Bone Deep, page 33
“Judge, I ask you to please help us finally get justice for Betsy Faria and her family by finding the defendant guilty.”
And then the second trial of Russ Faria was over. The judge called the lunch break and said he would reconvene court sometime later that afternoon. Everyone knew he meant he would return his verdict then.
Joel Schwartz looked intensely into Russ Faria’s face and nodded; Russ nodded back. They knew they had taken their best shot and it was all in Judge Ohmer’s hands now.
Russ remained optimistic Ohmer would recognize the absurdity of the charges and the total lack of evidence against him. He wanted to be confident that he was close to being cleared of the murder of the wife he had loved deeply, if imperfectly. But the courts in Lincoln County had convicted him once before and he knew it surely could happen again. If it did, Russ feared, he would never get another chance to win his freedom.
* * *
There was one more bitter exchange between the prosecution and the defense before the judge could return his verdict. Schwartz was talking to Russ as he smoked a cigarette in the courthouse parking lot when Nate Swanson called to relay a take-it-now-or-leave-it offer for a plea bargain from Leah Askey. Schwartz felt a rush of dread. He thought it was possible Askey would offer to let Russ plead guilty of involuntary manslaughter and be sentenced to time served. That would be a difficult offer to refuse, Schwartz thought, because there would be no more jail time even if Russ had to plead guilty to a crime he did not commit.
But then Swanson disclosed Askey’s offer: If Russ would plead guilty of second-degree murder, she would recommend a sentence of “soft life”—meaning Russ would be eligible for parole. Schwartz was relieved that Askey’s ridiculous offer showed just how far out of tune Askey was with the state of the case.
When Schwartz told Russ about the offer, Russ’s anger and frustration from the last four years erupted in his response: “She could give me a parking ticket and I’d tell her to stick it up her ass.” Schwartz relayed Russ’s perfect response verbatim to Swanson to transmit back to Askey. Swanson said later that he told Askey that Russ wouldn’t even plead guilty to a parking ticket now—but he left out the exact location Russ suggested Askey could deposit the offer.
CHAPTER FIFTY-TWO
Judge Steven Ohmer’s call for court to reconvene at 3:45 p.m. came sooner than almost anyone expected. Joel Schwartz told Russ Faria it was impossible to know how to read a quick verdict from an experienced judge like Ohmer. If a jury ready to convict a defendant of murder deliberates an average of four to five hours, what could it mean that the judge had been out for three hours?
Pam Hupp was not in the courtroom now, as she had been during closing arguments. Schwartz would learn later that she had already left the courthouse by a side door reserved for employees.
After everyone was seated in the courtroom, the judge swept onto the bench with a business-like demeanor and a quick greeting of “Good afternoon, folks.” He was pleased there had been no incidents in the courtroom during the trial and he didn’t expect any now, but he made it clear anyone creating a disturbance supporting or opposing his verdict would be escorted out. He asked the defendant to stand; Russ Faria, Joel Schwartz, and Nate Swanson rose quickly behind the defense table.
“There’s no question that this was a brutal murder,” the judge began solemnly, “and I’m sorry the family, or any of us, have to witness such horror.”
He explained that a defendant is presumed innocent and the State has the burden of proving guilt beyond reasonable doubt. He added, “The charges here of murder in the first degree and armed criminal action are totally appropriate for the facts and circumstances of this case.”
Russ was concentrating on the judge’s every word and he suddenly feared that last comment might not be a good omen.
“There are two separate theories submitted to this court by the parties. First, the State surmises that the defendant killed Betsy in a fit of passion and rage. Next, the defendant surmises that Pam Hupp conspired to kill Betsy and set up the defendant to take the fall.”
The judge looked over the courtroom and then read from the paper in front of him: “ ‘The investigation into the facts and theories of this case by law enforcement is rather disturbing and, frankly, raises more questions than answers.’ ”
Joel Schwartz didn’t hear another word the judge said over the next sixty seconds. He now knew exactly what the judge was about to say and what the verdict would be.
Russ was encouraged by the judge’s blunt criticism of the cops and their investigation, but none of that included the exact two words he ached to hear.
