REDWOOD CITY -- A judge's dismissal of murder charges against a man believed to have gunned down an East Palo Alto activist, according to legal experts, was a tough call that revealed some troubling police tactics.

However, it's highly likely prosecutors will either appeal the decision or again file charges against Gregory Elarms, 60, of Pittsburg, in the killing of David Lewis, 54. District Attorney Steve Wagstaffe's office is expected to announce its decision at a Tuesday court hearing on the case, which stems from the June 2010 shooting in a parking lot behind Hillsdale Shopping Center in San Mateo.

The turbulence in the case started last Tuesday when San Mateo Superior Court Judge Stephen Hall threw out the murder charge during pretrial motions. Because police ignored or brushed off Elarms' repeated requests for a lawyer and attempts to invoke his Fifth Amendment rights, the judge ruled that Elarms' confession to the killing was not admissible evidence.

Several experts from Santa Clara University Law School said Hall's decision was a close call.

Normally police have to inform suspects of their rights to remain silent and an attorney -- better known as Miranda rights -- when they are taken into custody. But for Elarms that moment is vague. He is the one who contacted police Dec. 18, 2010, and told them he had information about the killing. Elarms then asked San Mateo detectives, who told him he was not under arrest, to pick him up so they could protect him.


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It was only after Elarms confessed to the killing, after hours of police questioning, that he was read his rights.

Santa Clara Law professor Gerald Uelmen said Miranda rights apply to people in police custody, and Elarms was apparently free to go. Yet police completely ignored his requests for a lawyer or changed the subject when he brought it up. At one point Elarms said he needed "legal advice" but Lt. David Peruzzaro and Sgt. Rick Decker responded by saying they had been working the case hard for the past six months.

"Really ignoring his statements, as if they were never made, is not appropriate," Uelmen said. "They were playing games with this guy."

Prosecutors say police legally collected the confession and added they have additional evidence against Elarms. Chief Deputy District Attorney Karen Guidotti said Elarms' son testified before a San Mateo County grand jury that his father confessed the killing to him. That evidence alone, she said, should allow the case to proceed.

Prosecutors have also argued that Elarms guided the contact with police. Elarms called police, said he had information about Lewis' killing and stated his life was in danger. He wanted police to protect him from "would-be conspirators and assassins," Hall wrote. Elarms was later committed to Napa State Hospital for months because of mental competency issues, though doctors decided in the spring he was well enough for trial.

Lewis was shot once in the abdomen as he walked from his parked car toward the mall entrance on the evening of June 9, 2010. As Lewis lay dying, Officer Steve Robinson recorded him saying his killer was named "Greg." The pressure to solve the slaying, which occurred in the relatively safe Peninsula city, was intense. Though Lewis was a former junkie and stickup man, he later cofounded a revolutionary drug treatment center in East Palo Alto called Free at Last.

Elarms is being held without bail.

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