LINCOLN COUNTY • Russell Faria, convicted of killing his wife here, won a step toward a new trial Tuesday when an appeals court ruled that newly discovered evidence — including a claim of romance between the prosecutor and a case investigator — could produce a different verdict in a retrial.
Defense lawyer Joel Schwartz said 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 said 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. His deadline to do that is March 12.
Faria, 45, is serving a sentence of life without parole at the Jefferson City Correctional Center.
Questions about his conviction were the subject of a joint Post-Dispatch-KTVI Fox 2 investigation last year.
Prosecutors said Faria stabbed his terminally ill wife, Betsy Faria, 55 times with a serrated knife on Dec. 27, 2011.
But Faria, his lawyers and his alibi witnesses have long argued that he was miles away when his wife died — and that the killer was more likely someone else.
Mennemeyer refused to allow Faria’s lawyers during the 2013 trial to present evidence against Pamela Hupp, the woman Faria wanted to blame. The judge said then there was not enough proof of a direct connection between the death and Hupp.
Hupp has denied any involvement in the murder.
Betsy Faria and Hupp were friends, and Hupp had dropped Betsy Faria off at home the night of the murder.
Hupp became the beneficiary of $150,000 in life insurance on Betsy Faria days before the murder.
Russell Faria’s lawyers have complained that Mennemeyer did not force prosecutor Leah Askey to offer a theory about the victim’s time of death. And they said Askey “improperly argued the existence of imaginary facts” in closing arguments.
The prosecutor told jurors that Faria’s four alibi witnesses might have been accomplices, although no evidence against them was presented. On the question of why Faria’s clothes were not bloody, she suggested that he could have stripped naked and taken a shower — again with no evidence of recent shower use or blood in the drain.
The defense also said that although Mennemeyer banned Askey from arguing that “no one else could have done this,” she essentially did so in her closing argument.
After Faria’s conviction, his lawyers appealed and filed a motion seeking a return of the case to Mennemeyer so they could present new evidence. They cited a claim that Askey was having an inappropriate relationship with an investigator who worked on the case, and a deposition by Hupp in a civil case filed by Betsy Faria’s daughters.
The daughters allege that Hupp has reneged on a promise to turn over the insurance proceeds. Hupp’s lawyer has called the claim baseless and unsupported by the evidence.
Hupp has given conflicting accounts of Faria’s intentions to the life insurance company, police, the jury, friends, Faria’s relatives, the Post-Dispatch, and in a deposition.
Chief Appellate Judge Angela Quigless, in Tuesday’s order, summarized Hupp’s deposition by saying Hupp felt pressured by police and prosecutors to use the money to set up a trust for the daughters before the trial, fearing it didn’t look good that they had not received any money. Hupp has said that she dissolved the trust after the trial.
Quigless did not detail the allegations involving Askey’s romance, but the appeal says it involved an investigator who worked on the case and testified about cellphone evidence. Schwartz said he expects to prove the relationship with what he said is an email authenticated in multiple ways, and that Askey may have to testify.
“A murder trial has turned into a soap opera,” he said.
Askey and the investigator did not return calls seeking comment for this story.
Quigless wrote that the appeals court does not “generally” send a case back to the trial court before an appeal is concluded if the evidence is “not enough to grant a new trial.”
She wrote that the appeals judges have the “inherent power to prevent a miscarriage of justice or manifest injustice,” if the evidence is new, was not overlooked before trial and is “so material that it is likely to produce a (different) result at a new trial.”
Schwartz’s associate, lawyer Nathan Swanson, said the order is a recognition that the new evidence would have to be examined — either by Mennemeyer or by the appeals court.
Schwartz said the other aspects of the appeal are still working their way through the court system but on schedules that have months of delays built in.