The Inexplicable Case of Russ Faria

I shouldn't watch Dateline and 48 Hours. The cases featured on those shows all too often feature way too little actual evidence and way too many claims the defendant "just didn't act right." The prosecutors often make outrageous closing arguments that would be considered misconduct in my jurisdiction. Either a detective or prosecutor almost always describes the defendant as pure evil, cold, the most heinous, awful, odious person ever. (They can't all be the most evil killer ever.) More than one episode has involved a trial over a death that probably wasn't even a crime. And yet the defendants are almost always convicted, which just makes me mad. So I really shouldn't watch. But I do.

Friday's episode of Dateline may well have taken the cake in terms of head-spinning, blood-pressure-rising insanity. In Lincoln County, Missouri, Russ Faria was convicted of the murder of his wife even though he had an alibi established by two gas station security cameras, cell phone towers, an Arby's receipt, and four witnesses who were with him all evening.

It all began on a regular old Tuesday evening. Russ went to hang out with his gaming buddies, as he often did on Tuesday nights. He stopped to get gas. Then later, he stopped at a second gas station to buy drinks. Hung out with his friends for a few hours, watching movies instead of playing their usual games. Left around 9, stopped at Arby's, then arrived home around 9:40 pm. That's when he made the frantic 911 call to report that his wife appeared to be dead.

Betsy had been stabbed multiple times, with the final wound being to her neck, where the knife remained. In his panic, Russ told the 911 operator that he thought his wife had killed herself. Naturally, police immediately looked to the husband. The nature and number of her stab wounds suggested the kind of overkill that usually indicates a crime of passion by someone who loved the victim. Then with that odd comment about suicide, it was expected the police would look at Russ.

It didn't hurt that Betsy's closest friend, Pam Hupp (remember that name), was telling them all about the troubled Faria marriage. Including the "game" she says Betsy told her about, where Russ would hold a pillow over Betsy's head and tell her that's what it would feel like when she died. Other friends talked about Russ being immature, a little cringe-worthy at times, but none corroborated Pam's pillow story.

It definitely made sense to look at Russ. They also had some of Betsy's blood on a light switch and on Russ' slippers in the bedroom. Made them sure he must have done it. No other killer, apparently, was capable of touching that light switch or those slippers.

He gave a pretty detailed accounting of his night, so lots for the police to check out. They checked first one gas station and then the next. Sure enough, he was seen on security cameras at both stations, in the (blood-free) clothes he was wearing when emergency responders arrived at the scene of the crime. The game night friends all confirmed Russ was there from around 6 until 9. An Arby's receipt confirmed that purchase, at an Arby's about 30 minutes away from his house. Thus, making the timing of his 911 call entirely appropriate. And throughout it all, Russ' cell phone was pinging off towers right by that friend's house, not by his own.

Now, cell phone tower pings aren't conclusive evidence of a person's phone's location. Cell phones generally connect to the closest available tower unless that one is busy, then they go to the next closest, and the next closest, and etc. Depending on how busy the cell phone towers right by my house are, my text or call can go through a tower farther away from my house without me leaving home. But if for several hours your phone is consistently pinging off that tower right by your friend's house, it's pretty likely that your phone really was close to that tower for that chunk of time.

With an alibi so thoroughly backed up with security cameras, receipts, cell phone towers, and 4 honest, reliable citizens, one might expect the police to think, "Dang, this isn't our guy." Or at least, "If he did it, he hired somebody."

But, no. They doggedly stuck with Russ Faria being their guy. They still said his initial comment about suicide was suspicious. (Did I mention that Betsy had terminal cancer?) They still insisted his hysterical crying on the 911 call and at the station that night was suspicious. (Of course! The "he didn't act right" theory is alive and well.) They still insisted this was a rage-filled, crime of passion that could only have been carried out by someone who loved her and flew into a blind rage. They insisted his alibi was "too" good. Two gas stations? Someone really wanted to be seen! (Or someone needed to buy gas right away and then wanted a cold drink after a 30 minute drive? Or someone has a gas rewards card at one station, but that one doesn't carry his favorite drink? Really, for the purposes of putting yourself 30 minutes away from your house, one gas station security camera is plenty.)

