Warm Sands Sex Case Judge Would Not Touch An Envelope from Gay Man:U know where's been

{There is "homophobic" and there is "rabidly anti gay" This judge was the latter, surrounded by cops who belonged to the same club}

Judge  David B. Downing is an Anti gay Judge who ruled on gay defendants

An Indio judge who upheld charges in the Warm Sands sex sting case six years ago despite strong evidence that Palm Springs police discriminated against gay men is now accused of making an alarmingly homophobic statement while being secretly recorded in another case.

Riverside County Superior Court Judge David B. Downing, who is now retired, allegedly said he would not touch the motions of a gay, HIV-positive murder suspect because they came in envelopes that had been licked closed.

“Lord knows where his tongue has been,” Downing said, according to sworn declarations by convicted murderer Kaushal Niroula and his co-defendant Daniel Garcia, the latter of whom made secret recordings of Downing in 2012.

Those recordings, first reported by The Desert Sun this week, now threaten to undo Niroula’s conviction, potentially leading to new trials in the murder case. The recordings also casts a shadow over the Warm Sands prosecution, Downing’s highest-profile case, which involved more than a dozen gay defendants, three gay attorneys and allegations of systematic police discrimination against gay men. 

In the Warm Sands case, defense attorneys presented evidence that Palm Springs police officers had exclusively targeted gay men in an undercover 2009 public sex sting. Police leaders were also caught on tape using slurs and calling the suspects “filthy,” and defense attorneys eventually proved that the police department had never arrested a straight person for the same behavior. 

Regardless, Downing ruled that the case wasn’t discriminatory, allowing prosecution to continue.

“I was always perplexed, because the hearing went so well, I thought he would rule in our favor,” said attorney Bruce Nickerson, an expert on lewd conduct law who worked on the Warm Sands case. “But he didn’t. I was never sure why. Now, I think it’s clear.”

Nickerson was one of three Warm Sands attorneys who spoke to The Desert Sun over the past week, reacting to how the secret recordings from Niroula’s trial reflected on the sex sting case. Each attorney expressed mixed feelings about the judge – who they recalled as outwardly professional, fair and open-minded – but said they remained puzzled by his decision to uphold the Warm Sands charges.

“I was certainly baffled by the ruling. I still am,” said defense attorney Joe Rhea. “I thought it was just a bang-up motion, and there was never a clear reason for denying it.”

A little more than a year after the Warm Sands decision, Downing allegedly made his “tongue” comment behind closed doors. The statement was captured by a laptop that one of the murder suspects had left recording in the courtroom even when the case was on a break. Official court transcripts show that the murder suspects later confronted Downing with the recordings, at which point he defended the statements and never denied them. When reached by The Desert Sun earlier this month, Downing said he could not remember if he made the “tongue” comment or not.

If he did say it, the comments are undoubtedly offensive, said Mark Foster, a retired defense attorney who also worked the Warm Sands case. Even more worrisome was the idea that any judge would not read a defendant’s motion, regardless of reason, Foster said.

The comment was so wholly terrible, Foster said, he had to believe Downing just made “a bad joke.”

“I was openly gay in the courtroom, and he treated me fairly,” Foster said. “But I don’t know what darkness lurks in men’s hearts… He might be a raging homophobe, he might not have a homophobic bone in his body. I just don’t know.”

The sex sting occurred in June of 2009, when the Palm Springs Police Department decided to crack down on public sex in the Warm Sands neighborhood, a well-known gay hookup scene. For four nights, on a city block surrounded by gay resorts, undercover cops approached men on the street and encouraged them to expose their genitals. If they did, the men were arrested.

When the sting was over, 14 men – all gay – were charged with misdemeanor crimes. Prosecutors sought to add each of them to a sex offender registry

But the case quickly became a massive embarrassment for local law enforcement, drawing widespread criticism for what appeared to be blatant discrimination. Condemnation of the case grew in 2011, when defense attorneys revealed that Palm Springs police had never arrested any heterosexual couples for the same crimes, despite prior complaints of straight people having sex in public places.  

Video footage of the sting also exposed that one of the leaders of the operation, Sgt. Bryan Anderson, had used a gay slur while watching the sting from inside a police vehicle. Additionally, Police Chief David Dominguez resigned after it was revealed he referred to the gay men as “some filthy (expletives)” during the sting.

All of this was presented to Downing during an eight-day court hearing in February 2011. Defense attorneys never denied what their clients had done, but insisted they had been entrapped by a police department that had exclusively targeted homosexuals. Judge Downing ruled otherwise.

"These … men were not arrested for being gay,” he said from the bench, before upholding the charges and allowing prosecutions to continue. “These men were arrested for having sex in public.”

Four defendants later appealed this ruling, but the decision was upheld. To this day, defense attorneys insist that Downing missed the entire point of the discrimination argument – If the suspects had been straight, but done the same thing, they would have never been arrested in the first place.

“They were only punished because they were having gay sex,” Foster said. “That was the whole point. If they were males having sex with females, no one would have launched a sting operation. We established that in court.” 

Although Downing’s ruling kept the Warm Sands case alive, the hearing had been embarrassing enough that law enforcement lost their lust for harsh punishment. Prosecutors decided to offer lighter plea deals – without registry as a sex offender – and most of the defendants accepted. A majority pleaded guilty to misdemeanors and were sentenced to probation. A few have since returned to court and had their convictions reversed. One defendant is still arguing in court to have his whole case sealed.

“The Warms Sands case has changed Palm Springs,” Rhea said. “Law enforcement has acted very differently after this. I haven’t seen a coordinated sting like this since Warm Sands.” 'd die.

To date, only one Warm Sands defendant has had their case completely erased.

That defendant was represented by Nickerson, the lewd conduct law expert, who expressed both the strongest criticism and highest praise of Judge Downing. Two years after the Warm Sands decision, Nickerson came back to the judge’s courtroom seeking one of the most coveted rulings in criminal law.

Nickerson asked for his client to be issued a “finding of factual innocence,” which is a court document that says a defendant is actually innocent instead of just not guilty. Downing appeared as if he was going to deny the request, Nickerson said, but then the judge surprised him again.

The defendant’s innocence was confirmed, allowing him to get a job as a teacher.

If Downing was homophobic, he must have looked past his prejudice on that day, Nickerson said.

“It was heartwarming for me,” Nickerson said. “Whatever Downing may have thought of my client, he put it aside and ruled strictly on the law on that motion."

Brett Kelman, The Desert Sun

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