VISTA, Calif. — Before the jury entered the courtroom Monday morning, Judge Blaine Bowman asked Kellen Winslow II the question that has hovered over this trial since it began two weeks earlier.
Does Winslow intend to testify in his own defense?
From his seat between his defense attorneys, Winslow responded in a calm, clear voice, “I’m not going to testify your honor.”
Winslow is facing life in prison if convicted of all 12 charges against him, including the rape of three women and indecent exposure and lewd conduct involving two others. Even though the former NFL tight end’s attorneys have succeeded in chipping away at the credibility of his accusers and exposing inconsistencies in their stories, the totality of the evidence against him leaves him an uphill battle to secure his freedom.
Attorneys contacted by Yahoo Sports when the prosecution rested its case last Thursday were split on whether Winslow would be wise to take the stand.
Some felt that course of action is too dangerous because he would be facing a grueling cross examination from prosecutor Dan Owens, leaving himself at risk of a damaging mistake that could open the door for the jury to hear about incidents otherwise deemed off limits. Winslow could also come across as arrogant or aloof given his history of brash comments to the media during his football career.
“When there are five counts, he can’t credibly explain away all of it,” said Craig Mordock, of the New Orleans-based Mordock-Barber law firm that specializes in sexual assault defense.
“A very good prosecutor will communicate with his voice disbelief with the jury while cross-examining Winslow, ‘So all of these women are lying?’ It would become about his explanations about why these five women who don’t know each other are all accusing him. He should leave that to his highly skilled attorney to make that argument at closing.”
Other attorneys acknowledged the risks of Winslow testifying but felt it was his only realistic path to an acquittal given the strength of the state’s case. Two weeks worth of testimony from alleged victims and corroborating witnesses has painted Winslow as a sexual deviant with a long history of perverse behavior.
"A lot of attorneys take the stance of not putting their clients on the stand to testify, but I am the opposite of that, especially in this case,” said Arash Hashemi, a Los Angeles criminal defense attorney who has been following the case. “What the district attorney has been doing so far is demonizing him. They took all these different incidents and consolidated them into one big case to show that this guy is a pervert. Going back from high school until now, he has been doing all these things to women."
"In my opinion, he should take the stand, not only because he can testify to the consensual part but also because he'll be humanized for the jury,” Hashemi continued. “The jury won't just see him as a defendant sitting at the defense table. When he takes the stand and testifies, if his attorneys do it right, he's no longer just what the prosecution portrays him to be. He's a human being with a mother, a father, a brother, a life. That might change some of the jurors’ minds about convicting him or not."
Defense attorneys for Winslow called their final witnesses on Monday. Closing statements will begin Tuesday morning. Before jury deliberation began, Bowman instructed the jury that the defendant has a constitutional right not to testify and that members of the jury should not consider that for any reason while weighing the facts of the case.
Winslow is accused of raping a 55-year-old hitchiker and a 59-year-old homeless woman in separate incidents last year near his home in Escondido, California. He also has been charged with the rape of a high school senior after a 2003 house party in the San Diego suburbs when she was 17 and he was 19.
In addition to the rape charges against him, Winslow has been accused of exposing himself to a 59-year-old woman gardening in her front yard and to a 78-year-old woman in the hot tub of a Carlsbad (California) gym.
Winslow has pleaded not guilty to all charges. His attorneys have acknowledged that he has been unfaithful to his wife “numerous times,” but insisted the incidents in question were each consensual.
The Winslow case has drawn significant media attention because of his stature as a former NFL player and the son of a revered San Diego Chargers legend. Winslow is a former college All-American at Miami and first-round draft pick of the Cleveland Browns who was once the NFL’s highest-paid tight end.
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