So they went with a completely cockamamie story that defies all logic.

They decided that Russ Faria got gas at the one gas station, bought drinks at the second one, drove to his friend's house, left his cell phone there, got these 4 decent people to lie for him, drove home, stripped naked, had sex with his wife (she had some of her husband's sperm inside her, obviously suspicious), then killed her. Then he showered and re-dressed, somehow getting blood only on his slippers. While one of the friends brought his phone back, carefully stopping at the Arby's drive-thru on the way.

So many problems with this theory, of course. The semen in the victim isn't evidence of anything except that the marriage was, um, functional. It was a relatively small sample, consistent with Russ' story that they'd last had sex on Sunday night. (Semen can survive for 72 hours.) I've never seen any reference to the victim being unclothed in any way, which kinda hurts the sex claim. The sex claim by the prosecution was just silly on every level and totally gratuitous. Gratuitous claims are usually the hallmark of a weak case.

Then there's the spurious (and despicable) accusations against Russ' friends. For this story to be true, all four of them had to be part of a murder conspiracy. They would all four have made themselves at least accessories after the fact. The friend who is supposed to have brought the phone to Russ' house and made the Arby's stop is a downright murderer by legal standards. And a fool, because I wouldn't take the risk of going through a drive-thru. At the very least, you're setting up a witness who might remember the guy who picked up two sandwiches at 9 pm. At worst, though, there could be security cameras on that drive-thru. Don't a lot of drive-thrus have cameras? So the people inside the restaurant can see the cars? Wouldn't one think it likely (or at least quite possible) that the feeds from that are recorded, as security camera footage usually is? So that's taking quite a risk that there won't now be evidence of your car or your face being connected to that Arby's receipt. Not to mention, how many people really have 4 friends who would all as a group stick together and lie to help a person get away with murder? Not one of those friends would crack and turn state's evidence against all the rest of them, out of fear that if he didn't, one of the others would? Let me assure you, it would be the rarest of rare 5 person murder conspiracies to have all 5 people stand firm and not one crack and take a deal.

Of course, it doesn't seem like any deals were necessary because none of those 4 people have ever been charged. Probably because deep down in places the prosecutors don't talk about at parties, they know perfectly well that their conspiracy story is utter bunk.

Oh, and then there's the thing that made the police suspect Russ the husband in the first place. The murder was a crime of passion, they said. It was so overdone, the kind of thing that only happens when someone flies into a blind rage against someone he loves. But this story they've concocted is as premeditated a murder plan as they come. So which is it? Crime of passion? Or complex, premeditated conspiracy? Really, if you were going to give yourself this great alibi, wouldn't you make a little effort to make the murder look like a burglary or something?

At this point, I hope you can all see that the state's case is nuts, logic-defying, and, btw, gravely insulting to 4 innocent, never charged persons who did nothing to deserve having their reputations sullied thusly.

And I haven't even gotten to the best part yet.

Remember Pam Hupp? (I did tell you to.) She's the friend of the victim who oh-so-helpfully told the police all about how awful the Faria marriage was and how Russ played the murder game, etc. and etc. and etc. Funny thing about Pam Hupp. Guess who was the beneficiary of Betsy Faria's life insurance policy? Her husband? Nope. Her minor children? Nah. Mother? Sister? Don't be silly. The beneficiary of Betsy Faria's life insurance policy was: Pam Hupp! To the tune of $150,000.

Apparently, Pam got Betsy to switch over her life insurance just days before she died. Pam swears it was for the kids, because Betsy didn't trust Russ to be responsible with the money. But funny thing, she apparently shouldn't have trusted Pam, either. Just prior to trial, the detective who was going over her trial testimony with Pam told her she really ought to set up a trust for Betsy's kids, as that would look better to the jury. Give credence to Pam's claims that the insurance transfer was legit, meant to protect Betsy's children (who so far hadn't seen a dime). Pam swore she would. But as of the Dateline episode, the family members who now have the children still hadn't heard word one about a trust.

