Kellen Winslow Jr sexual assault trial: A defense attorney’s take

When the rape and sexual misconduct trial of former NFL star Kellen Winslow Jr. ended on June 11 in San Diego, court observers were left with more questions than answers. The jury of eight men and four women deliberated for five days and delivered verdicts on four charges, but they remained hopelessly deadlocked on the remaining eight counts. With a majority of jurors voting in favor of guilt on those charges, the prosecution decided to move forward with a retrial.

The second trial, scheduled to begin Sept. 30, could provide answers to some of the questions.

Five women — designated Jane Does 1 through 5 — testified at the first trial about conduct that included forcible rape, sodomy, oral copulation and lewd conduct. A unanimous jury found Winslow guilty of forcible rape against Jane Doe 2, a 58-year-old homeless women who said he picked her up in his SUV, drove her to a remote location and assaulted her; a count of lewd conduct against Jane Doe 3, a 58-year-old who testified that Winslow exposed himself to her as she was gardening in her yard; and a count of lewd conduct toward Jane Doe 5, a 77-year-old who claimed he made sexually suggestive gestures and comments while they were at the local gym. Winslow was acquitted on a second lewd conduct count involving Jane Doe 5, and the jury rejected a multiple rape charge that would have enhanced the rape conviction.

The jury deadlocked on charges that included kidnapping, forcible rape and forcible oral copulation in 2018 involving 55-year-old Jane Doe 1, a hitchhiker; and forcible rape and rape of an unconscious person in 2003 based on an alleged attack of Jane Doe 4 at a party when she was 17 years old and Winslow was 19. The jurors also deadlocked on charges of willful cruelty to an elder and battery against an elder involving Jane Doe 5.

On retrial, both sides will have an opportunity to do things better, smarter or simply differently. In the first trial, San Diego Deputy District Attorney Dan Owens played every trick in the book, mostly to the prosecution’s advantage. In September, Owens will have a new tool in his arsenal: Winslow’s conviction on a felony rape charge. The defense, likely to be the two lawyers who defended Winslow during the first trial, Brian Watkins and Marc Carlos, will move not to allow this fact to be introduced into evidence, but the judge is unlikely to be sympathetic to their position: The conviction is evidence of a broader pattern of behavior. If allowed, Owens will use every available opportunity to exploit the conviction. Improved witness management will be critical. Owens will need to carefully control Jane Doe 1, who has credibility issues, on direct examination so that the defense doesn’t further unravel her on cross.

The defense will need to be both agile and strategic. Can they make a credible argument that the San Diego jury pool is tainted by media coverage of the first trial? Such a position will be hard to support, given the region’s size and the percentage of people who don’t follow the news; thus, a change of venue is highly unlikely. If it’s introduced into evidence, how will the defense downplay and disarm the prior forcible rape conviction? Kellen Winslow Jr. declined to testify at the first trial. Will the defense decide to put him on the stand this second time? The defense continues to assert that the sex was consensual.

One controversial issue much discussed during the first trial was the prosecution’s strategy to aggregate five alleged victims into one trial. That strategy proved a virtual windfall for the prosecution. Consolidating cases not only saved taxpayer money and streamlined the legal process, but it was nearly fatal to the defense’s case. Individually, the women’s stories were fraught with problems that would not likely have elicited large margins in favor of conviction. Jane Doe 1 was belligerent, inconsistent and far from credible. Jane Doe 3 could not positively identify Winslow, with whom she testified she had never made eye contact. Jane Doe 4, who asserted she had lost consciousness after three beers while at a party more than a decade ago, was known at the time to party and drink regularly.

The defense’s caution to jurors during closing arguments to look at each case on its own merits was lost amid the prosecution’s drumming of multiple charges showing a pattern of depravity: “It was she said, she said, she said, she said, she said,” expounded Owens. Cases that, on their own, had no teeth suddenly assumed outsized proportions. This alone should be grounds for appeal.

Beyond this, the reading of a partial verdict prior to conclusion of jury deliberations was an open invitation for a motion to overturn. Partial verdicts are never read prior to end of trial, and for good reason: The jury’s ability to observe a defendant’s reaction to the verdicts can be extremely prejudicial to his case. Although jurors remained deadlocked on the other charges, they couldn’t help but be influenced by the bewilderment on Winslow’s face when the verdicts were read.

The court denied a defense motion to dismiss the two remaining rape charges — those involving Jane Does 1 and 4 — against Winslow on the strength of the jury’s negative finding of multiple rapes in the Jane Doe 5 verdict. The jury may have been mistaken when reaching that decision, said the judge. To which the defense posited that a jury mistake should provide a basis for completely setting aside the verdict pursuant to California Penal Code Section 1161:

“When there is a verdict of conviction, in which it appears to the Court that the jury have mistaken the law, the Court may explain the reason for that opinion and direct the jury to reconsider their verdict, and if, after the reconsideration, they return the same verdict, it must be entered; but when there is a verdict of acquittal, the Court cannot require the jury to reconsider it. If the jury render a verdict which is neither general nor special, the Court may direct them to reconsider it, and it cannot be recorded until it is rendered in some form from which it can be clearly understood that the intent of the jury is either to render a general verdict or to find the facts specially and to leave the judgment to the Court.”

The defense, in making its motion, argued that the jury misunderstood the law. It could not have found Winslow guilty on counts that required the same elements as other counts on which he was not found guilty. San Diego Superior Court Judge Blaine Bowman denied the motion.

Although the chances are slim, an appellate panel could well find grounds for review once the new trial has concluded. From ordering retrial of the cases on an individual basis to upholding the defense’s motion for dismissal of additional rape charges, there may be sufficient legal grounds for overturning all or part of the outcome. 

Arash Hashemi is a Los Angeles criminal defense lawyer and the host of “Hashing Out the Law” podcast.