July 12, 2007

Hit and run likely will go to jury trial

By Carol Rosen
Editor

George Xinos, the 42-year old driver whose guilty plea in the hit and run death of Marcus Keppert on May 6, 2006 [see May 30 and June 14 issues], was busted shortly after new evidence was turned up, pleaded not guilty to extended charges in court on Friday, July 6.

The parties will meet again in courts on Aug. 17 for a short conference on the case’s status. No trial date has been set, although it can occur as early as October.

The new charges stem from evidence police found in Xinos’ car that indicates he was driving his SUV at 76 mph instead of the 50- to 55 mph the police indicated earlier. The new evidence was found in the car’s sensor data module, an instrument similar to an airplane’s black box, which the District Attorney’s office asked police to check prior to asking Hon. Judge David A. Cena to disregard the plea. The SDM records data from the car, including its speed.

Xinos earlier pleaded guilty to felony hit and run, which carries a sentence of three months to one year. However, he now is charged with vehicular manslaughter with gross negligence and felony drunken driver in addition to the hit and run charge which carries a sentence of no less than 15 years.

Xinos’ attorney Chuck Mesirow told the Times that several witnesses to the accident blamed Keppert for crossing against a red light in dark clothing. He claims one witness followed Xinos from the scene to tell him that there wasn’t anything Xinos could have done to avoid hitting Marcus.

Mesirow said that the status of the situation is in its early stages. “It’s very early in the case, there are legal and factual challenges to the charges,” he said. “The reality of this is that this situation needs to play out. The District Attorney bent under emotional pressure,” and inappropriately charged Xinos with gross negligence, the worst kind of vehicular manslaughter, Mesirow said.

Police initially booked Xinos on felony hit and run and felony driving under the influence. A blood test taken two hours after the accident showed Xinos had a blood-alcohol level of 0.18 nearly two times the legal limit. Xinos, at the time of the accident, was on probation for driving under the influence.

However, prior to busting the plea Chuck Gillingham, Santa Clara County assistant district attorney in charge of the case, indicated the police had followed procedure. The DA’s office reenacted the accident and got the same results, but the police didn’t believe the SDM was working so they didn’t download the speed results.

Keppert’s mother, Elaine Aviles, kept the case in the news contacting reporters and the DA’s office indicating that justice was not being served.

“I’m elated,” she told the times. “The DA’s office pressed for the charges to include enhancement. All of the things I’ve been saying from the beginning. I’m appalled, though, that Mesirow says we bullied the judge and that we are a bunch of vigilantes. I want people to know I don’t want vengeance I just want justice. After the trial I’ll have to deal with the results,” she said.

“I have been treated as if my son is the criminal,” said Aviles, in an earlier Almaden Times article. “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.”

Pat Tillman Sr., Aviles’ attorney filed a civil suit and used consultant Robert Lindskog to research the accident. Lindskog found several discrepancies in the police investigation, most notably that Xinos was driving faster than 10 mph over the speed limit. In his report, Lindskog said that if Xinos was traveling at 55 mph, it would have taken him six seconds to go 400 feet allowing Keppert to clear the traffic lane without being hit. He also indicated that at 55 mph, Xinos could have swerved to miss Keppert.