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Judge throws out murder charge in Lewis killing

Police violated defendant Gregory Elarms' Miranda rights, judge rules

Gregory Elarms Sr., the man accused of gunning down East Palo Alto community activist David Lewis in a Hillsdale Shopping Center parking garage in 2010, had his murder charge thrown out by a San Mateo County Superior Court judge Tuesday.

The court granted defense attorney Jonathan McDougall's request to dismiss the murder charge and a charge of being a felon in possession of a firearm. Judge Stephen Hall threw out Elarms' confession on the grounds that San Mateo police violated his Miranda rights when they continued to interrogate him after he repeatedly requested an attorney.

The judge also found the remaining evidence presented to the grand jury was insufficient, requiring dismissal of both charges. The court let stand a third count of felony possession of a weapon in jail.

Police said on June 9, 2010, Elarms laid in wait for Lewis at San Mateo General Hospital where Lewis worked and followed him to the shopping center where he confronted him and shot him once.

Lewis was a well-known community activist who helped found the Free At Last drug rehabilitation program in East Palo Alto and was instrumental in starting the successful parolee reentry program. The two knew each other as youths in East Palo Alto.

The killing stumped police for six months until Elarms met with investigators claiming he had information about the crime. He allegedly made statements to police that inculpated himself in the crime.

Judge Mark Forcum found Elarms incompetent to stand trial, and in July 2011, ordered him hospitalized. The court later ruled he could be treated by the hospital involuntarily if necessary.

Atascadero State Hospital doctors found Elarms competent in May. Judge Lisa Novak ruled on Aug. 22 that he is now competent to stand trial with the aid of medication. Elarms tried to fire his attorney, McDougall, who had argued in August that he was still not competent. The court did not allow the change of attorney.

San Mateo County District Attorney Steve Wagstaffe's office said the defense did not raise the issue of insufficient evidence to the grand jury in its dismissal motion, and it was not argued during arguments on Monday. The dismissal was over the prosecution's objection.

The case was continued to Nov. 13 for further proceedings on the remaining weapons charge. The judge did not allow a prosecution request to discharge the more than 100 prospective jurors returning Tuesday morning. Prosecutors had asked to dismiss the jurors since a questionnaire informed jurors that the defendant was charged with murder.

A defense motion for bail was also denied and Elarms remains in custody on no bail status.

Prosecutors have not decided if they will appeal the court's ruling. McDougall could not yet be reached for comment.

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