Democratic lawmaker seeks changes to Marion County judiciary after sentence in IMPD officer’s death

A Democratic lawmaker plans to pursue changes to Marion County’s system for choosing and retaining judges after a man convicted of reckless homicide in the death of an Indianapolis police officer received a sentence widely criticized as too lenient.

State Rep. Mitch Gore, who is a captain at the Marion County Sheriff’s Office, said he will also asked the Legislative Council to convene a summer study committee on the topic of making the crime of reckless homicide a level three felony, which would increase the maximum sentence from six years currently to 12 years.

Marion County Superior Court Judge Mark Stoner on April 4 sentenced Elliahs Dorsey to just more than five years in prison for the death of Indianapolis Metropolitan Police Department officer Breann Leath but gave him credit for good behavior and counted the years already spent in jail since his arrest as time served. Dorsey had been found guilty but mentally ill by a jury for shooting and killing Leath through the door of Dorsey’s apartment on April 9, 2020.

Stoner also sentenced Dorsey to 25 years in prison for the attempted murder of his ex-girlfriend with 15 more years on mental health probation.

Elected leaders, the police union and others swiftly criticized the verdict. Indianapolis Mayor Joe Hogsett issued a statement saying he was “shocked and terribly disappointed” in the sentence, while IMPD Chief Chris Bailey said it failed “to deliver the justice that Officer Leath, her son, and her family deserve.”

Republicans who are usually at odds with Indianapolis leadership joined the uproar.

And a key Republican lawmaker said he’s open to legislative proposals that come out of the case. “Law enforcement agencies around the state have been commenting on this, giving public statements about how disappointed they are. And they don’t do that routinely,” House Judiciary Chairman Chris Jeter, R-Fishers, told IBJ on Friday.

U.S. Sen. Mike Braun, who is running for governor, called the sentencing “disgraceful.” The Indianapolis Fraternal Order of Police, led by President Rick Snyder, called the sentence “lenient” and “a miscarriage of justice.” The FOP is nonpartisan but has endorsed Republican candidates in recent years, including in last year’s race for Marion County prosecutor.

Gore released a statement immediately following the sentence stating that he would “explore all legislative remedies to ensure this never happens again,” including working for a longer sentence in reckless homicide cases.

“When a person is dead and the charge only allows for up to six years, that is a failing with the Legislature and we need to do a much better job at making that charge,” Gore told IBJ.

But he also said Stoner could have done more.

“My beef with the particular sentence was that even though he could have sentenced up to six years on that charge, he didn’t,” Gore added. “And I feel like an officer lost her life, a young mother lost her life, and that particular charge should have been maxed out.”

Gore told IBJ that he’s also considering ways Indiana could enshrine more victims’ rights in state law. He said the Leath family worked well with the Marion County Prosecutor’s Office, but “felt victims of these crimes should have more rights in Indiana than they currently do.”

“We do lag behind the majority of other states in what we guarantee to victims of crimes,” Gore said. “For example, many states say explicitly that victims of crimes have the absolute right to be consulted and heard before and during sentencing hearings, and before and during pretrial release hearings.”

Gore said he has also been in conversation with Snyder of the FOP about the potential for sentence enhancements for crimes against a police officer.

Still, Jeter said lawmakers face a difficult balancing act when deciding how much discretion to give judges. He said that while the Dorsey sentence is is alarming and the legislators will likely toy with the idea of increasing the sentencing or creating mandatory minimums, it’s important that judges maintain the ability to examine the facts and make sentencing decisions based on their own analyses.

“On the one hand, we want to give judges discretion to understand the case in front of them,” Jeter said. “But on the other hand, we can’t be having cop killers walking out of jail, after four years or so.”

Snyder, the union leader, has taken a harsher stance, calling on Stoner to be removed or resign from the bench. The FOP has released a total of five priorities related to the sentence, including the creation of a civilian judicial review committee, much like the civilian-majority IMPD review commission.

Snyder has also requesting that Hogsett create a “commission on criminal justice outcomes,” which he said the FOP has asked for since 2019.

