McDowell trial set to begin Monday

19-year-old charged with vehicular manslaughter and faces up to
a year in jail
By Lori Stuenkel

Gilroy –The trial of 19-year-old Anthony Scott McDowell, charged with vehicular manslaughter in the death of Erin Kinkel, 15, begins Monday.

McDowell is charged with the misdemeanor without gross negligence in the Aug. 1, 2004, death of the Gilroy High School cheerleader and gymnast. He faces a year in jail.

McDowell was driving a Ford F250 at an unknown rate of speed westbound on Redwood Retreat Road, just west of Mt. Madonna County Park about 1am that morning, according to the California Highway Patrol. He made an unsafe turning movement on a left-bending curve and his truck veered off the roadway and struck a tree, ejecting Kinkel and another passenger who were riding in the bed of the truck.

Deputy District Attorney Amir Alem said this week that jury selection could begin Monday afternoon or Tuesday morning and the trial should last about a week.

“We’ve come to a point where there’s no meeting of the minds, and when you have no meeting of the minds, we have to set a trial date,” Alem said recently.

The Santa Clara County District Attorney’s office does not plea bargain manslaughter cases.

Ingo Brauer, McDowell’s attorney, did not return a request for comment.

The Kinkel family and their friends, who have attended each court date, will also attend next week, said Scott Kinkel, Erin Kinkel’s father.

“I still just want to see Anthony take some responsibility for my daughter’s death, show some remorse, and let’s see what we can do to turn this into some sort of a positive and maybe save someone else’s life,” Kinkel said. “But at this point in time, that doesn’t appear like it’s going to happen.”

As with any case, Alem must prove his case beyond a reasonable doubt.

“Every person that drives a vehicle and unintentionally but unlawfully kills another human being is guilty of vehicular manslaughter,” he said, reading from jury instructions. “So to prove it, you’ve basically got to prove that the defendant is driving the car and he either committed an unlawful act not amounting to a felony and … committed with … negligence an act that is normally lawful but that results in the death of another person.”

Alem may prove negligence in a variety of ways, such as using McDowell’s speed at the time of the crash, or the “unsafe turning movement” reported by the CHP.

The defense, then, would try to show the prosecution cannot prove that McDowell was negligent and that Kinkel’s death occurred for other reasons than McDowell’s driving or changes he made to his vehicle.

Alem declined to say on what his case would focus. He will not know how many witnesses or how much evidence he will present until the trial gets underway, he said.

McDowell was arrested 10 months ago, about a month after the crash, and has been free on $5,000 bail ever since. In March, he pleaded not guilty to misdemeanor vehicular manslaughter and transporting a person in the bed of a truck, an infraction.

If convicted, McDowell could face anywhere from no jail time to a year in jail.

“Certainly (Superior Court Judge Susan A. Bernardini) has a wide variety of options that are available to her,” Alem said.

She will consider input from everyone involved in the case: The county probation department, Erin Kinkel’s family and friends, McDowell’s lawyer, McDowell himself and his friends and family, and Alem. McDowell could be sentenced to probation, community service hours, fees or fines.

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