“Inconsistencies and/or lies do not equate to murder where the hard facts do not support the conclusion, but rather support speculation, innuendo, and supposition only. Unfortunately, the hard facts alone are insufficient to give a clear resolution to this messy case,” the judge continued.
“A reasonable doubt is a doubt based upon reason and common sense after careful and impartial consideration of all of the evidence in this case. Proof beyond a reasonable doubt means proof that leaves you firmly convinced of the defendant’s guilt. The law does not require proof that overcomes every possible doubt. If the fact finder is not firmly convinced of the defendant’s guilt, the court must give him the benefit of the doubt,” Judge Ohmer read.
“Consequently, as to Count I, murder in the first degree, the court finds the defendant, Russell Scott Faria”—Russ sucked in a quick breath that made his chest quiver and he could feel his heart pounding all the way up to his throat as the judge completed his verdict—“not guilty.”
Russ legs went weak and he feared he would collapse until he felt Nate Swanson’s arms around him, holding him up. Schwartz turned and smiled into Russ’s face, took his arm, and said almost too softly to hear, “It’s over.”
Russ vaguely heard his family and friends behind him trying to stifle their happy cries; he didn’t hear the shocked gasps from Betsy’s family on the other side of the courtroom.
Russ was savoring those two words he had waited so long to hear, and he was about to hear them again as the judge continued. “As to Count II, armed criminal action, the court finds the defendant, Russell Scott Faria, not guilty. The court further orders the defendant discharged in this cause. The court stands adjourned.”
Schwartz hadn’t cast a glance toward Leah Askey until he noticed she had packed up and was leaving the courtroom.
Russ turned and rushed back to his mother’s arms—without any interference from a deputy sheriff this time—and was immediately surrounded by his father, his sister, Mary Anderson, and other relatives and friends. Amid the hugs, kisses, and tears, Russ began to realize that, for the first time in almost four years, he was about to walk out of the courthouse into complete and total freedom without the threat of prison or the cloud of guilt hanging over his head.
Betsy’s family and friends left the courthouse quickly and drove away without speaking to anyone. Celebrating outside the courthouse front door, many of Russ’s supporters pulled on purple T-shirts they had made especially for this outcome. Under his picture was printed: RUSSELL FARIA—INNOCENT. Some of his friends cracked open a bottle and began drinking toasts to freedom for Faria.
Leah Askey later issued a simple statement. “While I believe in our justice system, I disagree with this verdict. My job is to seek justice for our victims and present evidence in the best way I can. My condolences go out to Betsy Faria’s family.”
Russ and Schwartz made short and simple comments to the media. Asked how he felt, the beaming Russ said, “Relief. Glad it’s over—finally.”
Schwartz couldn’t begin to express what he was feeling. It had taken almost four years, but he had kept his promise to an innocent man. This was the kind of case, and Russ Faria was the kind of person, Schwartz had gone into the law to defend.
Through a smile he tried to restrain, Schwartz told reporters, “We’re happy that justice has finally begun to prevail. I still hope for justice for Betsy and her family.”
That wasn’t a casual remark. After Anderson chauffeured Russ away from the courthouse and to a celebration with family and friends at a restaurant, Schwartz made a phone call to Richard Callahan, the U.S. Attorney for the St. Louis District in Eastern Missouri, to ask him to conduct a comprehensive review of all aspects of the Faria case, including the suspicious death of Pam Hupp’s mother. Callahan said he thought the facts warranted at least some conversations with the judge, the Missouri Attorney General’s Office, and the local prosecutor.
Schwartz urged Callahan to follow through aggressively. If Pam Hupp didn’t face justice—if Pam Hupp wasn’t stopped—Schwartz warned, “Someone else is going to die.”
