Judge’s ruling: no jail

Scott, left, and Miki Kinkel listen to the District Attorney

Judge Susan Bernardini decided against sending Anthony Scott
McDowell to jail, but she did give him some direct advice: Always
send a sympathy card.
By Lori Stuenkel

Gilroy – Judge Susan Bernardini decided against sending Anthony Scott McDowell to jail, but she did give him some direct advice: Always send a sympathy card.

“You should always remember, a card is the easiest thing to send,” she said. “It takes a minute and it means so much.”

Judge Bernardini sentenced McDowell to three years of probation and 300 hours of community service in front of a full but muted courtroom Wednesday morning. She told him the sentencing hearing, which stretched across two-and-a-half days, was one of the saddest things she has encountered in her 20-year career in criminal justice.

She also ordered McDowell, 19, who pleaded guilty to misdemeanor vehicular manslaughter, to pay nearly $14,500 in restitution – to cover funeral and counseling expenses – to the family of the victim, 15-year-old Erin Kinkel. Kinkel, a Gilroy High School student, was riding in the bed of McDowell’s pick-up truck Aug. 1, 2004. McDowell, a Morgan Hill resident, ran off a winding country road and struck a tree, ejecting Kinkel, who died while being transported to a hospital.

Bernardini said she ultimately tried to impose a sentence that Erin Kinkel would have wanted. She learned much about the teen, and McDowell himself, during emotional statements from friends and family Monday and Tuesday.

“She would forgive Anthony to help (her sister) Megan, if that’s what she needed to do,” Bernardini said. “She would forgive Anthony to help her parents, if that’s what she needed to do. She would forgive Anthony to help her grandparents, and (former boyfriend) Jason (Cole) – that’s what she would do.”

In requiring McDowell to complete 300 hours of community service, Bernardini said she wants him to speak publicly about his experience and the importance of driver safety. She asked that he seek advice from Erin Kinkel’s father, Scott, who already has spoken to thousands of teenagers at local schools, churches, and driving schools.

“I would like to see (McDowell) give back to the community and save lives,” Judge Bernardini said. “I would like to see him raise money for the (Erin Kinkel) scholarship fund … and I would really like to see direct communication with the Kinkels.

“You could learn from each other.”

Few people inside Santa Clara County Superior Court in San Martin reacted to the sentence. Miki Kinkel lowered her head and quickly left the courthouse in tears when the hearing was adjourned. She had asked that McDowell serve some time in jail.

McDowell’s 11-year-old brother sobbed for several minutes while his mother, Cheryl, tried to comfort him. McDowell’s case has been difficult for the boy to handle, Cheryl said, and he cried out of relief and frustration.

Outside the courtroom, McDowell shared hugs with the supporters who sat through more than two full days of the hearing. When he spoke to Judge Bernardini on Tuesday, he asked for jail time because he feels guilty for the crash.

“I don’t know what I’m feeling right now,” he said. “It’s weird because I’m relieved, yet I’m disappointed.”

He said he looks forward to speaking about driver safety. Before leaving the courthouse, McDowell briefly asked Scott Kinkel, Erin Kinkel’s father, if the two could work together. Scott Kinkel said McDowell “better call him.”

Wearing a pin bearing a picture of Erin’s face, a necklace with a picture of his four daughters, and two bracelets with Erin’s name, Scott said he was exhausted by the hearing but was hopeful Judge Bernardini’s ruling would benefit McDowell.

“Time will tell,” he said. “I expect great things from Tony. He’s been given a life and I expect great things from him. If he does that, he will honor my daughter.”

Stefanie Guillon, a friend of Erin Kinkel’s who spoke in court on Monday, shook her head as she realized McDowell will not go to jail.

“I don’t think Tony is really mature enough and maybe some jail time would have helped him realize what he really did do,” she said.

Cheryl McDowell was disappointed in the sentence, too, because her son must put on hold his goal of joining the U.S. Navy, to serve his probation.

“I can’t be happy,” she said. “Yes, my son’s not going to jail, but what does that do? It’s important to forgive, and we need to move on, and how long that will take, I don’t know.”

Before handing down the sentence, Bernardini spent a half-hour describing to the friends and family of both the Kinkels and McDowell how she reached her decision. She read a Santa Clara County Probation Department report more than once, and listened carefully to each of the more than 30 people who spoke during the first two days of the hearing – recounting important points she learned from each. She also looked at McDowell’s remorse, the nature and circumstances of the crime compared with similar crimes, McDowell’s acknowledgment of guilt, and considered what would be gained by sentencing him to jail or community service, she said.

McDowell will appear before Judge Bernardini on Sept. 1 to report on his progress toward fulfilling his community service requirements.

Judge Susan Bernardini’s sentence

– 3 years probation

– 300 hours of community service, which will be spent speaking about safe driving

– $14,425.64 in restitution for funeral expenses and counseling

– $700 in other court fines

Judicial considerations

What Judge Susan Bernardini said she considered:

– McDowell’s remorse

– The nature and circumstances of the crime compared with similar crimes

– McDowell’s acknowledgement of guilt

– Whether jail time will prevent other crimes

– A report from the Santa Clara County Probation Department

– A letter from McDowell

– Statements from more than 30 people

– A recommendation from Deputy DA Amir Alem

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