VISTA, Calif. — Before they disappeared behind closed doors to determine the fate of Kellen Winslow II, jurors in the ex-NFL tight end’s rape trial spent Tuesday listening to two entirely different accounts of the high-profile case.
The closing argument delivered by prosecutor Dan Owens painted Winslow as a perverse monster who has preyed on vulnerable women for sexual pleasure. Only hours later, defense attorney Marc Carlos described Winslow as the victim of wrongful accusations and mistaken identity.
Winslow is facing life in prison if convicted of all 12 charges against him, including the rape of a 55-year-old hitchhiker and 59-year-old homeless woman last year and the 2003 rape of a high school senior when she was 17 and he was 19. A neighbor of Winslow’s has also accused him of exposing himself to her in her front yard and a 78-year-old woman alleges that he stroked himself in front of her twice at a public gym.
Since testimony in Winslow’s rape trial began two weeks ago, the defense has largely relied on Carlos’ skillful cross examination to chip away at the credibility of the five alleged victims. Carlos’ closing argument essentially served as the defense’s only chance to sum up the points he previously raised and to lay out grounds for why Winslow should be acquitted of all charges
In a calm, clear voice, Carlos went case-by-case attacking the “major-league holes” or inconsistencies in each accuser’s allegations and trying to establish reasonable doubt. Carlos also pleaded with the jury to assess each case individually rather than allowing themselves to be swayed by the totality of the evidence.
“You will not get an instruction anywhere that says, ‘Where there’s smoke, there’s fire,’” Carlos told the jury. “You will not get that one. But what you will get is that each charge must be proven beyond a reasonable doubt, each and every charge. Do not fall into the trap of picking pieces of evidence and making another case stronger. It doesn’t work that way.”
In his more than two-hour closing argument on Tuesday morning, Owens described Winslow’s conduct as “callous,” “brazen,” “depraved” and “despicable.” Owens argued Winslow proved himself a sexual predator by taking from women who could not defend themselves and then discarding them “like a piece of trash because that’s what he thought they were.”
While Winslow’s attorneys have described the alleged rapes as consensual encounters, Owens repeatedly pointed out that the defense has offered zero evidence proving that. That’s as close as Owens was allowed to come to calling attention to the fact that Winslow declined to risk testifying in his own defense.
The point that Owens hammered time and time again was that five women who don’t know one another have accused Winslow of separate incidents of sexual misconduct. He urged the jury to avoid missing the forest through the trees by getting bogged down in the details Carlos raised.
“This case is not a he-said, she-said,” Owens said. “This case is a she-said and she-said and she-said and she said and she said. Five separate women, five separate victims, all corroborated by each other. This man is a sexual predator who has victimized all of these women
“Lightning certainly doesn’t strike twice, let alone five times.”
The Winslow case has drawn local and national media attention the past two weeks because of his stature. The son of a San Diego Chargers legend is a former All-American at the University of Miami who briefly became the highest-paid tight end in the NFL before his nine-year pro football career fizzled out.
Kellen Winslow Sr. has been a constant presence in the courtroom, sitting as close as possible to the defense table every day in support of his son. Janelle Winslow, Winslow’s wife of 13 years and mother of his two children, made her first appearance of the trial on Tuesday, sitting next to Kellen Sr. for the defense’s closing argument before leaving right afterward.
There was no clear indication which way members of the jury were leaning Tuesday as they listened to Owens and Carlos make their cases. For the most part, jurors appeared engaged throughout both presentations, sitting upright in their seats, making consistent eye contact and jotting down occasional notes.
A mixed verdict is the most likely outcome, according to three criminal defense attorneys who aren’t directly involved with the Winslow case but have followed it closely.
They expect Winslow to be found not guilty of raping the first woman to accuse him last year, but they said he is at risk of a guilty verdict in the other two rape cases, as well as the incidents of lewd conduct and indecent exposure. The fact the government was able to put all five crimes into one case makes it more difficult for Winslow’s attorneys to prove his innocence.
“When you have person after person after person coming forward to accuse someone of doing awful sexual things, it’s difficult to explain everything away,” said Philip Holloway, a legal analyst and criminal attorney with the Georgia-based Holloway Law Group. “A jury might find fault with 1 or 2 accusations, but at some point the spillover effect becomes insurmountable. That’s why I think we’re going to see convictions on at least some of these things.
“I would be surprised if he’s convicted of the rape of Jane Doe 1. I would not be surprised if he’s convicted on the charges of lewd conduct and indecent exposure. I think the real battle ground in this case is the other two alleged rapes, particularly Jane Doe 4. If I were the defense, that’s the one I would be most worried about.”
