No jail for dad in child’s car death

Brian Palmer Gilbert, holding hands with his wife Cheryl, leaves Superior Court in San Jose Friday after receiving a sentence of probation and community service.

A San Martin man convicted of involuntary manslaughter for
accidentally leaving his infant child to die in the back seat of a
hot car will not serve jail time for the act, a judge ruled
Friday.
SAN JOSE – A San Martin man convicted of involuntary manslaughter for accidentally leaving his infant child to die in the back seat of a hot car will not serve jail time for the act, a judge ruled Friday.

Santa Clara County Superior Court Judge Rene Navarro sentenced Brian Palmer Gilbert to four years’ formal probation and 500 hours of community service as well as several hundred dollars in fines and restitution.

In delivering the sentence before Gilbert’s family members, Navarro called the case a “horrible tragedy,” noting that although Gilbert and his family had suffered, the 25-year-old father’s conduct had fallen short of the standard of care his infant son deserved.

“We should not lose sight of the fact that the pain and suffering transcends the family and affects the community as a whole …” he said.

Gilbert, who met privately with his defense attorney Sam Polverino and family members in the hallway before the sentence was passed down, showed little emotion during the hearing. He and wife Cheryl sat close and whispered quietly to each other before the hearing began and rushed past reporters outside the courthouse afterwards.

Outside the courtroom, Brian Gilbert’s brother Tom said he disagreed with the district attorney’s initial decision to prosecute the case at all, but expressed some relief in the sentence.

“I appreciate their desire not to turn the screws at the end,” he said.

Polverino also expressed some relief.

“I agree with the court’s decision not to incarcerate my client,” he told reporters outside the courthouse. “The pain my client and his family have had to endure transcends anything that a court can do.

“This pain started a year ago, it continues today and it will follow my client wherever he goes.”

Navarro’s sentence was in line with what was suggested by Santa Clara County Deputy District Attorney Dan Nishigaya, who prosecuted the case.

“It’s our position the interest of justice in this case does not demand the defendant serve a term of incarceration,” the prosecutor told the judge.

However, he asked that the community service be related to educating the community about Gilbert’s experience, perhaps through a public-service announcement or video message of some kind.

“It’s something I’d like to see,” Nishigaya said. “The defendant has stated a desire to help teach other people what he’s learned from this tragedy, and we think that would be a lasting and positive way to accomplish that.”

Navarro ordered the community service to be “beneficial to the community at large,” but ordered the prosecution and defense to work together with the probation department to fashion the details of what it would entail.

Nishigaya also asked the judge to send Gilbert to mandatory counseling to help him recognize the effects of his interest in animated videos and games. As evidence in the trial, Nishigaya noted that Gilbert had a previous misdemeanor conviction for taking animated video games from an electronics store.

“He’s shown very strong interest in animated videos games and movies, and as the result of that interest he’s suffered two criminal convictions at the age of 25,” Nishigaya said.

Navarro referred Gilbert to a psychological treatment program.

While Gilbert will not serve jail time, Polverino’s attempt to get a new trial and potentially reverse the conviction that will now go on Gilbert’s record was not successful.

Navarro denied Polverino’s motion Friday for a new trial on grounds that evidence of Gilbert’s history as a good parent and diagnosed attention defect disorder was improperly withheld from jurors during the trial. A juror reportedly wrote a letter after the trial saying the evidence would have swayed her decision.

Gilbert woke around noon at his parents’ home in San Martin on July 24, 2001, strapped 5-month-old Kyle into a child seat and drove to his brother-in-law’s south San Jose home to watch so-called “anime” cartoons the two men had picked up a few days before during a trip to San Diego.

When Gilbert returned to the Nissan Sentra three hours later to go for food, he discovered the baby unconscious and blue. Although ambient air temperature that day was in the 80s, experts said temperatures in the car could have reached 120 degrees.

Gilbert faced up to four years in state prison for the conviction handed down by a jury in July after two days of deliberation.

Polverino said Gilbert is trying to put his life back together.

“This is a continuing tragedy,” he said. “He’s trying to do the best to deal with the death of his son. His wife is doing the same and his family is doing the same. It’s not something that’s going to disappear tomorrow.”

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