UPDATE (4/6/23): The court denied the State’s motion that called for the recusal of Judge Mark Stoner after the prosecutors claimed bias exhibited by the judge.

In the denial, the judge said disagreements in the hearing were over legal issues and were not evidence of bias or prejudice.

Original story follows:


INDIANAPOLIS — Marion County Prosecutor Ryan Mears has filed a Motion for Recusal, calling on the judge overseeing the murder trial of Elliahs Dorsey to step down for alleged “bias and prejudice against the State.”

Dorsey is accused of shooting and killing IMPD Officer Breann Leath on April 9, 2020, when he reportedly fired through an apartment door and shot the officer twice in the head.

The State of Indiana, represented in the filing by Prosecutor Mears, has pushed for the death penalty in the case. Dorsey’s defense has argued against the death penalty, however, stating that Dorsey had thought someone was after him and wasn’t aware it was a police officer at the door when he opened fire.

Court records show the State and the Defense held a hearing with Judge Mark Stoner on March 17 after the State motioned for the death penalty and the Defense motioned to dismiss the death sentence.

The State accuses Judge Stoner of showing “bias and prejudice” against the State in this hearing which “prevents the State from continuing to seek a fair and just resolution to this case.”

According to the new court filing, Judge Stoner expressed concern that the State may not be able to prove that Dorsey was aware a police officer was at his door prior to opening fire and that the State might use the death penalty as leverage to secure a plea bargain.

The State argued that the prosecution intended to present its argument about the justification for the death penalty to the jury, not disclose its argument prior and risk harming their case.

“You may never get to that point, on a death penalty issue, if I don’t have it now,” Stoner said, according to court transcript.

He continued: “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 counsel. And also potentially sending the record over to the board of commissioners in terms of judicial qualifications and professional responsibility.”

Stoner went on to say that he believed a death penalty cannot be filed without evidence. He argued having the death penalty available without evidence and then using it as a plea negotiation tool could create “ethical problems.”

“I am not interested at this point in what there have been ~, what negotiations
have occurred. I am very concerned about this legal issue, whether or not negotiations could occur where part of the negotiation would be the State would drop death penalty in exchange for ~, that’s my concern, that’s my ~, that’s my concern as to whether or not you could legally, ethically do that if there is an absence of evidence that gets you to good faith showing to jury that aggravator exists. That’s what I’m concerned about. So, don’t want to do it ~, the rest of it, cause it would only confirm whatever concerns I have. want to know, just, as an ethical posture, whether or not the government can use the death penalty as negotiating tool if the government lacks good faith to believe the mitigator, specific evidence on the mitigator exists.”

Judge Mark Stoner

The court filing argues that Stoner’s comments now put pressure on the State to dismiss the death request in exchange for avoiding an ethics complaint. The prosecution also argued that Stoner’s comments harm the State from engaging in plea negotiations by implying the State acted in “bad faith” by filing for the death penalty.

The Motion for Recusal concludes by stating: “The Court’s potential referral of an ethics complaint has prejudiced the State’s ability to prosecute this case to completion – either through trial or plea negotiations – without fear of reprisal through a possible referral to the Disciplinary Commission. Recusal is therefore necessary.”