Questions about Jane Doe 1’s credibility linger
There’s no mystery why Carlos spent more than 30 minutes of his closing argument addressing the alleged rape of Jane Doe No. 1. This is clearly the prosecution’s weakest case, and Carlos seized the opportunity to highlight its flaws.
Doe got the prosecution’s case off to a shaky start two weeks ago when she was caught in an apparent lie during cross examination. The unemployed 55-year-old claimed she hadn’t drank any alcohol in 30 years, a misstatement that enabled Carlos to introduce her lengthy list of arrests for public intoxication, including five since 2014.
According to Doe, her most recent arrest came because she was fighting the flu and consumed too much cough syrup. The others, Doe claimed either did not happen or she did not remember.
To Carlos, it was a damaging sequence in a case that ultimately comes down to the believability of Winslow’s accusers.
“Credibility is everything in this case, and you have a woman who lied to you,” he said.
To Owens, it was a mistruth that’s inconsequential to her alleged rape.
“You know that she’s private,” he said. “You know that she’s proud. You know that she tried to hide her alcoholism from you. It’s for you to judge how important that fact is when you try to judge what happened to her.”
Even before Doe’s apparent lack of truthfulness, her problematic account of her alleged attack might already have planted reasonable doubt in the minds of the jury. She frequently veered off topic and often contradicted herself while testifying that Winslow picked her up hitchhiking in Escondido 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.
Under cross examination, Doe struggled to explain why she didn’t take advantage of multiple chances she had to escape, to use her cell phone to call 9-1-1 or to shout for help.
At one point during the alleged attack, Doe was on the opposite side of a 5-foot tall chain link fence from Winslow, some 50 feet away from a crowded Von’s grocery store, a 24-Hour Fitness and a sushi restaurant. Instead of screaming or fleeing, she followed Winslow over the fence, a decision she attributed to fear of her bigger, stronger assailant but defense attorneys painted as symptomatic of consensual sex, not rape.
“A naked man, a naked perpetrator, a naked rapist on the other side of the fence and you are 20 feet from freedom,” Carlos said Tuesday. “Don’t tell me she was frozen in fear. If that’s not reasonable doubt, I don’t know what is.”
Desperate to rehabilitate Doe’s image in the eyes of the jury after her erratic performance on the stand, Owens accepted her daughter’s eleventh-hour offer to testify. That decision backfired last week when Carlos was able to introduce to the jury that the daughter had only volunteered to take the stand after watching and reading media reports casting doubt on the credibility of her mother’s testimony.
Worse yet, Doe’s daughter appeared on CourtTV the day she testified and set up a GoFundMe page soliciting $50,000 in donations for her mother. As a result, the defense called her back to the stand on Monday to portray that as evidence that Doe and her family are opportunists who targeted Winslow for his money.
Owens acknowledged Tuesday that some of what Doe said on the witness stand was “bizarre” and “untruthful” but encouraged jurors to consider the similarities between her alleged rape and the story told by Jane Doe No. 2. Attorneys familiar with the case are skeptical that will be enough to secure a guilty verdict and expect Winslow to be acquitted on these charges.
“As a defense attorney hearing the evidence, I’d be upset if he was found guilty in the case of Jane Doe No. 1,” San Diego criminal attorney David P. Shapiro said. “That’s not to say that something didn’t happen, but it just wasn’t proven beyond a reasonable doubt.”
Why Jane Doe No. 2 and 4 could redeem prosecution’s case
If Owens found himself trying to patch holes in Jane Doe No. 1’s version of events during his closing argument, he could take solace that his other two alleged rape victims were stronger witnesses. Jane Doe No. 2 and 4 helped redeem the prosecution’s case with their harrowing, poignant testimony, one refusing to even glance in the direction of her alleged attacker and the other dabbing at her red eyes and tear-stained cheeks with a handkerchief as she spoke.
Whereas Winslow is the son of a football star and has lived a life of privilege, Doe No. 2 hails from society’s opposite end. Most nights, the 59-year-old homeless woman explained that she sleeps at the train station in downtown Encinitas, behind a wall where passing sheriffs can’t spot her.
Their two worlds collided because Winslow would allegedly drive his black Hummer through downtown Encinitas and offer Doe food or cash or rides to a nearby shelter. Once he allegedly offered to pay $50 for sex but Doe testified she declined because she’s “not that kind of person.”
At around 8 p.m. on Mother’s Day 2018, Doe said she got into Winslow’s car after he offered to take her to get coffee. She alleges Winslow instead violently raped her by the side of a dimly lit Encinitas road, ejaculating into the dirt in order to avoid leaving DNA evidence.
