In secret recording, judge says licked envelope from HIV-positive murder suspect is 'gross'

PALM SPRINGS, Calif. – A Riverside County judge was secretly recorded calling two murder defendants “assholes” and “clowns,” then bragging he intentionally strengthened the prosecution's case because it would be “great” if the suspects were convicted.

The judge was also caught saying that it was "gross" that a gay, HIV-positive suspect had filed court motions in envelopes that were licked closed.

Riverside County Superior Court Judge David. B. Downing, now retired, made these statements during the 2012 trial of Kaushal Niroula and Daniel Garcia, who were both later convicted and sentenced to life in prison, according to recently filed court records that confirm the judge’s comments for the first time. The Desert Sun also obtained a copy of some of the recordings, which match the new court documents, on Tuesday.

Downing's statements were made while the trial was on a break and the courtroom microphones were off, but Garcia had left a laptop recording in the courtroom, capturing the judge’s private conversations with his staff.

During one of those exchanges, Downing said he would deny a motion to sever the case into separate trials for each defendant, even though he knew this was “improper,” because a single trial would allow prosecutors to turn the suspects against each other.

“It’s every prosecutor’s dream,” Downing said, according to the new court documents. “He’ll take the stand and say, it wasn’t me. It was him. The other one will take the stand and say it wasn’t me, it was him. Then the jury convicts them both. That’s great. That’s why I won’t sever anything. Screw that.”

This statement, which is being reported for the first time in this story, threatens to undo convictions for the murder of Clifford Lambert, a 74-year-old Palm Springs socialite who vanished in 2008. Prosecutors say Lambert was preyed upon by a group of Bay Area con men who wooed him with the promise of romance and money, then stabbed him to death in his kitchen, stole his identity, emptied his bank accounts and even tried to sell his house. Six men were ultimately convicted in the plot after one of the suspects confessed and re-enacted the murder for law enforcement.

But now four of those men – Niroula, Garcia, Miguel Bustamante and David Replogle – are appealing their convictions, arguing that Downing’s statements reveal a clear bias in favor of prosecutors. Judges swear to be impartial when they take the bench.

The defendants also claim that Downing has shown prejudice against gay men because of the homophobic comment that also was captured in the secret recordings. All four of the defendants are gay or bisexual and all four were convicted in Downing’s courtroom.

The homophobic comment occurred when Downing said he did not want to touch an envelope that the court had received from Niroula, who was defending himself and submitting motions by mail. After Downing’s clerk said that Niroula “likes licking envelopes,” the judge responded by pointing out the defendant is HIV-positive.

"Oh gross, and he is HIV positive. God knows where his tongue has been," Downing said, according to the recording obtained by The Desert Sun. "Never mind. Sorry, it's a cruel world folks."

This statement was first alleged in Niroula's appeal, which argued that Downing showed an unacceptable bias by ignorantly mocking his disease and perpetuating stereotypes about the promiscuity of gay men. An appeals court sided with Niroula last year, flipping the legal burden onto the Riverside County District Attorney's Office, which must now decide whether or not to defend the conviction.

PRIOR STORY: Judge's secretly recorded HIV insult could undo Palm Springs killers' convictions

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Elaine Bentley, an assistant district attorney, said Monday that prosecutors haven't decided how to respond to the appeals because they have yet to review all of the Downing recordings, some of which are still held by the court.

What they've heard so far, however, is not good.

"Although the District Attorney’s Office is ethically restricted in the comments it can make on pending litigation ... we are deeply troubled by and do not condone the improper comments made by the trial judge," Bentley said in an email statement. "We take very seriously our obligation to ensure that the rights of the defendants and the victims are protected and that above all justice is done."

Downing worked as a prosecutor at the DA’s office for 25 years before becoming a judge in 2006. He retired in 2013, but returned to the bench part-time in 2015. Downing remained on a roster of retired judges who can be reinstated to fill vacancies as recently as February, when he left the roster voluntarily, said Cathal Conneely, a spokesperson for the Judicial Council of California.

Downing's statements have been a closely guarded secret in Riverside County courts ever since 2012 when the recordings were discovered and then immediately seized and sealed by the judge himself. Today, the original files are locked in an exhibit vault and any attorney who has a copy is forbidden to talk about what they heard. Until recently, the only public allegations against Downing had come from mouths of killers and con men, and those claims couldn’t be verified because the recordings remain out of the public’s reach.

But all of that changed late last month, when Downing’s statements were finally revealed in a sworn declaration filed by the Los Angeles federal public defender’s office, which is representing Replogle in his appeal. Marla Beller, a public defender’s paralegal, transcribed a portion of the recordings for the court, providing the first confirmation of the judge’s statements to come from someone who is not a convicted murderer.

The Desert Sun also received a copy of some of Downing's statements from the family of Garcia, the convicted murderer who made the original recordings. Although the recordings were seized, Garcia has maintained secret copies for years. The authenticity of the provided copy was verified through comparison with the new court records.