Snyder said the mayor, local state legislators and city-county councilors have been receptive to discussions about changes. Gore, specifically, has been working with the FOP to formulate legislation.

Gore and Snyder want to revisit the process by which Marion County judges are appointed, which differs from most Indiana counties in that voters don’t select judges in partisan races. Instead, a commission recommends judges in a merit-based process, and Gov. Eric Holcomb makes the final selection. Then judges face retention votes after six-year terms.

Snyder said that system—which lawmakers changed just a few years ago—might be the preferred method for good reason, but he believes the six-year terms could be shortened to allow for more public input. Alternatively, he says voters should be given an option to have a recall vote.

Jeter said he’s generally in favor of electing judges. But he acknowledged Marion County’s courts play a different role in the state’s judicial system, because cases involving state agencies and state law are generally heard in Indianapolis, where the state capital is located.

Still, Jeter said, it’s something he’d “like to look at again.”

Gore and a fellow Democrats, though, say they aren’t getting their hopes up that the Republican supermajority will take up legislation reversing judicial elections back to the voters. Gore said it’s an issue that is introduced basically annually, to no avail.

Whatever the outcome may be, Snyder thinks it’s important to note the unity behind potential reform efforts following the sentencing.

“Collectively, across the board, people were aghast at what occurred since the sentence was passed down and there seems to be bipartisan agreement that something has to be done,” Snyder said.

Where did Marion County’s judicial selection system come from?

While most counties put new judges on the ballot, four—Marion, Lake, Allen and St. Joseph—use a commission system that recommends candidates to the governor. The governor then appoints a judge from the three finalists.

Stoner was elected prior to the creation of the current system. He ran and won in 2000 as a Democrat. Still, lawmakers may see the controversy as another opportunity to push for Marion County to receive the same freedom to elect judges that all but four Indiana counties do.

Rep. Ed DeLaney, a retired Indianapolis attorney and a Democrat, said the way judicial selection works in Marion County now was built out of compromise. And, strangely enough, it came out of the Watergate scandal.

In 1974—an election year in which Democrats saw gains across the country as backlash to Nixon’s Watergate—Democrats swept Marion County’s judicial offices. At that time, DeLaney said, Democrats were just glad to have seats. But to ensure that one party didn’t always control the judicial system in Marion County, the two parties came to an agreement: Each party would run just seven candidates for Marion County’s 13 elected slots, resulting in just one competitive race.

In 2015, the U.S. 7th Circuit Court of Appeals ruled the process, which assured an even split of Democratic and Republican judges and facilitated a pay-to-play party slating system, was unconstitutional.

Lawmakers, including DeLaney and several colleagues on the other side of the aisle, were forced to go back to the drawing board. He was a coauthor and supporter of legislation in 2017 that created the current system.

The county is unlikely to go back to a fully elected system, he said. That’s because in heavily-Democratic Indianapolis, the winning judges would likely all be Democrats—something that might not be acceptable to the Republicans who control state government. To Democrats, though, the current system is preferable to an alternative suggested during the 2017 session in which the usually-Republican governor would appoint judges without a commission.

“As a partisan Democrat, I would love to have all of our judges all be elected,” he joked. “But that’s not gonna happen on this planet. You can’t ask the Republican-controlled Legislature to give up on those seats.”

Elsewhere in the state, the commission system has been criticized for preventing the most diverse counties, which also happen to be the most Democratic, from voting on judges.

Early this year, Hammond Mayor Tom McDermott and Democratic state lawmaker Lonnie Randolph joined a former Lake County judge in challenging the process, alleging in a lawsuit that it violated the Voting Rights Act. That challenge was ultimately dismissed by the U.S. District Court for the Northern District of Indiana but could be refiled.

DeLaney was one of few Democrats who supported the commission system when it was instituted. Now he says he recognizes flaws with the system—it prevents voters in the most diverse of Indiana’s counties from selecting their own judges, for example—but he still sees it as the best compromise.

“I’ve tried to think as a lawyer and as a supporter of the system,” DeLaney said. “I do ask, ‘How is this working so far?’ It seems to be working.”