Judge’s anti-HIV bias could unravel murder convictions and open many other cases

"Lord knows where his tongue has been," the judge allegedly said.

Murder defendants Kaushal Niroula and Daniel Garcia. CREDIT: Riverside County sheriff's department via The Desert Sun
Murder defendants Kaushal Niroula and Daniel Garcia. CREDIT: Riverside County sheriff's department via The Desert Sun

A retired California judge allegedly refused to read motions from a defendant charged with murder because he was HIV positive and would have licked the envelope in which the documents were sealed. “Lord knows where his tongue has been,” Riverside County Superior Court Judge David B. Downing allegedly said during the trial in 2012.

Now, thanks to secret recordings the defendant made — since sealed by the court — that defendant could get a new trial. If he does, many of Downing’s other cases may be open to new scrutiny as well.

Kaushal Niroula and Daniel Garcia were two of six men who were either convicted or confessed to conspiring to con — and ultimately murder — a lonely rich socialite. They chose to defend themselves in court, which meant that when the court took breaks, they were taken back to holding cells and had no representative in the courtroom during those periods of time. But Niroula had been secretly recording the proceedings for some seven weeks on his laptop, which remained running in the courtroom during those breaks.

Niroula was caught and the recordings seized, but not before both men had listened to the exchange when Downing allegedly said he refused to interact with envelopes the gay, HIV-positive man may have licked. What is captured in the court transcript, however, is an exchange in which Garcia confronted Downing about making the remarks. The judge never denied making them, and in fact argued, “The First Amendment protects judges.” When Niroula confronted him in court a few weeks later, he offered the same counter: “I can say what I want. The First Amendment protects me.”

As the Desert Sun explains in its detailed reporting, the breadth of the recordings is such that they captured a variety of different kinds of confidential conversations, so there’s technically no one who can listen to them all without hearing something they legally aren’t allowed to hear. It was only last year that the court appointed an independent attorney to listen to the recordings and sort out the confidential parts, and now, a growing number of portions of the recordings are being released to attorneys.

Downing told The Desert Sun he doesn’t remember what was said in the trial. “Off the top of my head, I didn’t say that stuff.”

There is still more to unearth, and as attorneys prepare to return to court next week to schedule arguments, it’s unclear what impact the recordings could have on the fates of Niroula, Garcia, and their other four conspirators, or on the reputation of the retired judge. If Downing is confirmed to have expressed bias in this case, it could impact other cases too.

Downing also oversaw the controversial 2009 “Warm Sands” case, in which a Palm Springs police public-sex sting exclusively targeted gay men. Though officers were caught disparaging the gay men, and though they had not arrested any straight people for the same behavior, he ruled that the case wasn’t discriminatory. Attorneys who worked on the case told the Desert Sun that the anti-gay and anti-HIV comments Downing made in the murder case about a year later could explain the reason he was unsymapthetic to the clear discrimination that took place in the sex sting case.