INDIANAPOLIS — The Marion County Prosecutor has filed a request to have the judge presiding over the case against Elliahs Dorsey recused based on "bias and prejudice" following his response during a hearing to dismiss the death penalty from the case earlier this month.
Prosecutor Ryan Mears filed an Affidavit on March 28, accusing Stoner of showing "bias and prejudice" against the State.
Dorsey is accused of fatally shooting Leath on April 9, 2020, while she and three other officers responded to a disturbance call at an apartment complex in the 1800 block of Edinburgh Square.
The State filed a request to seek the Death Penalty on Jan. 26, 2021, alleging "aggravating circumstances".
According to court documents, the aggravating circumstance for seeking the death penalty is Leath "was acting in the course of her duty as a law enforcement officer."
On Jan. 23, 2023, the Defendant filed a Motion to Dismiss the request for a death penalty sentence "arguing that the request should be dismissed because the State cannot prove beyond a reasonable doubt that the Defendent knew BreAnn Leath was a law enforcement officer," court docs say.
During a hearing on March 17 to dismiss the death penalty against Dorsey, Marion Superior Court Judge Mark Stoner ordered prosecutors to show evidence that Elliahs Dorsey knew Leath was a police officer when he allegedly fired shots through an apartment door and killed her.
Stoner gave both sides until March 30 to provide additional evidence.
Mears' Affidavit, filed two days before that deadline, argues that the State has "satisfied the Court's own standard" for proceeding with a death sentence trial because there was no question whether Leath was in the line of duty at her time of death and there was no question as to who fired the shots that killed her.
"The Court’s comments indicate a willingness to render a final judgment on a very specific factual issue that, by the Court’s own admission, is supported by the Probable Cause Affidavit," the documents read.
Below is an extended excerpt from the Affidavit filed by the Marion County Prosecutor's Office on March 28.
At the March 17, 2023, hearing, the Court also raised, sua sponte, an ethical concern that had not been argued by Defendant. The Court expressed the following:
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.
The issue of “good faith” was not the subject of the Defendant’s Motion to Dismiss, nor was it an issue raised by the defense related to the discovery process or other aspects of the case.
The Court appears to base its concern primarily on the Probable Cause Affidavit and submissions made by the parties at the hearing on the Motion to Dismiss.
The State declined to present evidence because a hearing on a motion to dismiss is not an opportunity to pre-litigate the trial. The State indicated to the Court that it intends to present the issue
of Defendant’s knowledge with regards to the alleged aggravator to the jury at trial and it is not appropriate to consider factual issues during a motion to dismiss hearing, to which the Court responded:
You may never get to that point, on a death penalty issue if I don’t have it now. I am telling you that in my role in dealing with super due process, that I intend to deal with this issue now. Particularly if it is a violation of ethics. Because if the court believes that there isn’t sufficient information to do that, the court would ~, one ~, have to consider removing the death penalty charge, dismissing death penalty qualified counsel. And also potentially sending the record over to the board of commissioners in terms of judicial qualifications and professional responsibility.
Certainly, a Court’s indication that it intends to rule against the State is not in and of itself grounds for recusal; instead, the Court, here, has indicated that it believes that a ruling against the State is effectively the same as finding that the State acted unethically or in bad faith.
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