“She didn’t know what to do,” Owens said. “She was afraid. And she allowed him to do what he wanted. She believed there was no way out. She didn’t struggle. She said she was in survival mode.”
Carlos argued Winslow had been wrongly accused Tuesday by questioning the lack of physical evidence in the case. He pointed out Doe had no bruising or DNA under her fingernails, nor did she have marks on her neck from where Winslow allegedly choked her so hard that she could scarcely speak or breathe.
“Are you telling me that a 240-pound football player is choking the life out of you and there’s no marks?” Carlos asked incredulously. “This is a former NFL tight end with big hands. This is not a 150-pound man.”
The rape allegations against Winslow levied by Jane Doe No. 1 and No. 2 inspired a third alleged victim to come forward. Only after reading about Winslow’s arrest last June did Jane Doe No. 4 tell of a traumatic story she had only previously shared with a close high school friend, an ex-boyfriend and her husband.
Last Wednesday, Doe No. 4 testified Winslow raped her after a 2003 house party in the San Diego suburbs. She recalls waking up from a drunken fog to find herself on all fours on an unfamiliar bed with Winslow penetrating her from behind while pushing her face into another man’s penis.
When Doe realized what was happening to her, she testified, “I told him to stop. Just stop. Just stop.” Instead of listening to her pleas, Doe alleges Winslow flipped her over onto her back and continued to have sex with her until her other alleged assailant intervened on her behalf.
“She cried no. She said stop. And he didn’t,” Owens said Tuesday. “That’s a forcible rape.”
In his closing argument, Carlos questioned if the incident happened the way Doe said it did — or even if it happened at all. He noted that the police officer who fielded her initial call last June reported that she claimed Winslow had given her alcohol in his car and that she woke up in the backseat to Winslow’s friends digitally penetrating her and fondling her breasts.
“This is what she told Sergeant Emig, which is completely different to what she testified to in the preliminary hearing and again at the trial,” Carlos said.
“The most important thing is that not only does Jane Doe No. 4 claim it’s not true, she claims she never said it. If we are to believe Jane Doe No. 4, that means that Sergeant Emig had to have made this whole thing up.”
Carlos also took aim at Doe’s story that she blacked out after downing so few beers. Doe previously conceded that she, too, wonders how that happened given that Winslow was never in position to drug her, nor had she previously experienced a blackout from two or three drinks.
Why the less serious charges matter
The significance of the less serious allegations against Winslow is the pattern they establish. Winslow might not serve much jail time if only convicted of lewd conduct or indecent exposure, but the allegations levied by Jane Doe No. 3 and No. 5 could color the jury’s perception of the three rape charges.
Jane Doe No. 3 is a neighbor of Winslow’s who accused him of exposing his erect penis to her last year while she was gardening in her front yard. It was the second time Winslow had allegedly approached her in a matter of weeks.
“This defendant was motivated by sexual depravity,” Owens said Tuesday. “Had she not run, had she not screamed, had she not called out that her husband was there, what was going to happen to her?”
The defense argues this is a case of mistaken identity, a claim that is hard to fathom given the preponderance of evidence.
Although Jane Doe No. 3 failed to identify Winslow in a lineup or in the courtroom, she did describe a tattooed cyclist with a blue backpack and clothing matching the description of gear the police seized at Winslow’s house. Police also obtained GPS data from Winslow’s Strava fitness application corroborating that he was bicycling at the location where the alleged incident occurred.
Jane Doe No. 5 is a 78-year-old woman whose allegations stemmed from a pair of incidents that occurred at a Carlsbad gym just a few months ago when Winslow was out on bail.
On one occasion, Winslow allegedly stroked himself while sitting on an exercise machine just a few feet away from the woman and looking directly at her. On another, Winslow allegedly spotted her alone in the jacuzzi, sat alongside her and masturbated in front of her.
“She had no dog in this fight,” Owens said. “She’s not motivated by anything else besides coming to court and telling the truth. She said she was petrified of this man.”
The only way Carlos could combat this allegation was to point out that the woman admitted she could not see beneath the bubbles of the jacuzzi to know for sure if Winslow was masturbating. Carlos contended that Jane Doe No. 5 made a mistake fueled by her paranoia and fear from having seen news reports of Winslow’s alleged misdeeds.
It’s a thin argument, which could spell problems for the defense as the jury weighs the rest of the case.
“Jane Does 3 and 5 show a pattern of behavior that’s concerning for the defense,” Shapiro said. “If he was that brash and out of control in public, you can only imagine what he would be like when alcohol is flowing at a party or when alone with a transient in a car.”
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