May 31, 2007

New information may lead to stiffer sentence for drunk driver

Mother seeks justice for 15-year old son

By Julie Davis Berry and Carol Rosen

On Wednesday, May 30, the District Attorney’s office released new information regarding the hit and run death of 15-year old Marcus Keppert on May 6, 2006.

Marcus Keppert

The DA’s office announced that they requested the police department download the sensor data module from the driver George Xinos’ SUV, which had not previously been done. The SDM indicated Xinos was traveling 76 miles per hour at the time of the accident, 31 mph over the Almaden Expressway speed limit, not the 55 mph which had previously been released.

According to Assistant District Attorney Charles Gillingham, the DA plans to make a motion “asking the judge to bust the plea.” That motion will allow the judge to change the stated legal recommendation of three months to a year county jail term and possibly increase Xinos’ sentence.

“We didn’t have all the information [before],” Gil-lingham said. “This new information may allow the judge to grant him a longer sentence based on the high rate of speed.

On the night of May 6, 2006 just after midnight, 15-year old Marcus Keppert was walking from a friend’s house to meet a group of friends at the Safeway on Almaden Expressway and Camden Avenue. As he crossed Camden going west, a northbound SUV on Almaden Expressway driven by George Xinos, a 43-year old Almaden Valley resident employed by Cisco Systems, hit and killed him.

Xinos didn’t stop, didn’t brake and drove away from the scene. Police following up on the accident, found him a few blocks away and noted in their report that it was obvious that Xinos had been drinking. A blood test, taken a couple of hours later, proved that point; Xinos had a blood alcohol level of 0.18 percent more than twice the legal limit of 0.08 percent.

The police studied the accident and the area, got testimony from four witnesses and, although he was booked on felony hit and run and felony driving under the influence, initially claimed that Xinos was not at fault because Marcus, who was hard to see because he was dressed totally in dark clothing, was crossing against the light.

Last month, Xinos pled guilty to felony hit and run driving and misdemeanor driving under the influence. Judge David Cena plans to sentence him on July 3. The sentence had been expected to be three months to a year in county jail or possibly a work furlough program, but new information from the DA’s office could change that.

Atypical case
Nothing about this case is typical. Marcus first was identified as a 6’2” 25-year old man and left to languish for three days in the morgue until his mother provided a police friend with a photo to identify him.

She had not reported Marcus missing to the police because she thought he might be at a friend’s home cooling off because he hadn’t attended Saturday School at Pioneer.

“The other reason i didn't call police was because I had had a similar experience with his older brothers, who were a real handful compared to Marcus. One time his older brother took off for the weekend and when I called the police they said he needed to be missing for 48 hours. So I called his friends and even his friend’s parents protected him. But, I was trying to find Marcus by calling around and I did have my boyfriend, Skip Lightfoot, call the Coroner on Sunday to ask about the hit and run victim and they said that the male was only 6’2” and was about 25 years old. Marcus was 6’7 ½” and 15 so we figured it wasn’t a match. Obviously they didn’t even measure him. No one took any extra effort on this case. If they’d looked at his cell phone they would have seen the Pioneer High School logo on it and phone numbers like ‘mom’ where they could have contacted me,” Aviles said.

The Santa Clara County Coroner’s office would not reveal whether or not a second phone was found with or near the body because that information is only given to the family, according to a medical investigator who would not reveal his name. There was no mention of a second cell phone in the police report. The cell phone mentioned in the police report belonged to Marcus’ sister and was crushed in the accident.

In interviews prior to May 30, both Dee Pettway, president of the Sacramento chapter of Mothers Against Drunk Drivers and Aviles’ attorney Pat Tillman Sr. claim that such sentences are not normal.

Tillman told the Times that he is trying to find out how the District Attorney’s office came up with the sentence. “We met with [deputy district attorneys] Chuck Gillingham and Cindy Hendrickson and they gave us an explanation that made no sense,” he said. “They called it an ‘unavoidable accident,’” which is hard to believe.

“I have no idea why he was offered a plea bargain of that nature. The base line facts don’t make sense to me,” Tillman said.

Gillingham, also prior to May 30 explained that Xinos did not plea bargain, rather Xinos pled guilty to the charges of felony hit and run and misdemeanor DUI and will receive whatever sentence the judge decides. It will be served at the judge’s discretion, he added, whether that is a year in jail or a work furlough. Xinos’ attorney Charles Mesirow told the Times that no matter what he does not think the judge would “allow electronic monitoring,” which would allow Xinos to spend a year in his Almaden Valley home, located across from Leland High School.

