Five years ago, judge David Downing convicted Kaushal Niroula and Daniel Garcia for the 2008 killing 74-year-old, Palm Springs retiree Clifford Lambert.
Lambert was stabbed and buried in the desert, authorities were never able to find his body.
A jury found Niroula and Garcia guilty and sentenced them to life in prison.
But now, an appeal has been filed on behalf of Niroula, alleging comments Judge Downing made in court proceedings, that Garcia secretly-recorded on his court-issued laptop, were inappropriate could have affected his conviction.
Downing allegedly made comments about Niroula having HIV and refused to read his motions.
In a meeting in June 2012, Downing told Garcia,"I don't know what was said."
In another meeting a month later, Niroula told Downing, "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." To which downing replied, "I don't care what you think. I can say what I want. The first amendment protects me."
"If they are true though, they raise fundamental issues of fairness," said Roger Tansey, a defense attorney.
Roger Tansey was a defense attorney on the Warm Sands case over which downing presided on alleging discrimination from Palm Springs police while conducting a public sex sting. He says the Niroula allegations could unravel changes to the Lambert case, and others involving Downing.
"The Lambert convictions could be overturned, and they'd have to have a new trial," Tansey said. "In the Warm Sands cases, I'm having to explore whether there's any basis for overturning those convictions."
Tansey says he'll wait to see how the appeal unfolds. "I hope the tape is unsealed, and we can figure out the facts. find the truth," Tansey said.
A court hearing for this appeal is set for November 15 in Riverside.
Riverside County Chief Deputy District Attorney Kelli Catlett released this statement on the appeal:
"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. Additionally, the defendant recently obtained new counsel which may further prolong the pleading process. At this point, we have not yet filed our “return” and the court has not calendared an evidentiary hearing."