REDWOOD CITY -- Prosecutors will appeal a judge's decision which tossed out the murder charge against a man believed to have shot and killed an East Palo Alto community leader in 2010, officials said Tuesday.

San Mateo Superior Court Judge Stephen Hall dismissed the charge Nov. 6 against Gregory Elarms, 60, of Pittsburg, ruling police illegally collected his confession to David Lewis' killing.

District Attorney Steve Wagstaffe said he believes it was an "erroneous" ruling and the confession should be evidence at trial. The Attorney General's Office will file the appeal, as required by law, within 60 days from Hall's decision. The appeals process is expected to take 12 to 18 months, Wagstaffe said.

Lewis, who cofounded a revolutionary drug treatment center, was shot once in the abdomen June 9, 2010 as he walked in the parking at Hillsdale Shopping Center in San Mateo. The case went unsolved until, roughly six months later, when Elarms called San Mateo police and said he had information about the killing. He later confessed to the firing the fatal shot, but a motive remains unclear.

Hall ruled detectives violated Elarms' Fifth Amendment right against self-incrimination when they ignored or brushed off his repeated requests for an attorney. Prosecutors say investigators acted lawfully because Elarms was not under arrest during the questioning so wasn't due the legal protections for suspects in police custody.


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Defense attorney Jonathan McDougall said Hall made the correct decision and added the confession is illegal.

"Any time someone repeatedly asks for an attorney, there are some serious concerns when law enforcement ignores those requests," said McDougall.

Also on Tuesday, prosecutors filed new charges against Elarms in an effort to keep him behind bars as the appeal advances. Because the murder charge was dismissed against Elarms, he could be released on bail. Based on three new charges of having a weapon in jail, bail was set at $150,000, said Wagstaffe. Elarms remained in custody.

Contact Joshua Melvin at 650-348-4335. Follow him at Twitter.com/melvinreport.