USA TODAY Sports’ Brent Schrotenboer discusses the rape charges against former NFL star Kellen Winslow Jr.
VISTA, Calif. — Former NFL star Kellen Winslow II is headed to a second rape trial here this fall after his first trial ended in a mistrial this week on eight of the 12 charges against him.
The jury in the first trial did convict Winslow of three charges, including felony rape of a 58-year-old homeless woman on the side of the road in May 2018. Those convictions still stand and could send him to prison for up to nine years.
But after the jury deadlocked on six felony and two misdemeanor charges, San Diego County District Attorney Summer Stephan faced a choice – either try those eight charges again with a different jury or drop some or all of them. On Friday, her office announced that all eight remaining charges would be pursued in a second trial, including felony charges of kidnapping, two counts of forcible rape, sodomy by use of force, rape of an unconscious person and forcible oral copulation.
Superior Court Judge Blaine Bowman on Friday scheduled jury selection for the new trial to begin Sept. 30. Opening statements are scheduled for Oct. 7.
“We found the fact that Mr. Kellen Winslow has been convicted of forcible rape as well misdemeanor offenses of a sexual nature involving two additional victims, that this boded rather well for a retrial,” said Deputy District Attorney Dan Owens, who prosecuted Winslow in the first trial.
Winslow, 35, will remain in jail here in the meantime. His attorney, Brian Watkins, asked Judge Bowman Friday to have him released on $1 million bail and confined to his house with GPS monitoring. But Bowman denied that request in court.
“He’s certainly a flight risk now because he stands convicted of a very serious charge and is looking at a mandatory prison sentence,” Bowman said. “… The Court does find he’s a substantial danger to the community based in everything the Court heard at trial and the fact he does stand convicted of forcible rape.”
Additional felony convictions could keep Winslow, who is married with children, behind bars for the rest of his life. