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Prosecutor: Judge shows bias in case involving IMPD officer’s murder

INDIANAPOLIS (WISH) — The Marion County prosecutor on Tuesday called for a judge to recuse himself 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 prosecutor’s motion for recusal filed Tuesday says Judge Mark D. Stoner’s comments during a March 17 preliminary pretrial hearing 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 it’s a decision to be made by a jury, not the judge before evidence is presented at a trial.

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, “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 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 evidence should have been presented in the March 17 hearing but suggested scheduling another hearing to address his concerns. However, no additional hearings have been set.

During the 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 his 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.

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