A California judge who sentenced two men to life in prison for murder was secretly recorded during the trial calling them "a-----es" and "clowns" and saying that he planned to make a ruling that would help the prosecution, a newspaper reported.
Riverside County Superior Court Judge David B. Downing made the statements in 2012, according to The Desert Sun of Palm Springs, which said it obtained a copy of some recordings on Tuesday that confirmed recently filed court documents mentioning the remarks.
The comments were recorded on a defendant's laptop during a break in proceedings during jury selection for the trial of Kaushal Niroula and Daniel Garcia.
They were among six men who pleaded guilty or were convicted in connection with the death of Clifford Lambert, a 74-year-old Palm Springs retired art dealer who vanished in 2008. His body was never found.
Prosecutors say the six were conmen from the San Francisco Bay Area who wooed Lambert with promises of romance and money before he was stabbed him to death in his kitchen, then stole his identity, emptied his bank accounts and even tried to sell his house.
Niroula, Garcia, David Replogle and Miguel Bustamante were convicted of murder in Downing's courtroom and were sentenced to life in prison without possibility of parole. Two other men received lesser sentences for other crimes.
Niroula, Garcia, Repogle and Bustamante are seeking new trials on grounds that the judge showed bias because of his comments.
In conversation with his staff, Downing calls Niroula and Garcia disparaging names. The judge also says that he will reject a defense motion to sever the case into separate trials because the two men might implicate each other if they are tried together.
"It's every prosecutor's dream," Downing says, according to the new court documents. "He'll take the stand and say, 'it wasn't me. It was him.' The other one will take the stand and say 'it wasn't me, it was him.' Then the jury convicts them both. That's great. That's why I won't sever anything. Screw that."
Downing also was recorded saying he wouldn't touch envelopes containing written motions filed by Niroula, who was acting as his own attorney, because Niroula had licked them.
"Oh gross, and he is HIV positive. God knows where his tongue has been," Downing is heard telling his clerk.
Niroula and Garcia both confronted Downing about the remarks during the trial but Downing replied that he was protected by the First Amendment regarding free speech.
"I can say what I want," he said.
Downing declined to comment to The Desert Sun last week but he told the paper last year that all the defendants were given the "fairest trial ever — and then some."
Last year, however, an appeals court sent Niroula's case back to Riverside County prosecutors, telling them to show cause why he shouldn't get a new trial. Prosecutors have not yet decided how to respond.
The district attorney's office is still reviewing all of the Downing recordings but "we are deeply troubled by and do not condone the improper comments made by the trial judge," Elaine Bentley, an assistant district attorney, said in an email to the newspaper.