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Accused of bias, judge declines to drop case involving IMPD officer’s murder

INDIANAPOLIS (WISH) — A judge on Thursday refused to step aside after being accused of showing bias on a death penalty case involving the shooting of an Indianapolis police officer in April 2020.

Officer Breann Leath of Indianapolis Metropolitan Police Department was shot and killed while responding to a domestic dispute just after 2:45 p.m. April 9, 2020, in the 1800 block of Edinburge Square at an apartment complex southeast of the I-70 interchange with I-465.

Elliahs Dorsey, 28, of Indianapolis, is charged with a count of murder, four counts of attempted murder, a count of criminal confinement, and a county of battery resulting in bodily injury. A jury trial has been set for September in the case.

The Marion County prosecutor on March 28 called for a Judge Mark D. Stoner to recuse himself after his comments during a March 17 preliminary pretrial hearing. The prosecutor says Stoner demonstrated bias and prejudice that would prevent a just resolution in the case.

Dorsey and his attorneys on Jan. 23 asked the judge to drop the death penalty claiming Dorsey did not know Leath was a police officer when he fired shots.

Prosecutors argued March 17 that it’s a decision to be made by a jury, not the judge before evidence is presented at a trial.

During the March 17 hearing, the judge disagreed, citing “super due process,” which is an expansion of due process for death penalty cases. As an example of “super due process,” the judge noted Indiana law requires defendants facing a possible death penalty have attorneys who have experience in capital punishment cases.

According to a transcript, the judge said during the hearing, “The question I’m circling all the way back to, going back to the rules of professional responsibility ~, is, uh, I have concerns that if the State of Indiana is not able to prevail in good faith that the defendant had actual knowledge that the officer was a police officer at the time that he fired the shots, I am concerned about, uh, a prosecutor with that knowledge using in any way the death penalty as a plea bargaining leverage as to whether or not that complies
(inaudible) with the rules of professional responsibility 3.8.”

Stoner added, according to the transcript, “And I have grave concerns under the ethical rules, whether or not a prosecutor can bring a criminal charge with a factor of a death penalty in which there is, uh, uh, very little or no direct evidence on the point.”

Prosecutors on March 17 had cited a memo and a 911 dispatcher’s comments mentioning an officer was responding, but the judge cited a lack of “direct evidence.” Stoner said such “direct evidence” should have been presented in the March 17 hearing but suggested scheduling another hearing to address his concerns. However, no additional hearings had been set by Thursday, according to online court records.

Also during the March 17 hearing, Stoner also suggested he may refer the prosecutor’s office for disciplinary action.

The prosecutor said in the recusal request that if the judge rules before the trial to drop the death penalty, the ability to prosecute the case would be compromised.

Mears also says in the recusal request that Stoner’s comments about his concerns for a potential plea agreement prohibit prosecutors from seeking such a deal, and are “particularly troubling” because they imply prosecutors acted in bad faith to seek the death penalty.

The judge could refer the prosecutor’s office for disciplinary action.

The judge wrote in Thursday’s order denying his recusal:

“1. A disagreement over whether court has power to hold a hearing to address a motion raised by the Defense is not grounds for recusal. Nor is the State’s fear that the Court may grant a motion adverse to the State’s position grounds for recusal. These are disagreements on legal issues and not evidence of bias or prejudice.

“2. The State has incorrectly asserted that the Court at the March 17, 2023, hearing, sua sponte raised ethical issues against the State under Indiana Rules of Professional Responsibility 3.8. The Defendant raised this issue in its pleading #75 on March 15, 2023. As with any issue raised by either side, the Court has a duty to have the parties address the issue, particularly if the issue is an ethical one. Contrary to the State’s position, the Court cannot ignore the issue.

“3. The State is incorrect when it says it cannot proceed because of the ethical issues raised. First, the Court did not put the State in this position. The State has a duty  to comply with the Rules of Professional Responsibility at all times. Second, if the Court ultimately rules against the State on the legal and ethical issues raised by the Defense, and the State believes the Court is wrong on the facts or the law, the State is free to appeal the Court’s ruling. The Court again emphasizes that it has not reviewed the exhibits and caselaw submitted by the parties on the issues raised, and a recusal motion, made in anticipation of an adverse ruling, is inappropriate.”

Judge Mark D. Stoner, Marion Superior Court 32

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