Defense Claims Suspect Is Victim Not A Murderer In Retiree’s Death

A 61-year-old San Francisco attorney was a victim — not a participant — of an identity scam that resulted in the stabbing death of a Palm Springs retiree killed for his financial assets, the man’s lawyer told jurors today.

David Replogle and Miguel Bustamante, 27, of Daly City, are on trial on first-degree murder and theft charges in the Dec. 5, 2008, slaying of 74-year- old Clifford Lambert. The men could face life in prison without parole if convicted.

Also charged in the killing and awaiting trial are Daniel Garcia, 27, and Kaushal Niroula, a 28-year-old self-professed con man from San Francisco. A fifth man, Craig McCarthy, entered into a plea deal and is expected to testify against his co-defendants.

“Look at the lineup and see who doesn’t fit,” Replogle’s attorney, John Patrick Dolan, said in his opening statement. “It’s very clear that Mr. Replogle is a victim in this case and not one of the `vultures’ described by the district attorney.”

He touted Replogle’s resume of representing victims of child sexual abuse by American international tourists, and said the openly gay attorney had no motive to kill Lambert or take his money.

“Mr. Replogle has had a successful law practice,” Dolan said. “He was not wanting for income.”

Bustamante’s lawyer, Deputy Public Defender Joe Forth, chose to withhold his opening statement until later in the trial, which could last up to three months.

Deputy District Attorney Lisa DiMaria, who wrapped up her nearly five- hour opening statement this morning, alleges Replogle was one of three masterminds behind a plot to rip off and kill Lambert.

As the trial opened on Tuesday, the prosecutor said Lambert was lonely, liked to meet people over the Internet and had an interest in younger men — making him vulnerable to be preyed upon.

Dolan told the seven-man, five-woman jury that Replogle had no knowledge of the scheme to kill Lambert. He said Replogle believed Niroula’s claims that Lambert had sexually abused him.

The attorney was helping Niroula with a settlement agreement against Lambert during the time of the killing, according to Dolan.

Replogle met Niroula through Garcia, who he represented in the early 2000s. Replogle won a multimillion-dollar settlement for the then-underage Garcia, who alleged a financier had abused him and several other Mexican youths.

Replogle, who has been a member of the California State Bar since 1977, felt sorry for Niroula upon learning he was HIV-positive and helped bail him out of jail on an unrelated case, the defense attorney said.

“He had a soft place in his heart (for Niroula),” Dolan said, added that many of Replogle’s friends had died of AIDS in the late 1970s and ’80s.

Niroula took advantage of Replogle, moving into his San Francisco apartment and using his phone and office, Dolan said.

After Lambert’s death, Niroula threatened Lambert and ordered him to pose as the dead man in order to get access to the retiree’s wealth, the attorney alleged.

According to Dolan, Niroula told Replogle, “If you do not (pose as Lambert), we know where your mother and your partner lives. We will kill you and your mother and your partner.”

Replogle admitted to police that he pretended to be Lambert when he notarized several power of attorney documents, and acknowledged his fingerprint was used as part of the notarization process, his attorney said.

The documents were used to empty Lambert’s bank accounts. His co- defendants also tried to complete a quick sale of the victim’s $1 million Palm Springs home for less than $300,000. A judge later halted the sale.

Bustamante — a bartender in the Castro District of San Francisco — was apprehended by police while emptying Lambert’s home, according to the prosecution.

The prosecutor alleged that Niroula let Bustamante and McCarthy into Lambert’s home on Dec. 5, 2008, and Bustamante stabbed the retiree to death.

McCarthy, a former Marine, pleaded guilty to a voluntary manslaughter charge last month and faces 25 years and four months in state prison, with sentencing set for January.

The three allegedly loaded Lambert’s body into the trunk of his Mercedes- Benz and buried him in the hills in Fontana. The retiree’s body has never been found.

Lambert was reported missing two days later by a friend. Detectives went to his home at 317 Camino Norte and found the mailbox full and his 2004 Mercedes missing.