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Secret Recording of Judge Leads to Murderers' Appeals

A group of murderers may be getting a second chance to prove their innocence, despite the fact that the evidence, as reported by the media, seems beyond damning. The group that murdered Charles Lambert in 2008, then stole his identity, money, and even tried to sell his house, are all trying to get a retrial over their trial judge's biased, homophobic comments. And one of them may actually be getting one.

Judge David Downing of Riverside County in California was caught on the recording not only making inappropriate comments about one of the defendant's HIV status, but also explained his refusal to sever two defendants' trial was purely a matter of convenience for his own workload.

What'd the Judge Say?

The following is the transcription of the recording of the judge's response to the motion to sever, which was published in a local newspaper:

It's every prosecutor's dream. 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.

Yeah, it's improper. But are we going to dismiss the case against Garcia? No. Are we going to dismiss the case against Niroula? No. Why separate them? The fact is that if I sever them, then it means that we have to try this twice. If I don't sever them and we go to trial, then it could be reversed and I have to try it twice. So what's the downside to us? There is none. Try the case anyway, then the Appellate Court goes 'Oh my God.'

In addition to these comments, the judge teased his staff about the fact that one of the defendants is HIV positive and would file documents in envelopes that he licked to close. He made some comment about not knowing where the defendant's tongue had been, and exclaimed "gross."

Should You Secretly Record Proceedings?

Making a secret recording of a judge during your client's trial is perhaps the quickest way to land on a judge's bad side, if not find yourself facing criminal charges, or a contempt charge, or even disciplinary action. Courts have rules about making recordings, and surely leaving your recorder on while the court is on recess, or making a "secret" recording, would violate even the most lenient of those rules.

However, if you catch the judge making biased comments, or worse, explaining that they're ruling based on what's convenient over what's right, you might be able to get a new trial, but there may be some collateral costs (consequences).

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