Judge's secretly recorded HIV insult could undo Palm Springs killers' convictions (2024)

PALM SPRINGS, Calif. – A convicted murdererwho preyed upon a lonelysocialite nine years ago could get a new trialbecause a judge may have been caught in a secret recording saying he ignored court motions submitted by the gay, HIV-positive defendant.

Riverside County Superior Court Judge David B. Downing, who has since retired, was allegedly recorded saying he didn't read motions from Kaushal Niroula specifically because Niroula has HIV and his documents came in envelopes that were licked closed.

“Lord knows where his tongue has been,” Downing said, according to sworn declarations by Niroula and his co-defendant, Daniel Garcia, both of whom say theylistened to the recordings before they were seized by the judge.

The recordings of Downing were made in 2012 while picking a jury for Niroula and Garcia’s upcoming trial. Courtroom microphones were off because the case was on a break, butGarcia’s laptop hadbeen secretly recording the court proceedings for about seven weeks. The recordings were later confiscated by the court and have now been sealed for five years. Only a handful of people have heard them.

However, official court transcripts show that when Downing wasconfronted in court with his statements – twice–he never denied them, instead responding with “I can say what I want.”

And when questioned by The Desert Sun, Downing insisted he couldn’t remember the trial well enough to know what was or wasn’t said.

“Who knows? I don’t know what was said five years ago,” Downing said. “Off the top of my head, I didn’t say that stuff.”

Although the Downing recordings were made five years ago, they have never been more relevant than now, as they threaten the murder convictions of at least one and as many as four men. Niroula, a Bay Area con man, was one of the mastermindsof a plot to murder Clifford Lambert, a rich Palm Springs retiree, in 2008. Six men either confessed or were found guilty in the case, but if Niroula gets a new trial because of judicial bias, convictions could begin to tumble like dominoes.

An appeals court sided withNiroula last year, sending the case back to county court and flipping the legal burden on to prosecutors, who must now decide whether or not to defend the conviction.And three of Niroula’s co-defendants–Garcia,disgraced attorney David Replogle and bartender-turned-assassinMiguel Bustamente – have piggybacked onto that appeal, arguing that Downing’s bias entitles them to a new trials as well.

COLDEST CASE: He was a brazen killer. She was a battered girlfriend. If she talked, she'd die.

These recordings raise alarming questions about Downing, who worked for 25 years as a local prosecutor before taking the bench in 2006. In both jobs, Downing’s jurisdiction covered the Coachella Valley, including Palm Springs – one of the nation’s gayest cities with an above-average rate of HIV and AIDS.

Downing was also the judge on the controversialWarm Sands sex sting case, in which Palm Springs police were heavily criticized for targetinggay men. Despite strong evidence of discrimination, Downing let the charges stand and the prosecution continue.

MORE: After Warm Sands gay sex sting case, judge accused of hom*ophobic comment in secret recording

Downing retired in 2013, but returned to the bench part-time as recently as 2015. He remains on a court roster of retired judges who can be used to fill vacancies on smaller cases at any time.

The Lambert murder was one of the largest cases of Downing’s career on the bench, spanning five years and two trials. Because the victim’s body was never found, prosecutors leaned heavily on the testimony of Craig McCarthy, one of the killers who agreed to take the stand in a plea deal, and more than 1,000 pages of text messages between the suspects. The transcript of Niroula’s trial spans more than 20,000 pages – and that’s only one of the trials.

Buried in that mountain of paper, one especially pertinent conversation stands out.

On July 16, 2012, about three weeks after the secret recordings were discovered, Niroula stood up in court and asked to speak to Downing in his chambers. Niroula said the judge had made some “biased” statements about him and he wanted an explanation.

Downing said no.

Niroula pushed back.

He confrontedthejudge in open court with what he had heard in the recordings.

“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,” Niroula said.

“I don’t care what you think,” Downing responded, according to an official court transcript. “I can say what I want. The First Amendment protects me. I can say what I want. … Quit taking stuff out of context.”

MORE: The caller said he stabbed his wife. Cops rushed to catch a killer. It was all a scam.

But Downing’s First Amendment defense is “malarkey,” undercutting the very basic tenets of a judge’s oath to be impartial, said Charlie Geyh, an expert on judicial ethics at the Indiana University Maurer School of Law.