So it would seem Pam might be someone to look at, just based on motive alone. But there's something else you might want to know. Guess who was the last person to see Betsy Faria alive? I'll save you the trouble: it was Pam Hupp. Pam drove Betsy home that evening, well after Russ was at game night. Pam had some trouble remembering whether she came inside or not, whether Betsy walked her to the door or not, etc. She made a call to Betsy that Betsy didn't answer. This call was ostensibly to let Betsy know Pam had gotten home safely. But it went through the cell tower right by Betsy's house... Raising the notion that the phone call was a fake because not calling would make it seem like she already knew Betsy was dead.

Now for the real kicker. The jury didn't get to hear anything about the insurance, meaning Pam's possible motive for killing Betsy. The district court ruled it inadmissible, citing this odd old rule that a defendant can't introduce circumstantial evidence of a third party's motive for committing the crime without having some evidence to tie the third party to the actual crime. Kinda makes it hard for a defendant to create reasonable doubt if the defendant can't point to all the other people who might have had a reason to commit the crime, no?

Missouri is actually not alone in having this prohibition against SODDI evidence. (SODDI = some other dude did it.) Mercifully, Kansas has largely abandoned the prohibition, though. But we already knew Kansas is way better than Missouri. I digress.

Regardless of whether the SODDI prohibition is valid, though, the district court blew it on this one, for two reasons. First, there is direct evidence to connect Pam Hupp to the crime: she was at the crime scene around the time of the murder. She dropped Betsy off sometime around 7, the first missed phone call was around 7:20, and emergency responders arrived after 9:40. They noted signs that Betsy had been dead for some time (as in 2-2 1/2 hours). So Pam was at the crime scene at the right time. I've got a lot of clients in prison who were told that was plenty to connect them to a murder. So even under the SODDI rule, the insurance evidence should have come in.

The thing that has always bugged me the most about this SODDI rule, though, is that circumstantial evidence is more than enough to prosecute someone. If a prosecutor charged Pam, that prosecutor would have no bar at all to introducing all that stuff about Pam.The prosecution can present whatever cockamamie theory they can come up with, then say because this is their theory, the defense can't present this other sensible information.

The insurance evidence should have come in for a separate reason, though. Cross-examination is supposed to be a wide-ranging opportunity to question the credibility of the witness against the defendant. Pam was a pretty key witness for the prosecution. She had a pretty strong bias in not wanting any insurance company sniffing around her big payout. It was definitely in her best interest that Betsy's murder be solved and be solved in a way that absolved her. This would be true even if she had nothing to do with Betsy's murder herself, so pointing this out to the jury isn't technically the same as trying to present her as a SODDI option. The defense should absolutely have been allowed to cross-examine her on this.

It's no secret what the defense thinks happened: Pam killed her and did all she could to make sure Russ took the fall so she'd get the cash. The defense thinks she picked up Russ' slippers and touched them to Betsy's blood, which would explain why nothing else in the closet with the slippers was bloodied. That would make at least as much sense, if not more, than Russ stripping naked, except for his slippers. Why wouldn't he have had the Arby's buying buddy take the bloody slippers?

So from what I've gleaned between watching the Dateline episode (even Keith Morrison doesn't seem to think this conviction is solid) and from reading news articles, this is the case against Russ Faria.

I find it horrifying to learn that the jurors all discounted the 4 alibi witnesses. It's not like these 4 people all had criminal records or told wildly different accounts of the evening or cracked on the stand. Nope, they all 4 just consistently said Russ was with them from around 6 to around 9. For this, they were disbelieved by a jury, by Betsy's mother, and by the prosecution. In fact, they were vilified by the prosecution, made a part of a big murder conspiracy in a closing argument long on imagination and very short on fact. On their behalf, I'm offended. As a defense attorney, I'm also offended by the closing argument, which I would have a lot of fun tearing apart under Kansas's prosecutorial misconduct rules.

I find it horrifying that both the investigators and the prosecutors would so doggedly stick to their first assumption that the husband did it rather than investigate other avenues once it became clear his evening was fully accounted for. I find it horrifying that a person can fully account for his evening and yet still be charged with and convicted of murder. I find it horrifying that police, prosecutors, victim's family members, and jurors would slander good people just trying to tell the truth without one shred of evidence.

I will find it horrifying if this travesty of a conviction isn't overturned on appeal.