A Judge’s AIDSphobic Insult Could Set A Killer Free

California Judge David Downing was caught on tape saying he didn't read motions from a convicted killer because he had HIV.

We have no illusions about the discrimination faced by people living with HIV/AIDS in this country. But a California judge took it to new extremes when he was allegedly caught claiming he didn’t look at a defendant’s motions because the man was HIV-positive.

In 2012, Riverside County Superior Court Judge David B. Downing reportedly left motions unread from Kaushal Niroula, who was convicted of murdering a Palm Springs man, because Niroula has HIV and the envelopes containing his documents were licked closed. “Lord knows where his tongue has been,” the judge allegedly remarked.

The statement was made during a break in jury selection for Niroula and co-defendant Danny Garcia’s trial. Courtroom microphones were turned off but Garcia was secretly recording the proceedings on his laptop. Because he also recorded confidential conversations between the defendants and their legal team, the laptop was confiscated and the recordings were sealed for five years.

Now, after an independent counsel reviewed the transcripts earlier this year, the relevant portions were released, putting the case back on the front burner.

Palm Springs Police Department

Niroula (above left) was one of six men convicted for the 2008 murder of 74-year-old retired art dealer Clifford Lambert, who they were conning out of millions of dollars. Should he get a retrial, it could lead to the other convictions being reexamined, as well.

Last year, an appeals court said Niroula had grounds and now prosecutors are weighing whether or not to defend Judge Downing’s verdict. (Attorneys are due in court on November 15.)

Downing told The Desert Sun he couldn’t recall what he said to Niroula in 2012. “Who knows? I don’t know what was said five years ago. Off the top of my head, I didn’t say that stuff.”

But when he was confronted in court at the time, Judge Downing didn’t deny making the statement. Instead, he just insisted he could say what he wanted.

In court transcripts, Niroula complained that Downing making biased remarks “regarding my health status and not reading my given motions because you are concerned about where my tongue has been are inappropriate.”

“I don’t care what you think,” transcripts show Downing responding. “I can say what I want. The First Amendment protects me. I can say what I want… Quit taking stuff out of context.”

Downing’s jurisdiction encompassed the gay enclave of Palm Springs—any number of his verdicts, as well the cases he tried as a prosecutor for 25 years, could be impacted.

One in particular that’s getting attention is a 2011 police sting in Warm Sands, where 19 men were arrested for having sex in public. Downing was the judge in that case and, despite strong evidence of entrapment and bias—and the fact that no straight people had been arrested for similar behavior—he let the charges stick.

What’s more, the men were charged with indecent exposure, rather than lewd and lascivious behavior, meaning they’d have to register as sex offenders if convicted. During the sting, Palm Springs Chief Dominguez was caught on tape calling the suspects “filthy faggots.” (Dominguez later resigned after his remarks came to light.)

Judge Downing’s supposed “tongue” comment came a little more than a year after the sting. Though he retired in 2013, he returned to the bench part-time and still fills in vacancies on smaller cases.

Downing insists Niroula has “the fairest trial ever—and then some.”

“In my heart, I feel I was fair and impartial to both of them,” he told the Sun. “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, his property, they took his house. It was a gross crime. It was horrible.”

In perhaps the oddest wrinkle in the case, an anonymous letter was sent to Riverside Court this month that urged as long a delay as possible in Niroula’s appeal.

“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 and void,” it read in part. “The alternate will be catastrophic for the county of Riverside.”

Dan Avery is a writer-editor who focuses on culture, breaking news and LGBT rights. His work has appeared in Newsweek, The New York Times, Time Out New York, The Advocate and elsewhere.