“It’s as if the system is working against Marcus’ family as if George Xinos is the victim and not the perpetrator,” said Pettway, who recently moved to the San Jose area.

“I have been treated as if my son is the criminal,” said Aviles, a divorced realtor for Alain Pinel Realtors who says she hasn’t been able to work since the accident. “There were rumors in the press that Marcus was somehow at fault because he was allegedly under the influence but they were false. They held onto my son’s toxicology report for six months! As I expected it came out totally clean; there were no drugs and no alcohol in his system.”

She believes the investigation was poorly done and is concerned that the case wasn’t investigated fully because it happened on Cinco de Mayo. She said the police described Marcus as a 25-year old Hispanic man, who was 6’2” or 6’3”.

Although her ex-husband, Jeff Keppert, said he didn’t blame the DA for the early sentence, he did “blame society for not making these laws regarding drinking and driving stiff enough. I don’t believe Marcus would cross the street against the light because he was the most careful kid you’d ever meet. That would be totally out of character for him.”

Family concerns that the police mishandled the investigation to protect Delores Carr's husband, SJPP Ct. John Carr, who led the investigation are inaccurate, said Chuck Gillingham, Santa Clara County assistant district attorney. He said police followed procedure, and the DA’s office reenacted the accident at midnight shortly after the accident and got the same results. The case was charged on Nov. 13. 2006 by Deputy DA Michael Adams, nearly two months before the current DA, Delores Carr, took office.

“Santa Clara County has prosecuted DUI manslaughter and murder cases,” said Stanford criminal law professor Robert Weisberg. “The county is not soft on these types of crimes, it is tough on them.”

However, the investigation was done without downloading the sensor data module directly after the accident. The supplemental police report stated the reasons why they did not check the SDM at the time of the accident. It wasn’t until the DA’s office requested the check that the police determined Xinos was traveling at more than 30 miles over the speed limit which could change the length of his sentence.

Discrepancies
In a separate investigation ordered by Aviles’ attorney, Pat Tillman Sr., professional engineer Robert Lindskog found discrepancies in the police investigation.

Lindskog, a consultant who investigates transportation and industrial accidents found that “the investigation, analysis and calculations by the San Jose Police Department in this collision was incomplete, inaccurate and wrong in its conclusion that George Xinos was only driving 10 mph or more over the speed limit and the absence of any braking or steering effort by the impaired driver, George Xinos, was not a major cause of this collision.”

Lindskog’s report said the police findings were “severely lacking and incomplete in many respects.” He found five “significant errors” in the police investigation.

First Xinos’ SUV has a sensor data module that records the vehicle’s precise speed and braking five seconds before and past impact. According to Lindskog, the officers did not obtain this information.

Speed calculations for Xinos’ SUV give a range of 48 to 61 mph. The speed limit is posted at 45 mph. Lindskog says, there was no evidence of braking or steering avoidance before the impact.

The police report determined Xinos was traveling at 55 mph. If he had been traveling at the speed limit, it would have taken him six seconds to travel 403 feet, giving Marcus time to clear the traffic lane and the “collision would not have occurred. Therefore, George Xinos driving over the speed limit was a major factor in this collision.”

Lindskog also determined that Xinos could have avoided Marcus by steering the SUV a few feet away from the pedestrian or by slowing down without needing to stop.

Investigators “could have used an exemplar vehicle and pedestrian to establish the visibility distance available to the driver prior to impact,” according to Lindskog’s report.

“There’s something wrong with a system when a diabetic is charged with manslaughter for not taking the right amount of insulin and gets nine years in prison for killing two kids stopped at a stoplight,” said Aviles referring to a recent case in San Jose, “and yet this guy (Xinos), who was on probation for DUI, and who was driving 31 mph over the speed limit is offered a plea bargain with probation and one year in county jail.”

Civil suit
Aviles hired Tillman to proceed with a civil suit against Xinos, but the suit is on hold until the criminal actions are completed, he said.

However, Aviles is hopeful that the criminal action might turn out differently. “On July 3 we hope to have our day in court to see Judge David Cena hopefully reconsider the evidence and call for a jury trial,” she said.