Some of Downing’s most problematic comments were related to a motion to sever the trials of Niroula and Garcia, meaning the defendants would be prosecuted separately in front of different juries.

Niroula filed the motion to sever the trial after it was discovered that the Riverside County Sheriff’s Department had eavesdropped on confidential phone calls he made from jail to his lawyer shortly after his arrest, then turned recordings of those calls over to prosecutors. The prosecutors claimed Niroula was wiretapped by mistake, then they released the recordings to the defendants.

But, because the recordings went to both defendants, Garcia was now privy to confidential conversations about Niroula’s defense strategy. So Niroula filed his motion to sever the case, arguing that the only way for him to get a fair trial was to be prosecuted on his own.

In the secret recording, Downing can be heard saying that, in addition to helping prosecutors, denying the motion would mean less work for the court, even though the convictions were at risk for being overturned on appeal.

“Yeah, it’s improper. But are we going to dismiss the case against Garcia? No. Are we going to dismiss the case against Niroula? No. Why separate them?” Downing said.

“The fact is that if I sever them, then it means that we have to try this twice. If I don’t sever them and we go to trial, then it could be reversed and I have to try it twice. So what’s the downside to us? There is none. Try the case anyway, then the Appellate Court goes 'Oh my God.'"

Deputy Public Defender Moriah Radin specifically attacks this statement in Replogle's appeal, arguing that it exposes how Downing was prioritizing his own interests over the fairness of the trial.

“Judge Downing did not keep an open mind about pending issues,” Radin wrote in court records. “He would not sever the trial, acknowledging it was improper to try them together, because there was not benefit to him in granting the severance.”

Downing declined to comment when reached on his cell phone last week.

During an interview with The Desert Sun last year, Downing said he did not remember making homophobic comments about Niroula and insisted that all of the murder suspects were given the “fairest trial ever – and then some.”

Court transcripts show Downing was twice confronted with the recordings in court – once by Niroula, once by Garcia – and both times defended his statements as free speech.

“The First Amendment protects judges,” Downing said. “The Commission on Judicial Performance doesn’t say that, but in my view, it does. I can say what I want …”

Radin declined to comment on the case. Garcia is in between attorneys and therefore has no current legal representative. Niroula's attorney, Shaun Sullivan, said Downing's statements offered a worrisome peek behind the curtain of the American justice system.

"The judge's commentary reveals the ugly truth that you don't always get a fair trial in this country," Sullivan said. "Thankfully in this case we can do something about it."

*This story was updated on Thursday with a statement from Shaun Sullivan.

MORE FROM THIS REPORTER: The Coldest Case – A true crime series in five parts

Investigative reporter Brett Kelman can be reached at 760 778 4642 or by email at brett.kelman@desertsun.com. You can follow him on Twitter @tdsBrettKelman.

The Clifford Lambert murder case stretches for nearly a decade, and appeals will likely continue for years to come. Here is a timeline covering the case from before the murder until present day.

April 2008 – Clifford Lambert, 74, a lonely Palm Springs resident, looks for romance online. He meets Daniel Garcia, 25, of San Francisco, and flies him to the desert for a visit.

– Clifford Lambert, 74, a lonely Palm Springs resident, looks for romance online. He meets Daniel Garcia, 25, of San Francisco, and flies him to the desert for a visit. October 2008 – Garcia and his friend, Kaushal Niroula, hatch a plan to kill Lambert, steal his identity and empty his bank accounts. They named the plot "Operation Craigslist."

– Garcia and his friend, Kaushal Niroula, hatch a plan to kill Lambert, steal his identity and empty his bank accounts. They named the plot "Operation Craigslist." Dec. 4, 2008 – Niroula lures Lambert out of the house by pretending to be an attorney representing an old friend who left him money in his will. While Lambert is out, two hit men, Miguel Bustamante and Craig McCarthy, sneak into the house to prepare an ambush. However, they back out when Lambert comes home.

– Niroula lures Lambert out of the house by pretending to be an attorney representing an old friend who left him money in his will. While Lambert is out, two hit men, Miguel Bustamante and Craig McCarthy, sneak into the house to prepare an ambush. However, they back out when Lambert comes home. Dec. 5, 2008 – Niroula, Bustamante and McCarthy return to Lambert’s house to try again. Lambert is stabbed to death in his kitchen.

– Niroula, Bustamante and McCarthy return to Lambert’s house to try again. Lambert is stabbed to death in his kitchen. Dec. 6, 2008 – Bustamante and McCarthy bury Lambert in the desert outside of Indio.

– Bustamante and McCarthy bury Lambert in the desert outside of Indio. Dec. 7, 2008 – One of Lambert’s friends reports him missing to Palm Springs police.

– One of Lambert’s friends reports him missing to Palm Springs police. Dec. 11, 2008 – Niroula has an attorney, David Replogle, impersonate Lambert so they can begin to empty his bank accounts.

