Resolution sought in Kinkel’s death

Gilroy
– Scott Kinkel says he wants the same resolution in the death of
his daughter that he wanted eight months ago, when she was killed.
He wants the driver of the truck from which she was thrown from to
plead guilty and educate other teens about the dangers of
irresponsible driving.
By Lori Stuenkel

Gilroy – Scott Kinkel says he wants the same resolution in the death of his daughter that he wanted eight months ago, when she was killed. He wants the driver of the truck from which she was thrown from to plead guilty and educate other teens about the dangers of irresponsible driving.

Meanwhile, Anthony Scott McDowell, the 19-year-old man who authorities hold responsible for the death of 15-year-old Erin Kinkel, will appear at his preliminary hearing two weeks from today, and is scheduled go to trial May 16.

McDowell, of Morgan Hill, pleaded not guilty to a misdemeanor charge of vehicular manslaughter without gross negligence and unlawfully transporting a person in the back of a truck, and could face jail time of up to one year if convicted. Scott Kinkel has long said he does not want McDowell to go to jail.

In September, one month after Erin Kinkel died after being thrown from the bed of McDowell’s pick-up, Kinkel said he wanted McDowell to take responsibility for the late-night crash and, more than that, he wanted condolences for the loss of his daughter. In a recent interview, he said nothing has changed.

“I would like to see that resolved in a manner that’s positive,” Kinkel said.

The Santa Clara County District Attorney’s office does not plea bargain manslaughter cases, and McDowell will go to trial unless he pleads to the charges, said Deputy District Attorney Amir Alem, who is prosecuting the case.

“Cases go to trial all the time because charges are filed and both sides can’t reach resolution,” he said. “We filed charges because we believe that the condition in this case is, something happened that shouldn’t have happened, and someone is deceased.”

Ingo Brauer, McDowell’s attorney, did not return calls for comment. McDowell could not be reached.

A number of factors can be considered when proving vehicular manslaughter, or that a driver acted in a negligent, but not flagrantly negligent, manner, Alem said.

“One can be speed, one can be placement of individuals in the car, having individuals belted or not belted in the car … having someone in the bed of a truck,” he said.

Racing can also be considered negligent behavior, although Alem did not say whether he will try to prove McDowell was racing with friend Cameron Shannon, who was driving a car in front of McDowell. One of the other teenagers involved in the crash told a student newspaper that Shannon was driving fast down Redwood Retreat Road at the time of the Aug. 1 crash and “kept losing” McDowell.

“What we have to prove is Mr. McDowell basically … committed some sort of negligent act – that could even be an act that is ordinarily lawful – that caused the death of a human being,” Alem said.

Kinkel has said he would support McDowell if the teenager entered a guilty plea: He would do all he could to get the judge to hand down a sentence of community service, rather than jail time. He also would not seek punitive compensation.

“I have said all along that if he pleaded out, there would be no civil action on my part,” Kinkel said.

On the other hand, since McDowell has pleaded not guilty, Kinkel has little sympathy.

“There were laws broken, there was negligence and there has to be accountability and responsibility for that,” Kinkel said. “I think this could have turned out so much better, but it didn’t.”

Scott and wife Miki Kinkel are always quick to say that the impending trial is not about them, but about McDowell, who was 18 years old when he was charged with the accident that killed their daughter.

Yet the Kinkels’ and Erin’s presence have been felt in the courtroom during each of the pretrial hearings. The Kinkels, with friends and relatives, are present at every court date, wearing pins in remembrance of the Gilroy High School cheerleader who was thrown from the bed of a truck after authorities say McDowell lost control on Redwood Retreat Road.

During McDowell’s most recent court appearance last month, he also was wearing a pin that read “Remember Erin Kinkel. Remember your seat belt.”

The sight outraged Kinkel.

“You don’t think his lawyer was telling him what to wear?” he said. “He hasn’t worn any of that stuff. … This is representative of what is going on behind the scenes. He knew a trial date was going to be set.”

If McDowell’s trial does begin in May, Alem estimates it will last about one week, depending on the number of witnesses called by both the prosecution and the defense. If McDowell is convicted, Superior Court Judge Susan Bernardini has a variety of sentencing options available, Alem said, including jail time, community service, weekend jail, or a work furlough program.

Both the Kinkels and McDowell’s family would have an opportunity to speak to the judge.

“The judge will take all that into consideration,” Alem said. “I think it would be … very important to hear what the (Kinkels) have to say. She will hear all that, and hear from us and the defense attorney, and render her decision.”

A sentence of community service in which McDowell would speak to young drivers about the dangers of irresponsible choices behind the wheel would have the most positive outcome for McDowell and local teenagers, Kinkel said.

Kinkel, along with one of his daughter’s friends and another teenage girl influenced by her death, began speaking to schools, driving classes and other groups last year. He said he has seen hundreds of teenagers and adults touched by his daughter’s story.

“I’m powerful, but I think (McDowell) could be more powerful, because he was there, and he is a peer,” Kinkel said.

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