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A Nov. 6 decision to throw out murder charges against accused killer Gregory Elarms Sr. will be appealed in state court by the California Attorney General, San Mateo District Attorney Steve Wagstaffe said Tuesday, Nov. 13.

Elarms is accused of gunning down East Palo Alto community activist David Lewis in a Hillsdale Shopping Center parking garage in 2010. Police said he confessed to the murder.

But San Mateo County Superior Court Judge Stephen Hall threw out Elarms' confession on the grounds that San Mateo police violated his Miranda rights. Police continued to interrogate Elarms after he repeatedly requested an attorney, the court said. Jonathan McDougall, Elarms' defense attorney, had made the request for dismissal.

Hall dismissed a second charge of being a felon in possession of a firearm. He also found the remaining evidence presented to the grand jury was insufficient, requiring dismissal of both charges.

Prosecutors raised objections in court but were overruled.

"We believe the court's decision was erroneous and that the defendant's confession was properly obtained by San Mateo Police Department detectives and should have been found admissible at trial," Wagstaffe said in a statement. He said the evidence gathered by police supports the charges in the indictment.

"Public safety mandates that the defendant be held accountable for the murder of victim David Lewis," he said.

Wagstaffe said the decision to ask the Attorney General's Office to file the case in the California Court of Appeals came after extensive discussions with the office in San Francisco and police.

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

Prosecutors have charged Elarms with three counts of felony possession of weapons in the county jail. He remains in custody on $150,000 bail.

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