Judges also swear to give every defendant a fair trial,Geyh added, which Downing failed at fundamentallyif he didn't even read the court motions.

“The Supreme Court has said that judges have a right to announce their views of things that come before them,” Gyeh said. “But that certainly isn’t a license to engage in patently hom*ophobic behavior.”

Niroula used a similar argument when he filed hisappeal– technically a petition for a writ of habeas corpus – in 2015. He claimed Downing had showed an unacceptable bias by “mocking” his disease, “sharing false myths about gay men” being promiscuous and “expressing ignorant and unfounded fear about the transmission of HIV/AIDS.” The California Attorney General’s Office opposed the appeal without confirming or denying what Downing had said. The Fourth District Court of Appeals sent the case back to county court onan “order to show cause,” a hearing in which prosecutors can argue why Niroula should not get a new trial.

When questioned, Downing said he was unaware the case had been kicked back to the lower court over the recordings. He repeatedly said he couldn’t remember if he made the comment about Niroula’s tongue or not, but insisted that he did read all of Niroula’s motions. The retired judge noted that heapproved county-funded laptops and an expert witness in what he described as “the fairest trial ever – and then some.”

But fairness doesn’t change the evidence, and the evidence was compelling, the judge said.

“In my heart, I feel I was fair and impartial to both of them.” Downing said. “If a new trial is granted to one of them, or both of them, or none of them, the evidence still hasn’t changed.”

“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.”

It seemed like Clifford Lambert, 74, had it all.

He was a retired art dealer who lived in a million-dollar home in Las Palmas neighborhood, a ritzy corner of Palm Spring where the mountains meet the desert floor. He had a Rolls Royce and a Mercedes in the garage, designer clothing in his closet andland in the Bahamas. He looked and lived like he had millions in the bank, even though it was really much less.

But Lambert was lonely. Two years prior, hehad divorced his longtime partner. Now his big, fancy house was empty.

So Lambert went online, looking for a younger man. He met a 25-year-old in San Francisco with a freckled, boyish face, then invited him to Palm Springs for a romantic week. Lambert flew the guy to the desert for six days.

This was April 2008, when Lambert introduced himself to Daniel Garcia, and by extension, a group of Bay Area con menthat would eventually become his killers. Lambert saw Garcia as a young man who could ease his loneliness, but Garcia saw Lambert as an old man who was rich and vulnerable. He swiped Lambert’s credit card information as he left, upgrading his flight hometo first class so he could fly backin style.

The flight was just a taste of Lambert’s money. Garcia wanted more.

Six months later, Garcia and his friend, Kaushal Niroula,hatched a plan to return to Palm Springs and fleece Lambert for all he was worth. They called the scheme “Operation Craigslist,” and it worked like this: Niroula would pretend to be an attorney representing an old friend of Lambert’s who had left him valuables in a will. He would lure Lambert out of his home under the guise of signing paperwork, then flirt a bit, allowing time for hit men to sneak into Lambert’s home and prepare an ambush. Once Lambert was dead, nobody would miss him. They could take everything.

“Let there be 12 mill okay please,” Niroula texted Garcia.

“Yeah like let there be $185,000 in an offshore account in the Bahamas,” Garcia responded.

A month later, the plan was in action. Niroula contacted Lambert, pretending to be a Brooklyn attorney who represented Florene May, heiress to the May Department Store empire and a famous collector of modern art. Niroula claimed May had left Lambert some artwork, but said if he didn’t sign legal paperwork soon, the paintings would be donated to the Metropolitan Museum of Art in New York.

MORE: Bloodied and half-blind, this cop’s grip was the last defense against disaster

Lambert fell for the ruse. On Dec. 4, 2008, he met Niroula at Dink’s, an uptown restaurant.

As they ate, Niroula got a text from Garcia. He was nervous.

“Are you still at dinner? Is he happy?” Garica texted. “Does he believe you?”

“Honey, everyone believes me until they’ve been conned,” Niroula responded. “Some, even after that.”

While Lambert was at dinner, hitmen were sneaking into his house, just as planned. For the killing, Niroula and Garcia had enlisted the help of two San Francisco roommates – Craig McCarthy, a former Marine, and Miguel Bustamante, a bartender from The Castro.

