Judge to consider removing DA’s Office from Morro Bay murder case

Correction: This article has been updated to correct an error. San Luis Obispo Superior Court Judge John Trice presided over a March 2015 preliminary hearing.

A judge will decide if a seven-year-old murder case against a former Morro Bay resident will move forward, be dismissed, or whether the District Attorney’s Office will be removed from the case after a defense attorney accused investigators of withholding and misrepresenting facts in order to secure warrants.

In what several courthouse sources say will be a referendum on the murder case against James Victor Lypps, 66, San Luis Obispo Superior Court Judge John Trice on Tuesday will decide whether investigators submitted erroneous or selective information in court documents and whether Lypps’ due process was violated.

The case, which stems from the alleged 2009 drowning murder of Lypps’ wife, Sherre Neal-Lypps, was dismissed by Judge Donald Umhofer in February 2015 for lack of evidence. The San Luis Obispo County District Attorney’s Office refiled a single murder charge, and Trice took over the case, ruling in March 2015 that there was now enough evidence to try Lypps for murder.

Lypps has pleaded not guilty, claiming his depressed and medicated wife committed suicide in a bathtub in the couple’s Morro Bay home.

On June 23, 2009, Lypps reported that he returned home from getting coffee to find Neal-Lypps, 62, submerged in the bathtub, according to a police report. The officer who wrote the report was familiar with Neal-Lypps from prior disturbance calls. According to other documents, neighbors told police the couple fought often, with Neal-Lypps being the aggressor.

Lypps told a fire captain at the scene that his wife had been hospitalized for severe depression and panic attacks two months earlier, and records show she had recently been placed in a psychiatric hospital to protect herself under the state’s 5150 code governing mental health.

As paramedics tried to revive Neal-Lypps, they noticed dark, wide bruises around the front of her neck, near the base, which were reportedly inconsistent with suicide. The San Luis Obispo County Coroner’s Office concluded the cause of death was asphyxiation due to strangulation and drowning, and ruled the death a homicide.

Detectives initially found no suicide note or signs of forced entry. A day after the death, however, Lypps gave investigators two handwritten notes he said he found in Neal-Lypps’ purse. The notes stated that the author was “very depressed” and “ran out of the will to go on.”

The case languished and Lypps wasn’t charged with a crime until December 2014, when Morro Bay Police Department Detective Dale Cullum produced DNA evidence — Lypps’ DNA on Neal-Lypps’ fingernail clippings. Then living in Nipomo, Lypps was arrested on suspicion of murder.

During the February 2015 preliminary hearing, Umhofer dismissed the case, citing lack of a clear motive and no evidence that ruled out the possibility of suicide. But Lypps’ freedom was short-lived; a new murder charge was filed days later and he was again taken into custody at the San Luis Obispo County Jail, where he has been held without bail since. At the time, prosecutors said that they did not have any new evidence against Lypps, but believed the law allows them to continue to pursue the case.

But Lypps’ attorney, Matthew Guerrero, has said investigators flubbed key evidence in order to sway judges to move the case forward.

On Sept. 13, Guerrero filed a motion to have the DA’s Office recused from the case because of a conflict of interest or to have the case dismissed for allegedly violating Lypps’ due process.

According to Guerrero’s motion, the DA’s Office’s own handwriting expert ruled out Lypps as having written the alleged suicide notes.

In her official report, the expert wrote that Lypps “cannot be identified as having written any of the questioned handwriting” and “shows very strong evidence of not having the handwriting skill shown in the questioned writings, which would tend to eliminate him as the writer.”

But according to court documents, statements written by DA’s Office investigator Terrance O’Farrell and approved by Deputy District Attorney Greg Devitt in order to secure search and arrest warrants state that the expert “determined the suicide notes had not been written by (Neal-Lypps, Lypps’ wife).”

“Though the prosecution repeatedly and explicitly states to the court that the decedent was excluded from having written the suicide notes, the actual evidence cited is strikingly different” than those statements made by O’Farrell “in efforts to obtain search warrants and arrest warrants for Mr. Lypps,” Guerrero wrote in his Sept. 13 motion.

“Important to this motion, (Devitt) seemingly knew prior to approving the warrant requests that the information was incorrect,” he wrote.

Guerrero previously used those discrepancies to ask Umhofer to review personnel records for Morro Bay detective Cullum, O’Farrell and two other officers for any record of past dishonesty or false reporting. Umhofer did not find any, according to court records, but acknowledged discrepancies in the DA’s statements about the notes.

Umhofer ruled that Guerrero could refer to the misrepresentation at trial should he wish to attempt to discredit the prosecution’s witnesses.

“There were apparently untrue statements made,” Umhofer said in court at the time. “They weren’t just misquotes.”

In his Sept. 13 motion, Guerrero lists other discrepancies regarding the DNA evidence that Cullum found under Neal-Lypps’ nails. In a March 2014 report, Cullum wrote that the DNA, if proved to be Lypps,’ could “be the crux of this investigation.” In a February 2015 declaration, just before Lypps’ second arrest, O’Farrell wrote that the DNA sample matched Lypps.

O’Farrell failed to note, however, that a forensic criminologist hired by the DA’s Office told him that the “low amount” of Lypps’ DNA found under Neal-Lypps’ fingernail was not unusual for two people who lived together and would not be washed away if submerged in water.

“Clearly, prior to submitting this declaration to the court, (O’Farrell) had spoken to (the criminologist) … and learned that the purported DNA evidence that he references was insignificant,” Guerrero wrote, adding that the criminal process had been “abused” by the misrepresentations, rendering it unlikely Lypps could receive a fair trial.

Guerrero also wrote that certain evidence in the case was no longer available to the defense because of the significant passage of time. The couple’s Morro Bay home, for example, has since been foreclosed and remodeled, and Neal-Lypps’ blood samples have since been destroyed.

In his responses, Devitt wrote that while Cullum’s statement regarding the notes were “not an exact reproduction” of the handwriting expert’s findings, “it is far from amounting to an ‘exceedingly persuasive’ reason to recuse the entire District Attorney’s Office.”

Devitt called Guerrero’s claim that he knew the warrant requests contained erroneous information “patently false.” While Devitt approved at least one of Cullum’s search warrant requests, he wrote that he was reviewing the document for “legal sufficiency and grammatical corrections.”

While Devitt wrote that it “may not have been the best practice” in how O’Farrell described the handwriting expert’s findings, “there was more than enough evidence” to obtain an arrest warrant for Lypps.

“(T)hose inconsistencies have zero evidence of bad faith on the part of (Cullum, O’Farrell and Devitt),” Devitt wrote. “Again, although this may not have been the best practice on the part of the investigators, the harm that was done as a result of their actions is marginally insignificant.”

Should Trice accept Guerrero’s motion Tuesday, investigators involved in the case are expected to testify.

Guerrero and Devitt both declined comment for this article, citing the ongoing proceedings.

This story was originally published October 3, 2016 at 9:02 PM with the headline "Judge to consider removing DA’s Office from Morro Bay murder case."