Jurors in the Kellen Winslow II rape trial had just finished having some previous testimony read back to them Friday afternoon when the foreperson slipped a hand-written note to the bailiff on the way out of the courtroom.
It contained two unusual requests that drew a seemingly incredulous reaction from Judge Blaine K. Bowman.
“The jurors could benefit from an explanation as to what being under oath means,” the first part of the note said. Underneath was a second request that read, “Additionally, how we should follow the law and not what we think the law means.”
After meeting with prosecution and defense for several minutes, Bowman called jurors back into the courtroom to address the note. Calmly as he could, he then proceeded to explain two of the American legal system’s most basic premises to a jury that will decide the fate of a 35-year-old former NFL tight end accused of raping three women and exposing himself to two others.
Bowman first told the jury that being under oath requires a witness “to tell the truth, the whole truth and nothing but the truth.”
“You heard over 30 witnesses stand before you and take that oath,” the judge said. “It’s an oath that is administered by the clerk and it subjects them to penalties of perjury if they don’t.”
Bowman then strongly admonished jurors that they are to follow the law as it is written and they are not to adlib, noting that was one of the questions on the jury selection questionnaire each of them filled out last month.
“Speaking of taking oaths, you all said under oath that you could follow the law as the court explains it to you even if you disagreed with the law,” Bowman explained. “You may not remember, but I went through an explanation that the law has to apply equally in every courtroom in the state of California.
“We cannot have a different law being applied in any courtroom anywhere in this state just because a juror or some jurors happen to disagree with that law.”
Attorneys who are following the case from afar were just as flabbergasted by the foreperson’s note as Bowman appeared to be.
“It was a very, very unusual jury note,” Los Angeles criminal defense attorney Arash Hashemi said.
Added Philip Holloway, a legal analyst and criminal attorney with the Georgia-based Holloway Law Group, “I’ve seen a lot of bizarre jury questions, but I don’t think I’ve ever seen anything quite like that. This ranks near the top.”
It’s difficult to say with certainty what deliberation room debate led the foreperson to pen that jury note, but Holloway believes the “under oath” question suggests jurors are “struggling to figure out how to deal with a witness that is not to be believed.”
The credibility of Winslow’s five accusers is at the core of this case. The defense attempted to establish reasonable doubt by seizing on holes or inconsistencies in the testimony of the five alleged victims during cross examination.
“It’s really hard to infer from one jury note what is happening in the jury but at a minimum we can deduce that they’re struggling with witness credibility,” Holloway said.
Since the jury had previously asked to have the testimony of Jane Doe 4 read back to them, it is possible the question could relate to that case. Doe testified under oath that Winslow raped her after a 2003 house party when she was 17 and he was 19, but defense attorney Marc Carlos noted in his cross examination that there were significant differences between her testimony and the story she first told police last year.
The explanation for the foreperson’s second question is more straightforward, according to attorneys following the case. They believe one or more jurors are struggling with understanding the instructions about the law given by the judge versus what they think the law should be.
Winslow is a former NFL tight end and the son of Kellen Winslow Sr., a Hall of Famer who remains a beloved figure in the San Diego area. The younger Winslow is facing life in prison if convicted of all 12 charges against him, including the 2003 rape and the rape of a 55-year-old hitchhiker and 59-year-old homeless woman last year.
Regardless of what charge the juror’s questions are about, Holloway and Hashemi agree that this is a good sign for the defense.
Said Holloway, “When there’s confusion in the jury room and they don’t get clarification, they’ll often throw their hands up and say, ‘Well, that’s reasonable doubt.’ ”
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