Kaushal Niroula and his co-defendant Daniel Garcia allege that Riverside County Superior Court Judge David B. Downing refused to handle paperwork because it had been touched by Niroula, who is HIV-positive. Niroula is one of six men convicted of murder, but the case may be thrown out due to the judge’s apparent bias.
Niroula is one of the men behind a plot to murder 74-year-old Clifford Lambert of Palm Springs in December 2008, then burying his body in the desert. Lambert was a wealthy gay art dealer and was targeted because of his lavish trove of money. All six men were found guilty of various charges including murder, voluntary manslaughter and conspiracy during the 2012 trial. Judge Downing allegedly refused to touch Niroula’s pro se motions because he believed the envelopes containing the paperwork had been sealed using Niroula’s saliva.
“Lord knows where his tongue has been” Judge Downing can be heard saying in an audio recording made during a break for the jury selection at co-defendant Garcia’s trial.
Portions of the recordings — which Judge Downing confiscated in 2012 — included confidential information, but select segments of the recordings were recently leaked once more by the Desert Sun. The microphones had been turned off when the judge made the off-color remark, but co-defendant Garcia recorded it using his laptop. Audio recordings are not explicitly banned during court proceedings in the United States, and Garcia says that he recorded the proceedings for about seven weeks.
Earlier this year, an independent counsel determined that the comment was relevant to the credibility of the case and that it needs to be re-opened.
Judge Downing was confronted about the comment twice, according to official court transcripts. Niroula confronted the judge via an appeals court last year. “I don’t care what you think,” Downing stated in a response. “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.”
And this isn't the first time Judge Downing has come under fire for discrimanatory practices. In one of his highest profile cases, Downing ruled in favor of law enforcement practices that target homosexuals, despite homophobic remarks made by the officers involved. This is certainly disturbing considering Judge Downing’s jurisdiction covers Palm Springs, a city with one of the highest populations of LGBT citizens, many of whom are living with HIV.
In the Warm Sands case, police were recorded making homophobic comments during a gay sex sting operation. In June 2009, the Palm Springs Police Department cracked down on a known gay rendezvous area in the Warm Sands neighborhood. Fourteen men were arrested with misdemeanor charges. Police Chief David Dominguez resigned after he was caught calling the gay men as “some filthy [expletives].” Sgt. Bryan Anderson was also caught using a homophobic slur during the sting operation. Judge Downing upheld the case’s ruling in February 2011, stating that the case wasn’t discriminatory, despite having been presented with ample evidence proving otherwise. Some of the men were able to lower their charges, but to date, only one man was able to get his entire case erased.
Despite the outcome, the Warm Sands case has been universally condemned by the local community of Palm Springs. Bias in a judicial setting can dissolve an entire court case, including murder cases. Just look at the O.J. Simpson trial. Los Angeles Police Department Detective Mark Furman was caught making a racist comment, causing the entire prosecution to fall apart. Any perceived bias in court is unacceptable.
HIVphobia and AIDSphobia constitutes a clear and present danger for any American living with HIV or AIDS, whether he or she is guilty of the crime or not. Despite the seriousness of the trial, bias shouldn’t exist in a judicial setting. Niroula and three of the other convicted men are currently preparing for retrial.