– Niroula has an attorney, David Replogle, impersonate Lambert so they can begin to empty his bank accounts. J an 7, 2009 – Bustamante is caught at Lambert’s home, loading the missing man’s belongings into a U-Haul. He is arrested for burglary. While in jail, he tells his cell mate about the murder plot. The cell mate informs police.

– Bustamante is caught at Lambert’s home, loading the missing man’s belongings into a U-Haul. He is arrested for burglary. While in jail, he tells his cell mate about the murder plot. The cell mate informs police. March 2009 – Niroula, Garcia and Replogle are arrested by police.

– Niroula, Garcia and Replogle are arrested by police. July 2009 – Police interview McCarthy, who agrees to cooperate. He reenacts the murder on video for prosecutors and tries to lead police to Lambert’s body, although he cannot find it.

August 2009 – Russell Manning, an art dealer who helped Niroula and Replogle steal Lambert’s assets, is extradited to California from Mexico. He is also arrested.

– Russell Manning, an art dealer who helped Niroula and Replogle steal Lambert’s assets, is extradited to California from Mexico. He is also arrested. February 2010 – Manning pleads guilty to fraud charges and is sentenced to several years in prison.

– Manning pleads guilty to fraud charges and is sentenced to several years in prison. August 2010 – McCarthy, the hit man who cooperated with police, takes a plea deal and is sentenced to 25 years in prison

– McCarthy, the hit man who cooperated with police, takes a plea deal and is sentenced to 25 years in prison January 2011 – Bustamante, the other hit man, and Replogle, the attorney who impersonated Lambert, are each convicted of murder in a trial before Riverside County Judge David Downing.

– Bustamante, the other hit man, and Replogle, the attorney who impersonated Lambert, are each convicted of murder in a trial before Riverside County Judge David Downing. Summer, 2012 – Niroula and Garcia, the masterminds of the murder plot, are preparing to defend themselves at a trial in front of Judge Downing. Garcia begins secretly recording court proceedings with a laptop.

– Niroula and Garcia, the masterminds of the murder plot, are preparing to defend themselves at a trial in front of Judge Downing. Garcia begins secretly recording court proceedings with a laptop. June 20, 2012 – Garcia is caught secretly recording his trial. Downing orders the recordings seized and sealed.

June 21, 2012 – Garcia meets with Downing, trying to convince the judge to recuse himself because of his recorded comments. Downing defends his statements, saying they are “privileged” and protected by the First Amendment.

– Garcia meets with Downing, trying to convince the judge to recuse himself because of his recorded comments. Downing defends his statements, saying they are “privileged” and protected by the First Amendment. July 16, 2012 – Niroula confronts Downing on the recording in open court, saying the judge’s statement are “inappropriate.” Downing responds with “I don’t care what you think. I can say what I want.”

– Niroula confronts Downing on the recording in open court, saying the judge’s statement are “inappropriate.” Downing responds with “I don’t care what you think. I can say what I want.” December 2012 – Niroula and Garcia, both convicted of murder, are sentenced to life in prison.

– Niroula and Garcia, both convicted of murder, are sentenced to life in prison. March 15, 2013 – Judge Downing retires, but remains on a roster of retired judges who can help cover small cases.

– Judge Downing retires, but remains on a roster of retired judges who can help cover small cases. Sept. 18, 2015 – Niroula files a petition for writ of habeas corpus, seeking to reverse his conviction because of Downing’s recorded statements. The California Department of Justice opposes the petition, but does not confirm or deny what Downing said.

– Niroula files a petition for writ of habeas corpus, seeking to reverse his conviction because of Downing’s recorded statements. The California Department of Justice opposes the petition, but does not confirm or deny what Downing said. April 2016 – The Fourth District Court of Appeals sides with Niroula, ordering the county court to hold a hearing on why Niroula should not be granted a new trial. Soon after, three other defendants – Garcia, Replogle and Bustamante – piggyback on Niroula’s appeal, also seeking new trials.

– The Fourth District Court of Appeals sides with Niroula, ordering the county court to hold a hearing on why Niroula should not be granted a new trial. Soon after, three other defendants – Garcia, Replogle and Bustamante – piggyback on Niroula’s appeal, also seeking new trials. February 2018 – Downing removes himself from a roster of part-time judges.

– Downing removes himself from a roster of part-time judges. March 20, 2018 – Marla Beller, a paralegal with the Los Angeles public defender’s office, files a sworn declaration transcribing some of Downing’s recorded comments. This is the first independent confirmation of Downing’s homophobic and bias statements.

– Marla Beller, a paralegal with the Los Angeles public defender’s office, files a sworn declaration transcribing some of Downing’s recorded comments. This is the first independent confirmation of Downing’s homophobic and bias statements. April 9, 2018 – The Riverside County District Attorney’s Office says it has yet to decide how to respond to the defendants’ appeals, but that it is “deeply troubled and (does) not condone the improper comments made by the trial judge.”

Source: Riverside County court records, Desert Sun reporting