They climbed through a garage window, then searched for weapons. McCarthy armed himself with a screwdriver and hid in the crawl space. Bustamante grabbed half of a pair of broken hedge clippersand hid in the back seat of the Rolls Royce. Both were ready to strike when Lambert returned from dinner.

But, at the last minute, they backed out.

Lambert went inside unharmed. The would-be killers climbed out of their hiding places and slipped away through the window.

Niroula was angry.

“I’m going to do this myself,” he texted Garcia.

The next day, on Dec. 5, 2008, Niroula returned to Lambert’s under the pretext of co*cktails. As he was talking to Lambert inside, McCarthy and Bustamante entered the property through an open gate andproceeded to a side door, which Niroula had unlocked while Lambert wasn’t looking.

McCarthy and Bustamante grabbed knives in the kitchen, then waited. When Lambert entered the room, McCarthy grabbed him from behind and held a knife against his throat.

“What are you doing?” Lambert screamed.

“You know what this is about,” Bustamante said, before stabbing Lambert in the torso, then again at the base of his skull. Lambert fell to the ground and gurgled as he bled out. Bustamante dropped to his knees and stabbed him again and again.

MORE: Fifteen kids reported this pedophile. They left him in the classroom anyway.

With Lambert dead, his killers became vultures. They swiped a ring off his finger and took the credit cards, cash and IDs out of his pockets, then loaded the body into the Mercedes and drove off. The next morning, as the hit menburied the body in the desert, Niroula enacted the second half of the plan – keeping Lambert alive, at least onpaper.

Niroula got an attorney, David Replogle,and an art dealer, Russell Manning, to help him take over Lambert’s estate. Replogle impersonated Lambert andtricked a notary public into giving Lambert’s power of attorney to Manning. The con men used the fraudulent power-of-attorney documents to transfer more than $235,000 out of Lambert’s bank account, draining every penny. Another $40,000 was racked up on the dead man’s credit and ATM cards. Niroula even tried to quickly sell Lambert’s million-dollar home for $300,000, although the sale was halted when it was that discovered that a missing man’s house was on the market for suspiciously cheap.

Operation Craigslist ultimately collapsed one month after the murder. Aneighbor noticed a U-Haul parked outside Lambert’s house in Palm Springs andcalled the cops. Police found Bustamante in the house, cleaning out everything he could carry. Oddly, he had a key to a missing man’s home.

Bustamante was arrested for burglary, and while jailed, he told his cell mate about the entire murder plot. The cellmate then alerted the police, who tracked down and arrested Niroula, then Replogle, then Garcia, then McCarthy and finally Manning. McCarthy quickly became cooperative, leading police into the desert to search for Lambert’s body, then reenacting the murder – on video – for prosecutors.

"What's everybody's demeanor?" asked Palm Springs Detective Frank Browning when the reenactment was over. "How is Kaushal?"

"Kaushal is like nothing happened. It's like it's mundane for him," McCarthy responded.

All six men would be convicted. First, Manning, the art dealer who helped empty Lambert’s bank accounts, confessed to fraud and was sent to prison for five years. Then McCarthy, who agreed to testify against the other suspects in a plea deal, received a 25-year sentence for voluntary manslaughter. After that, Bustamante, who actually did the stabbing, and Replogle, the attorney who impersonated the victim, would each receive life in prison after a trial in front of Judge Downing in 2011.

Finally, in 2012, it was time for the masterminds.

Niroula and Garcia, the suspects who first hatched the plan to kill Lambert in 2008, came before Downing on murder charges. They chose to defend themselves.

Evidence in the case was so voluminous that Downing issued the suspects brand new laptops to help them stay organized. They could use the laptops to take notes and review documents during court, but when the case took a break,the defendants were moved into a holding cell without their computers.

The laptops would remain in the courtroom, even when the defendants weren’t.

And one of them, it would turn out, was recording.

It was June 21, 2012 when Daniel Garcia stepped into Judge Downing's chambers with a plan. One day earlier, Garcia had been caught secretly recording in the courtroom. The recordings were seized, but Garciahad already listened to them. Heknew what he heard.

“Some comments,” Garcia said, “may have been made by this court which imply bias or may have been inappropriate towards me and Mr. Niroula that I …"

“So the First Amendment doesn’t apply to anything?” Downing interrupted. “I can’t say what I think?”

