INDIANAPOLIS — A judge is refusing to recuse himself from the trial of Elliahs Dorsey – the man accused of killing IMPD Ofc. Breann Leath, after a request from the Marion County Prosecutor's Office that he step down.
The issue arises from a hearing on whether or not the death penalty can be pursued.
Dorsey is accused of murdering Leath on April 9, 2020, while she and three other officers were responding to a domestic violence call involving Dorsey.
Marion County Prosecutor Ryan Mears is seeking the death penalty, saying the killing happened while Leath "was acting in the course of duty as a law enforcement officer."
Dorsey's public defenders argue that a defendant can only be sentenced to death for murdering a law enforcement officer if the defendant knew he was shooting at law enforcement.
According to the public defenders, the officers did not announce themselves as the police and that Dorsey said, "that ain't the police" before firing shots through the door.
On March 17, the judge overseeing the case voiced concerns on allowing the death penalty – given the evidence both side have presented at this point. The prosecution and defense were given until March 30 to present more evidence before a decision was made.
Mears' office claims Judge Mark Stoner overstepped when asking for them to prove - before trial - that the case warranted the death penalty. The judge commented that the issue could be a violation of ethics.
Mears' office goes on to point to comments by the judge that there is concern over whether the prosecutor is using the death penalty as a tool for possible plea negotiations. The judge makes the comment at one point that the record of the prosecutor's actions on the death penalty could be sent to the "board of commissioners in terms of judicial qualifications and professional responsibility."
The prosecutor's office argues the judge's remarks "demonstrate bias and prejudice against the State and prevents the State from continuing to seek a fair and just resolution to this case."
It is for those reasons that the prosecutor's office is asking for the judge to recuse himself.
In a response from the judge on April 6, Stoner said a disagreement over whether the court has power to hold a hearing to address a motion by the defense is not grounds for recusal. Stoner goes on to say the court cannot ignore the motion filed by the defense.
Stoner said, "The State has a duty to comply with the Rules of Professional Responsibility at all times." He goes on to say the prosecution can also appeal the court's ruling on the death penalty matter and that, since the court has not yet reviewed the exhibits and case law submitted in the defense and prosecution's arguments, a recusal in anticipation of a ruling is inappropriate.