CHAPTER FIFTY-THREE
Russ Faria was suddenly a free man faced with the challenge of rebuilding a life shattered by the loss of his wife to a violent murder, and almost four years in prison for a crime he didn’t commit. Living again with his parents in O’Fallon, he took a few weeks through the holidays and into early 2016 to rest and begin to readjust to life outside of a prison cell. He soon collected on two of Betsy’s life insurance policies that had been frozen while the court battles raged. He bought a mobile home and began to renovate it. He eventually would go to work for a friend who ran a motorcycle service shop, doing work he really enjoyed. It was a good way to start restoring at least a semblance of normalcy as he looked for a new direction for his life.
He cultivated a friendship with Ryan Ferguson, another man wrongly convicted of murder in Missouri, and joined Ryan in efforts on behalf of the Missouri chapter of the Innocence Project, the organization that works for the exoneration of people wrongly convicted. Ryan spent eleven years in prison for a murder he did not commit, winning his release in November 2013, just before Russ entered the same Missouri prison where Ryan had been held. (Today, Russ continues to make regular speaking appearances around the state to raise funds for the organization and advocate for the exoneration and release of its innocent clients.)
Russ’s search for justice in his own case and especially in Betsy’s murder continued, while Pam Hupp was hardly slipping quietly into obscurity.
* * *
In January 2016, the suit by Leah and Mariah Day to recover the $150,000 from their mother’s insurance from Pam Hupp went to trial before St. Charles County Circuit Judge Ted House. David Butsch—the Days’ attorney who provided that vital tip to Joel Schwartz about Pam and her trust fund—argued that Pam committed constructive fraud and benefited from unjust enrichment—two civil law concepts seldom heard around the edges of a murder case. His theory was that Pam accepted the role as beneficiary to Betsy’s insurance money under an agreement with Betsy to give the money to the Days when they were older—a promise Pam personally repeated to the Days, Betsy’s family and friends, and the police.
Instead of doing that, she commingled the money with personal funds of hers and her husband’s and used it to invest in real estate and pay for a new house. Pam Hupp’s attorneys argued there was no binding agreement requiring her to give any of the money to the Days, and she was free to do with the money as she pleased.
With FOX 2’s cameras capturing the trial, Pam Hupp quickly became the sensational star witness with a predictable blizzard of contradictory answers and nonsensical explanations. Called as a hostile witness by the Days’ attorneys, she said she didn’t remember telling the police that Betsy wanted her to give the money to the Days, and if she did, she only meant she would consider giving them some money if their behavior improved. When asked if she deposited the money in her personal account with her other funds, she replied, “I did. It was my money.”
Pam admitted she lied to Betsy’s sister that she had given away the money. Asked if she lied to anyone else about the money, she said, “Anybody that would bug me and bug me and bug me and bug me.”
Did she have memory problems?
Yes and no; whatever she said sounded like the truth to her then, but she sometimes learned later it was not.
And there was that sexual-affair stuff to discuss. She said she hadn’t told the police or Leah Askey before Russ Faria’s first trial that she and Betsy had had a sexual relationship because she had not talked to Askey or those other detectives until Russ’s second trial was approaching.
The most memorable moment came as one of the Days’ attorneys asked Pam a question that confused her. As the attorney pressed for an answer, she began waving her left arm around as she protested loudly, “Whoa, whoa, whoa, whoa, whoa, whoa, whoa!” When the attorney pressed again, she gave him another round of “Whoa, whoa, whoa!” The attorney asked Judge House for help and he instructed her to just say she didn’t understand the question.
Pam was such a terrible witness that even her lawyer refused to vouch for her in closing arguments. “I’m not going to argue about her credibility,” he said to the judge. “She’s not a credible witness. But that’s not the issue. The issue is what the intent was of Miss Faria.”
Her performance convinced David Butsch that he was correct to judge her as a manipulative psychopath and unashamed, unrestrained liar. He thought she believed she could manipulate any situation until she was in control, and that her gibberish about whether she had a memory problem would absolve her of any need to give a specific and truthful answer.
As Pam left the courthouse after the final day of testimony, she noticed the camera crew from Dateline NBC filming her departure with her husband, Mark. As she crossed the street, Pam’s face lit up as she smiled and said directly into the camera, “Say hi to Cathy.” The unexpected and audacious greeting to Cathy Singer, the Dateline producer on all of the Russ Faria episodes, would become the dramatic opening of yet another Dateline on the Faria and Hupp case. Anchor Lester Holt opened the show by describing how Pam Hupp had surprisingly made Dateline a named player in the case.
