TROY, MO (KTVI) - Russ Faria`s attorney asked for a new trial and the Missouri Court of Appeals sent a message Tuesday that he might get it.
This in-depth follow-up coverage in a FOX 2 joint investigation with the St. Louis Post Dispatch. The appeals court sent the case back to Lincoln County because of new evidence, much of it covered in the Fox Files.
Defense attorney Joel Schwartz said, 'This stuff should`ve come into trial initially. Had we known about it, Mr. Faria would not be sitting in the penitentiary today.'
Schwartz`s client is serving life in prison.
Schwartz said, 'I think about him all the time. This is a man I know didn`t commit this crime and he`s sitting in the penitentiary for something he didn`t do with a victim who he loved.'
A jury believed Faria stabbed his wife Betsy more than 50 times in December 2011.
Jurors later talked about their frustration about not hearing all of the evidence. Now the appeals court says it`s remanding the case for Schwartz to file for a new trial because of 'newly discovered evidence.'
Schwartz said, 'The court of appeals seemed to indicate a bent towards getting us a new trial one way or another. I certainly can`t speak for them, but if things are done as correct we will get a new trial.'
The appeals court mentioned new evidence exposed in numerous Fox Files reports, including testimony from a friend of the victim's, named Pam Hupp.
Hupp drove Betsy home the night of the murder and benefitted from proceeds from a $150,000 life insurance policy. The policy was signed into Hupp's name days before the murder.
During an audio recorded interview, the day after the murder, Hupp told police Betsy wanted her daughters to get the money. Now it's come out in a video recorded civil court deposition that Hupp called the $150,000 "my money."
The court`s order also mentions a reported 'romantic relationship between the prosecuting attorney and one of the police officers who testified at trial for the state.'
The officer the court is talking about was in charge of analyzing cell phones. Hupp`s cell phone did not appear to be examined like Russ Faria`s phone was examined. No detailed record of calls and texts appears in the court record, beyond an investigator reading some of Hupp's texts during an audio recorded interview.
Schwartz wanted that evidence after his expert found Hupp`s cell phone pinged in the area of Betsy Faria`s home when Hupp told police in a recorded interview that she was almost home in O`Fallon, Missouri. Yet there doesn't appear to be a lasting record of incoming and outgoing cell phone transmissions in the case file.
Schwartz said, 'There`s no other way to put it other than it`s gone and I`ve been curious as to day one as to what was contained there.'
The absence of that evidence may be one reason why the reported affair became relevant to the Court of Appeals. FOX 2 and the St. Louis Post-Dispatch partnered in this investigation and we both received an anonymous letter, along with a reported love note e-mail between the police officer and prosecutor.
I asked Robert Patrick, 'Tell me about your efforts to independently verify this alleged affair?'
Robert Patrick responded, 'Well after we saw the information that was contained in the appeal we made an attempt to contact Leah Askey`s office. I sent an e-mail January 2nd, requesting any email traffic between her and the officer.'
Hayes interjected, 'To try to obtain the email that we saw?'
Patrick, 'Correct and I have not yet heard back.'
I contacted both Lincoln County Prosecutor Leah Askey and the Attorney General`s Office and received no comment.
Though the ruling only opens it up for Schwartz to ask for a new trial, it seems to indicate that he`d better get it, as the order says any 'denial may be alleged as an error in the pending appeal.'
Schwartz says the MO appeals court has only issued three other orders like it in history.
With $150,000 on the line, a murder witness changes her story
Appeals Court overturns 3 recent cases involving Faria judge
Fox Files Special Report: The Faria Murder
Fox Files Special Report: The Faria Murder (Part 2)
Fox Files Special Report: The Faria Murder (Part 3)
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