing lining up witnesses who include her ex-husband, stepbrother, a handwriting expert and two news reporters. She also had listed herself as a witness, until a defense attorney suggested that she be removed from the case for doing so.

Her actions have brought up criticism by her stepbrother, Chad Fitzgerald, including his formal ethics complaint against her, alleging that she misused information gained as his lawyer years ago to tarnish his potential testimony about an affair.

It remains to be seen how much weight will be given to the affair allegation by St. Louis Circuit Judge Steven Ohmer, who is handling the Lincoln County case as an outside judge.

Friday’s hearing centers around the Dec. 27, 2011, murder of Betsy Faria, who already was dying of cancer. Russell Faria is serving a sentence of life in prison without parole for first-degree murder. Questions about his conviction were the subject of a joint investigation in 2014 by the Post-Dispatch and Fox 2 News, and garnered national attention.

As his appeal was making its way through the system, a rare appeals court order was issued March 6.

Noting an appellate court’s power to prevent a miscarriage of justice if newly discovered evidence arises, Chief Appellate Judge Angela Quigless wrote a two-page order focused mainly on Betsy Faria’s friend, Pamela Hupp.

Defense lawyer Joel Schwartz said the judge at the trial prevented him from fully exploring Hupp as an alternate suspect.

Hupp testified at the trial that she had set up trusts for Betsy Faria’s daughters using $100,000 of the $150,000 she received from the life insurance. She had become beneficiary three days before the killing. In a civil case deposition later, Hupp said she had felt pressured by police and prosecutors to set up the trust because it didn’t look good that the children were left out.

Hupp later dissolved the trust and kept the money. She has made contradictory statements about what Betsy Faria had wanted done with the insurance proceeds.

Hupp testified that she dropped Betsy Faria off at home outside Troy the evening of the murder. Russell Faria said he arrived later and found the wife dead of 55 stab wounds. He insisted that he was miles away, with friends, when the murder likely happened. Both have denied any role in the killing.

Quigless’ order barely mentioned the allegation about a prosecutor’s affair. And some law professors have said that even if it were true, the relationship would not necessarily qualify Faria for a retrial.

Responding to a Post-Dispatch inquiry, Askey denied the existence of an email purporting to be to her from her alleged lover. In an email to relatives years earlier, she said that the email had been altered.

Askey did not return a message seeking comment Wednesday. Her ex-husband, Chris Askey, declined to comment.

Schwartz, said, “My concern is righting the wrong that’s been caused by an overzealous prosecution and what we feel is a miscarriage of justice.”

Since April, Askey and an assistant, George Grundy, have filed motions and other court documents listing people they may call to testify Friday, including Faria and prior trial witnesses.

Also included were Chris Askey, Fitzgerald, an assistant attorney general who received a complaint about the prosecutor and officials from Warren County and Hawk Point. Schwartz claimed in a motion that eight of them have “no discernible connection” to Faria, and asked that they be stricken from the list or a summary be provided of their purpose.

Subpoenas for testimony and documents also were served on reporters Chris Hayes of Fox 2 News and Robert Patrick of the Post-Dispatch, who worked together on investigating the Faria trial and civil litigation by Betsy Faria’s daughters against Hupp.

Lawyers for both reporters filed motions, still pending, to quash the subpoenas as a violation of the First Amendment, Missouri Constitution and common law “reporter’s privilege.” The motions also say that there “is strong reason to believe” the subpoenas were issued “with the intent to stifle critics.”

Michael Downey, a St. Louis lawyer who specializes in legal ethics, said subpoenas can be seen as “an element of intimidation” and that receiving one “reminds you she has power over you.”

Fitzgerald, in a phone interview, claimed Askey was trying to make him “look as bad as possible.” He admitted he has only circumstantial evidence about an affair, but said he is prepared to testify that she wrongly used information gained as his lawyer to try to discredit him now.

She has subpoenaed information from the Warren County Sheriff’s Office. Fitzgerald said she was seeking information about misconduct allegations from when he worked there, and provided a copy of the disciplinary complaint he said he filed against her.

Warren County Sheriff Kevin Harrison confirmed that early on, Fitzgerald was “consulting” with his sister about his troubles, and later used a lawyer friend of hers.

Downey said that Missouri’s rules of professional conduct specifically prohibit using information “relating to representation of a client to the disadvantage of the client.”

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