Kaushal Niroula, a convicted murderer representing himself in court, and his co-defendant Daniel Garcia, have alleged the Judge David Downing of Riverside County, California, stated of Niroula during jury selection in the 2012 trial “Lord knows where his tongue has been”. Niroula is homosexual and HIV-positive. The man said the judge indicated he feared contracting HIV from envelopes containing Niroula’s pro se motions because Niroula had sealed them with his saliva.
Records show Downing’s microphone was turned off when the comment was made regarding contracting HIV because the court was on a scheduled break, but Garcia made a secret recording on his laptop. The recordings were confiscated by the court and have been sealed for a period of five years. A court clerk stated that Downing planned to deny all of the defendant’s motions in the case.
The judge has since retired and said he couldn’t remember whether he made the alleged comments. “Who knows? I don’t know what was said five years ago,” he said. “Off the top of my head, I didn’t say that stuff.”
Niroula as one of six criminals accused of plotting the murder Clifford Lambert, a rich Palm Springs retiree, in 2008. All men involved either confessed or were found guilty. However, Niroula could be granted a new trial because of judicial bias given Downing’s discriminatory statement regarding contracting HIV.
Niroula raised the judicial bias issue on appeal, and an appeals court remanded the case last year, asking prosecutors to show cause why he shouldn’t receive a new trial. Niroula had confronted the judge in court about the recording. “It is a commentary regarding my health status and not reading my given motions because you are concerned about where my tongue has been are inappropriate, your honor,” he said.
“I don’t care what you think,” Downing replied. “I can say what I want. The First Amendment protects me. I can say what I want. The question is, in this trial, if I have discriminated against you. If anything, I have gone out of my way to help you out, and you know it. Quit taking stuff out of context. In the big picture, I have bent over backwards to help you.”
Downing also stated, “In my heart, I feel I was fair and impartial to both of them. If a new trial is granted to one of them, or both of them, or none of them, the evidence still hasn’t changed.”
He continued, “They stole everything that victim had—including his shoes. They took his life property, they took his house. It was a gross crime. It was horrible.”
Court records show the judge, who worked for twenty-five years as a prosecutor before taking the bench in 2006, was confronted twice while in court regarding the matter and didn’t outwardly deny making the comments either time.
Downing was also a judge on a controversial case regarding a sex sting, in which Palm Springs police officers were criticized in the media for targeting gay men. Despite substantial evidence of discrimination, the judge let the charges stand and the prosecution continue.