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Kellen Winslow II trial: Expert says defense given 'gift' thanks to prosecutor 'asleep at the switch'

Jeff Eisenberg
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VISTA, Calif. — Before the eventful first day of testimony in the Kellen Winslow II rape trial, most attorneys familiar with the case suggested the former NFL tight end had little chance of beating the charges against him.

Only hours later, life in prison no longer seems nearly as inevitable.

The first of Winslow’s five accusers got the prosecution off to a shaky start Tuesday when she testified that he picked her up hitchhiking on the afternoon of St. Patrick’s Day 2018, threatened to kill her if she tried to flee and then raped her in a shopping center parking lot. There were obvious questions raised by her initial testimony and then her story unraveled further during cross examination by defense attorney Marc Carlos.

Jane Doe No. 1 had a tough time painting a clear picture of what happened, often backtracking or contradicting herself on everything from the alias her alleged attacker used, to the make of the vehicle he drove, to her own history with alcohol. Worse yet for the prosecution, the unemployed 55-year-old struggled to explain why she didn’t take advantage of the opportunities she had to escape, to use her cell phone to call 9-1-1 or to shout for help.

“When you’re presenting a case to 12 people, the first thing they see and the last thing they see is important,” said Craig Mordock of the New Orleans-based Mordock-Barber Law Firm, which specializes in sexual assault defense. “You always sandwich the boring and weak witnesses in the middle.

“If this is your first opportunity to grab the jury’s attention and they already have reasonable doubt, then they are going to view the rest of the trial through a prism of reasonable doubt.”

In addition to Doe No. 1, the prosecution has charged Winslow with raping a 59-year-old homeless woman and an unconscious 17-year-old at a 2003 house party. He also allegedly exposed himself to a neighbor while she was gardening in her front yard and to a 77-year-old woman in a jacuzzi at a gym near his Encinitas home.

Those four women will each get their chance to testify against Winslow before his trial is over, but the performance of Doe No. 1 is an ominous sign for the government’s case.

Three of the seven felony counts facing the 35-year-old former first-round draft pick stem from the alleged rape of Jane Doe No. 1. Prosecutors typically open with their strongest evidence and most unflappable witnesses in order to set the tone for the rest of the trial.

Former NFL football player Kellen Winslow Jr. looks at attorney Marc Carlos during his rape trial. (AP)
Former NFL football player Kellen Winslow Jr. looks at attorney Marc Carlos during his rape trial. (AP)

“You want to have credibility at the start and end of your case,” said Jan Ronis, a San Diego-based defense attorney who is not involved with the Winslow case but is following it closely.

“As a general principle, you should start somewhat strong and at least lay a foundation for a case. You sure don’t want to put a turkey up first and start with the jury wondering why they’re there.”

The first day of testimony turned rough for the prosecution when the subject of alcohol came up early in the cross examination of Doe No. 1.

Carlos asked Doe No. 1 if she had been drinking before her encounter with Winslow. She said no.

Carlos then asked her if she intended to drink later that day. She again said no.

Carlos concluded by asking if she had ever consumed alcohol. She said she hadn’t drank in 30 years.

Had prosecutor Dan Owens objected to that last question, Judge Blaine Bowman almost certainly would have deemed it irrelevant and struck it from the record. Owens instead allowed Doe No. 1 to answer it, which enabled Winslow’s defense attorneys to introduce her lengthy list of arrests for public intoxication, including five since 2014.

The most recent arrest, Doe No. 1 claimed was because she had the flu and drank too much cough syrup. Several of the other ones, Doe insisted either did not happen or she did not remember.

The episode was damaging for the prosecution because this case will ultimately come down to the credibility of Winslow’s accusers. Winslow has not denied that he had sex with Doe No. 1 and insists the encounter was consensual.

“I can’t imagine the defense expected to be handed such a gift,” said Philip Holloway, a legal analyst and criminal attorney with the Georgia-based Holloway Law Group. “Her answer regarding alcohol is a classic example of a witness ‘opening the door’ as we say in the business to further cross examination about things that would otherwise be well off limits.

“The prosecutor was asleep at the switch. An immediate objection should have been made and this whole issue could have been avoided.”

Doe No. 1 testified that she asked Winslow to take her about a mile and a half down Santa Fe Avenue in Encinitas when he picked her up, but the tone of their conversation changed soon after she got in his vehicle. He allegedly told her he intended to rape her and denied her pleas to pull over and let her go.

Where Winslow allegedly took Doe No. 1 was to the back of a crowded Encinitas shopping center, one teeming with customers on a Saturday afternoon.

(Amber Matsumoto/Yahoo Sports illustration)
(Amber Matsumoto/Yahoo Sports illustration)

She admits she didn’t scream for help or run even though there was a Von’s grocery store, a 24-Hour Fitness and a Sushi restaurant all within 50 feet of where Winslow parked. She insists she was too overcome with fear of her bigger, stronger assailant.

"He threatened to kill me, and I really believed that he would have," she testified.

Doe No. 1 instead said she followed Winslow to a 5-foot tall chain link fence that separated the parking lot from a field adjacent to an Interstate 5 onramp. Winslow allegedly climbed the fence first and began to undress. Rather than flee, Doe No. 1 followed, a point that Carlos highlighted during cross examination.

“The man you’re afraid of is now separated by a fence that’s at least 5 feet, right?” he asked.

“Yes,” Doe No. 1 responded.

“But instead of running, what you do is jump over the fence on your own accord?” he asked.

“Yes,” Doe No. 1 responded again.

Something spooked Winslow enough that he changed his mind and said he wanted to go back to his car. Once again, Doe No. 1 did not run or signal a passing car for help after he scaled the fence first, instead following him back to the vehicle.

Doe No. 1 said she gave Winslow oral sex for several minutes before he climbed into the passenger seat and penetrated her vaginally. When he was done, he allegedly ordered her out of his car and drove off, leaving her scared and fuming.

During her testimony on Tuesday, Doe No. 1 said she experienced heavy vaginal bleeding from the alleged attack. Only when reminded by Carlos that she had previously told police she was menstruating did she reverse course.

Sequences like that were the norm from Doe No. 1 during three hours of testimony that was frequently scattered and contradictory. That doesn’t mean she wasn’t raped or her story isn’t true, but it’s not ideal for the prosecution in a case where the standard for acquittal is reasonable doubt.

Jane Doe No. 2 is expected to testify Wednesday and Jane Doe No. 3 could also take the stand as soon as Wednesday afternoon. There’s now even more riding on their testimony than it seemed before the trial began.

“I would expect the prosecution to try to begin with strong evidence and witnesses,” Holloway said. “If the defense is successful in their attacks on the credibility of the first of the alleged victims, that could be a bad sign of things to come for the prosecutor’s case.”

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