REDWOOD CITY -- A judge dismissed the murder charge Tuesday against a man accused of gunning down East Palo Alto activist David Lewis, saying police illegally obtained a confession from him.
But Gregory Elarms remains behind bars on an unrelated charge while the San Mateo County District Attorney decides whether to refile the murder charge or appeal the judge's decision.
San Mateo County Superior Court Judge Stephen Hall ruled San Mateo police investigators violated Elarms' Fifth Amendment rights when they ignored his repeated requests for an attorney and continued to question him. The confession Elarms eventually gave to police was key in the prosecution case against him for the June 2010 killing in the Hillsdale Shopping Center parking lot in San Mateo.
During the questioning in the car and then at the station, which police recorded, Elarms asked for an attorney or noted his Fifth Amendment right against self-incrimination on at least nine occasions, Hall wrote in his 18-page decision.
"This was not some passing or an isolated comment by (Elarms)," Hall wrote. "Officers did nothing to either confront or clarify issues raised by (Elarms)."
While the ruling is a blow to the prosecution's case, it is not considered fatal. District Attorney Steve Wagstaffe said he is allowed to refile the case or seek an appeal. He said his office had not made a decision yet how to proceed.
"But what is not an option is letting Mr. Elarms go," he said. "We have to fight for justice on this one."
Defense attorney Jonathan McDougall applauded the judge's ruling, which comes as pretrial motions were under way in the case.
"It's satisfying that the court will look at the case and the facts and make a difficult decision," he said.
Elarms, 60, remained behind bars because an unrelated charge -- possessing a weapon while in San Mateo County jail -- is still pending against him. He is due back in court Tuesday, and Wagstaffe said he believes his office will decide by then on its next steps.
Lewis, 54, was walking in the Hillsdale parking lot when he was shot once in the abdomen. Before he died, he told police the killer's name was Greg. Despite having that lead, the case went unsolved for six months. But then, without warning, Elarms called San Mateo police and claimed to have information about the slaying.
Police Lt. David Peruzzaro and Sgt. Rick Decker, at Elarms' request, picked him up at his Pittsburg home in mid-December 2010. Elarms said he was concerned he was being "tracked" and didn't want to talk to police in his home. During the more than 90-minute ride to the San Mateo police station, the officers questioned Elarms but told him on several occasions he was not under arrest.
Authorities have never offered a clear motive for the killing. They have said Elarms believed Lewis, a childhood friend from East Palo Alto, was out to get him. His suspected mental health issues later led to him being committed to Atascadero State Hospital in September 2011. Doctors sent him back to San Mateo County in the spring after deciding he was mentally competent for trial.
Contact Joshua Melvin at 650-348-4335. Follow him at Twitter.com/melvinreport.