This was the start of the most detailed discussion of the secret recordings captured in official court transcripts. Garcia expected to use the recorded statements to convince Downing to recuse himself, but the judge wouldn’t budge.

First, Downing said the statements were protected speech. Then he said the recordings were inadmissible. Thenhe told Garcia the recordings simply weren’t his problem. Throughout it all, he never denied the statements.

“I know there were some comments made that I personally was very offended by it," Garcia said."It felt very – were very inappropriate."

“The First Amendment protects judges,” Downing responded. “The commission on Judicial Performance doesn’t say that, but in my view, it does.”

Garcia again tried. He said that, although he agreed that the First Amendment protected free speech, he was still worried about what the judge had said.

“Just I am very concerned especially with comments made …”

Downing cut him off again.

“The problem is, is that (the recordings) are inadmissible because you can’t record, so you'restuck,” he said. “It is like a privilege, talking to you wife. It is privileged. You might not like it, but you can’t use it, so what is your point?"

MORE: The fatal Palm Springs police shooting began with an argument over a TV remote

Garcia tried to explain a third time, insisting it was “difficult to proceed in a trial” knowing that the judge had “made fun” of Niroula’s HIV and would deny his motions. The judge cut him off yet again.

“What do you care what I said about Mr. Niroula?” Downing interjected. “He is not here. Worry about yourself right now.”

Although this conversation does not confirm what Downing said in the secret recordings, it adds to the growing evidence that the judge was caught on tape saying something disparagingabout Niroula. Exactly what was said, however, should become public sometime in the near future as the court slowly releases the most salient portions of the voluminous recordings.

Garcia’s laptop secretly recordedfor about seven weeks of court hearings, storing more than eight gigabytes of audio. In their sworn statements, Garcia and Niroula allege the recordings captured numerous inappropriate statements by Downing, who was openly hostile to the defendants when they were outside of the courtroom. Court records state that the recordings were seized and sealed, not because of Downing’s statements, but because the laptop also recorded confidential conversations between the defendants and their court-appointed legal team. Therefore, no one can listen to the recording – not a judge, prosecutors, Niroula or Garcia – without hearing something that is supposed to be off-limits.

The court fixed this problem last year by appointing an independent attorney, John Aquilina, to review the recordings and differentiate the confidential parts from the statements relevant to Niroula’s appeal. Based on Aquilina’s report, portions of the sealed recordings were released to attorneys earlier this year, and the substance of Downing’s statements will most likely be revealed in upcoming legal arguments.

The DA’s Office, which may defend the conviction, has not yet decided what to do, said Kelli Catlett, chief deputy district attorney, in a statement.

“In this case, we are still evaluating what will be our response to the filed petition because we are still in litigation over what additional recordings exist that we may need to review in order to ascertain what occurred and when,” Catlett said in a statement.

Niroula’s attorney, Shaun Sullivan, declined to comment for this story. Replogle’s attorney, deputy federal public defender Moriah Radin, did not respond to multiple requests for comment. Garcia does not appear to currently have an attorney, but his former attorney, Eric Larson, declined to comment.

Attorneys are due in court on Nov. 15 to set a schedulefor arguments.

Until then, the strange case will quietly lingerat the courthouse, where it has been since it was bounced back by the appeals court last April.Despite the potential to undomurder convictions and disgrace a judge, this case has maintained a surprisingly low profile for the past year and a half.

But at least somebody, somewhere, knows all about it.

Earlier this month, an envelope with no return address arrived at the Riverside courthouse, addressed to Judge David Gunn, the new judge in the Niroula case. Inside, Gunn found an anonymous letter urging him to delay the case as long as possible.

The letter paints a doomsday scenario, but its authenticity is in doubt.

The letter writer, who claims to be a firm representing someone who was wronged by one of Niroula’s other cons, said they were accidentally forwarded the secret recordings years agoand have maintained a copy ever since.If the recordings become public, the letter claims, it would end the careers of judges and prosecutors and lead to countless convictions being overturned.

“The court … must do everything to delay these proceedings so Niroula, who is in frail health, will simply die and the matter will be null & void,” the letter reads.

“The alternate will be catastrophic for the county of Riverside.”

Investigative Reporter Brett Kelman can be reached at 760 778 4642 or at brett.kelman@desertsun.com. You can follow him on Twitter @TDSbrettkelman.