Kellen Winslow II trial: Judge declares mistrial on remaining counts

Jeff Eisenberg
·6 min read

VISTA, Calif. — After three weeks of graphic testimony and six days of contentious deliberation, the jury tasked with deciding the fate of Kellen Winslow II failed to reach a unanimous verdict in eight of the 12 counts against him.

As a result, the legal battle over the former NFL tight end’s future appears far from over.

Shortly after Judge Blaine K. Bowman on Tuesday declared a mistrial on the remaining counts against Winslow, prosecutor Dan Owens hinted that the San Diego County District Attorney’s Office is likely to attempt to retry those charges. Owens cited several incentives to pursue a second trial, namely the potential for more convictions that could dramatically strengthen Winslow’s punishment.

Although jurors on Monday found Winslow guilty of raping a 58-year-old homeless woman by the side of a dimly lit Encinitas road in May 2018, he for now faces a maximum penalty of just nine years in prison. He would serve up to eight years for the forcible rape conviction and six months apiece for separate misdemeanor convictions of lewd conduct and indecent exposure.

Winslow began the trial facing the possibility of life in prison after being charged with seven felonies, including the alleged rape of three different women. The majority of jurors voted in favor of guilt in each of the eight deadlocked verdicts, including 10-2 votes on several of the felony charges.

“When a jury’s vote does favor guilt, that is a significant factor in considering whether or not to proceed with retrial,” Owens said.

“Ten jurors did feel very strongly that he had committed forcible sexual offenses against more than one victim. That would lead to a lifetime prison term and that is a fact we will consider very strongly when considering how to proceed with the case.”

The soonest a potential second trial for Winslow could begin is July 29. That appears extremely optimistic given the legal wrangling the prosecution’s further pursuit of the case could inspire.

Assuming that he serves as judge again, Bowman would undoubtedly hear arguments from both sides for and against the legality of a second trial. He would also have to decide whether jurors should be informed of Winslow’s three guilty verdicts from the first trial.

All three of Winslow’s alleged rape victims would have the opportunity to testify again since at least one deadlocked count applies to each of them. Jurors did not reach a unanimous verdict on the alleged sodomy of the homeless woman, nor did they reach a consensus on the alleged 2018 rape of a 54-year-old unemployed woman Winslow picked up hitchhiking or the 2003 rape of a high school senior after a house party.

Defense attorneys argued that each of those encounters was consensual, seizing on the holes and inconsistencies in the accusers’ stories in hopes of providing the jury with reasonable doubt. In the aftermath of Tuesday’s outcome, defense attorney Brian Watkins promised to appeal the three guilty counts and portrayed the remaining deadlocked verdicts as symptoms of the weakness of the prosecution’s case.

“Our position was always that these cases would not be able to stand alone,” Watkins said. “We fought to keep these cases separate. We lost that battle, we took on all these cases at once and we still prevailed to the point where we did not get convicted of everything.

“Clearly this case is not over. We will continue to litigate this case until our client is exonerated.”

There were signs this case was headed for a hung jury long before it became official Tuesday morning. Jurors deliberated for nearly a week, asking last Thursday to have the entire testimony of one alleged rape victim read back and then sending a cryptic note to the judge the following day that suggested discussions had gotten contentious.

When the jury sent the judge another note on Monday saying the group was deadlocked, Bowman didn’t immediately accept that outcome. He asked jurors to resume deliberations Tuesday morning despite objections from Winslow’s defense attorneys, who were happy with the outcome and were already vehemently advocating for the judge to declare a mistrial on the remaining charges.

Kellen Winslow sits in court, awaiting the judge's decision to declare a mistrial on the remaining counts. (CourtTV)
Kellen Winslow sits in court, awaiting the judge's decision to declare a mistrial on the remaining counts. (CourtTV)

“They’ve indicated that they are deadlocked,” defense attorney Marc Carlos said. “ ‘Deadlocked’ is the word they used. It’s our request that the court takes that finding now.”

Responded Bowman, “I’m not opposed to declaring them hopelessly deadlocked. I want to give them time to go home and sleep on it.”

Shortly after 10 a.m. on Tuesday, Bowman received a new note from jurors informing him they had made no progress.

“Is it your judgment that further deliberation will not result in a verdict?” Bowman asked the foreman.

“All of us agree with that,” the foreman replied.

For now, the outcome of the case is a victory of sorts for Winslow’s defense team given the mountain of testimony and evidence he was facing.

"I think when a defendant is facing spending the rest of his life in prison and the most he's looking at now is nine years, it's fair for the defense to declare victory," said Philip Holloway, a legal analyst and criminal attorney with the Georgia-based Holloway Law Group. "For now. He can be retried on the remaining charges, if the prosecutor is so inclined."

It’s understandable that Bowman would not want to declare a mistrial in a high-profile case that cost the prosecution thousands of dollars to assemble.

Winslow is an ex-NFL tight end and the son of Kellen Winslow Sr., a member of the Pro Football Hall of Fame who remains a beloved figure in the San Diego area. The younger Winslow earned more than $40 million in salary during a 10-year NFL career highlighted by four seasons with 75 or more catches and a 2007 invitation to the Pro Bowl.

The stature of the Winslow family and the graphic nature of the case ensured that his rape trial would attract as much media coverage as a big-time sporting event. A TV cameraman even referred to Tuesday’s post-verdict interviews as “Winslow postgame stuff,” drawing a wry chuckle from the former tight end’s defense attorneys.

“Did we win?” Carlos asked dryly.

For now, yes. But even after one month-long trial, the fight appears to be just beginning.

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