INDIANAPOLIS — Marion County Prosecutor Ryan Mears’ motion to force recusal of a Superior Court judge overseeing a pending death penalty case is seen as a tactical move to preserve future options in case the Court deals the State more setbacks in the courtroom according to a legal scholar.

”He’s pitched his case now and if it keeps happening, he’s got a stronger case later,” said Professor Charles Geyh of the Maurer School of Law at Indiana University. “Tactically its not a stupid move, but I am just saying right now I think its premature to grant.”

Mears wants Judge Mark Stoner to remove himself from the case as the result of courtroom comments during a hearing earlier this month.

Elliahs Dorsey is facing the death penalty for the April, 2020, murder of IMPD Officer Breann Leath.

Leath and her partners were responding to a domestic dispute involving a man armed with a gun at the Wellington Square Apartments on the city’s eastside.

As officers approached the apartment door, investigators said Dorsey opened fire, fatally wounding Leath.

Last month Dorsey’s attorneys filed a motion to have the death penalty option against their client dismissed on the grounds that he did not know that he was shooting at police officers on the other side of the door.

During a hearing on that motion to dismiss earlier this month, the judge said he was concerned that the death penalty would not be an appropriate sentence if the State could not prove at trial that Dorsey knew he was shooting at police officers.

“I am concerned a prosecutor with that knowledge using in any way the death penalty as a plea bargaining leverage as to whether or not that complies with the rules of professional responsibility.”

In a response filed this week, Mears took exception to the professional ethics and practices of his office being called into question.

“The issue of ‘good faith’ was not the subject of the Defendant’s Motion to Dismiss,” wrote Mears in the Motion for Recusal. “The Court’s comments demonstrate a bias and prejudice against the State’s Request for a Death Sentence.”

Professor Geyh said the prosecutor may be taking a simple but somewhat heavy-handed approach with the judge’s responsibility to asking probing questions of the counsel before the bench.

”He’s got to have the latitude to ask the questions that he wants to ask. The idea that he’s at risk of being thrown off the case every time he asks a question that leads someone out there to say, ‘Well, that seems like a pointed question aimed at questioning a prosecutor’s intent.’ Yeah, sometimes he’ll do that, sometimes he’ll ask questions about the defense attorney’s intent. It just goes with the territory of what judges do.

”But there’s a difference between saying, ‘The judge did something that the judge shouldn’t have done or should’ve asked it differently,’ and saying, ‘The judge is so unfair or partial that he needs to recuse himself from the case.’ There’s a difference there.”

Geyh said typically judges can be removed from cases for conflict of interest or evidence of over bias, not simply for asking probing questions.

Mears and Stoner were unavailable for comment.

Breann Leath’s mother Jennifer told Fox 59 News that she attends all the hearings of her daughter’s alleged killer and supports the prosecutors call for the death penalty upon conviction.