(Keith Morrison had already delivered a personal message to Joel Schwartz. Morrison recalled Schwartz telling him after he collected the interviews for the first episode that he would be back for more after Russ won a new trial. Morrison told Schwartz that he often hears that from defense attorneys, but this was the first case in which it had actually happened.)
A month after the trial, Judge House returned a verdict allowing Pam Hupp to keep Betsy’s insurance money. He said there was not enough evidence to determine to a legal certainty what Betsy intended for her to do with the money. Betsy could have specified that on the form when she made Pam the beneficiary, but she didn’t.
“Betsy left it up to Pam Hupp,” Judge House said. And since the form was a legal change to Pam Hupp as beneficiary, she was entitled to keep the money.
Butsch was surprised and disappointed. He filed a detailed appeal, but the appellate court upheld Judge House’s verdict. Butsch said Leah and Mariah Day were disappointed, but accepted the decision graciously. They were sweet young women who had been pulled into a vortex of accusations, court actions, conflicting emotions about the man they had considered a father figure, and a host of adults telling them what they should do. Butsch thought they were weathering that storm pretty well.
Joel Schwartz understood the legal reasons for the verdict, but it nonetheless was disturbing and frustrating. Pam Hupp continued to slither out of every attempt to hold her responsible for her greedy and homicidal conduct that seemed determined to destroy Betsy, her husband, her daughters, and even Pam’s own mother—so far.
* * *
Although Judge House rejected efforts by Pam Hupp’s attorneys to make Russ Faria a party in the Days’ suit, Russ and Schwartz decided to take their own run at recovering the insurance money. Schwartz filed a suit against State Farm Insurance in St. Charles County Circuit Court in April 2016—less than two months after Judge House’s decision—attacking the validity of the change in beneficiaries. Schwartz alleged the beneficiary form was incomplete, was not received by State Farm until after Betsy’s death, and State Farm’s investigation before paying the $150,000 to Pam Hupp was inadequate. Eight months later, State Farm would settle the suit out of court for an undisclosed sum.
But that suit paled in comparison to a massive eighty-two-page suit Schwartz and another leading attorney in the St. Louis region, Bevis Schock, worked together to file in U.S. District Court in St. Louis in July 2016 against Lincoln County Prosecuting Attorney Leah Askey, and Sheriff’s Detectives Ryan McCarrick, Mike Merkel, and Patrick Harney. (McCarrick, by then, had become an officer for the nearby Florissant Police Department.) On the first page alone, the suit charged that Askey and the detectives “fabricated evidence, ignored exonerating evidence, and failed to investigate the obvious suspect” as part of a conspiracy to wrongly convict Russ Faria. Their actions deprived Russ of his civil rights and his liberty without due process in violation of the Fourth and Fourteenth Amendments.
In 532 paragraphs, the suit documented all of the facts of Betsy’s murder, Russ’s alibi, and the police investigation, and described each and every act of misconduct by Askey—such as prohibiting DNA testing of a pair of gloves or the dog’s feet for blood—and by the detectives—such as coaching witnesses, conducting what Schwartz believed was a fake polygraph on Russ to coerce a confession, and plotting to mischaracterize the lack of blood found by luminol tests in the Farias’ kitchen and dining room. The suit listed the evidence that should have made Pam Hupp a suspect, while explaining in detail how Askey and the detectives bungled the investigation or, worse yet, intentionally misdirected and shaped it to support their conclusion that Russ Faria murdered his wife.
The suit charged that the evidence failed to establish even a probable cause for arresting and trying Russ, but Askey and the detectives “conspired together” to convict Russ of a crime he did not commit. Their conspiracy put Russ Faria through an unimaginable four years in prison; caused emotional distress, which included terror, stress, fear, anxiety, humiliation, embarrassment, and disgrace; caused the loss of reputation in the community, and the loss of trust in law enforcement.