Being on camera doesn’t come naturally to Aviles. “I hated being on stage as a kid. But for some reason when I’m interviewed about Marcus and what happened I guess I come across as fairly articulate. I swore to my sons that if it’s the last thing I do I will get justice for Marcus. All I want is a jury trial. If a jury hears the full evidence I believe that justice will be done.”

In the meantime, Marcus’ friends are also trying to help. Casey Skruch, a sophomore at Leland said he passed out about 200 flyers asking for “Justice for Marcus.” The flyers ask people to call the judge, district attorney and the probation department, sign a petition at the Web site, www.petitiononline.com/050606 and to attend the sentencing of “drunk driver George Xinos as well as the case number, phone numbers and addresses.

“I made red wristbands with R.I.P. Marcus and sold them and donated the proceeds to MADD in Marcus’ name. Marcus kept to himself a lot. He would never be mean to other kids,” Skurch said.

“We worked really hard to let the D.A.’s office know we were serious about getting the word out about Xinos," said Leland student Matt Machado. There were so many phone calls that it blocked the phone lines to their office. Now I hope they’ll give Xinos a jury trial. A jury will convict him for what he did to my friend. A lot of kids feel Marcus is not getting justice. Without the kids from Leland and Pioneer we wouldn’t have gotten this far.”

“The plea bargain made me feel really hopeless about a lot of things. When a man can get away with killing someone while under the influence that contradicts everything our judicial system stands for,” he added.

Special invited guest Elaine Aviles and her son Niko watch the drunk driving dramatization at Leland High School. Aviles lost her son Marcus Keppert to a drunk driver last year at the corner of Almaden Expressway and Camden Avenue. He was 15. Photo by Dan Miranda

In the meantime, “Xinos is having a difficult time. He’s a father himself and he’s coping the best he can,” attorney Mesirow told the Times in a phone interview.

Like others involved in the case, Mesirow said that it’s hard to understand emotionally the sentence of one year when the man was drinking and driving, but “that’s what the law is and the law says that Keppert is responsible for the accident. According to the witnesses and the police, there is no way anyone could have avoided hitting Marcus.”

“My client deeply regrets being in his car that night. He was headed north to get some cigarettes. Even before he hired me he wrote a letter of apology to the boy’s mother on his own. I tried to present it to the mother’s attorney, but they wouldn’t accept it,” said Mesirow. Aviles denies ever hearing of the letter.

“Xinos may have made mistakes but he’s stopped drinking, joined AA, has been seeing a therapist for over a year and hopes to see something positive come out of this. At any rate, he will pay the price for a long time after the case is over,” Mesirow said.

When asked why Xinos left the scene, Mesirow surmised that his client “felt fear, shock and panic, he realized he’d been drinking. At first he thought he’d hit a deer, and he regrets not stopping.”

Since the accident, Xinos has some fear and concern for his own and his family’s safety. After his first court appearance, when his wife was driving away, “it was a zoo out there, with people hitting on the windshield and Xinos inside crying and shaking.”

“It’s also been hard on Xinos’ marriage,” Mesirow said. He would not comment on court records indicating that Xinos’ wife had filed for legal separation in December, but did say the couple is together now and that the case “had been a strain on the family.” Xinos and his wife, Donna Burdziak have a 5-year old son.

Marcus’ mother set up the Web site in hopes of seeking a jury trial and a stiffer sentence for Xinos. It was particularly upsetting when she recently received a blog from a San Jose police officer criticizing the parents lack of supervision. When an upset Aviles sent the blog to San Jose Police Chief Rob Davis he immediately responded with a phone call to not only the Internal Affairs unit but also to Aviles.

"I share the communities' concerns and that is why I've asked for commanding staff to look into the investigation to see if anything could have been done differently,” said Davis.

“Regarding the posting on the blog, if indeed an officer posted this on a blog, I am very disappointed. That is why I immediately launched an Internal Affairs investigation to determine what happened on the blog. I then picked up the phone and called Mrs. Avilas personally so she knows exactly where our department stands in terms of our expectations for professionalism as a department. We, as a department, are doing everything to see that this case can be made right and justice can be served."

Perhaps the best legacy Marcus could leave was summed up by his friend Daniel Montesano, a fellow student at Pioneer, “loved Marcus because he was always there to help anyone. I came upon the accident and saw his body on the ground. I had nightmares for days. Ever since then it’s been my motivation to not drink, smoke or party.”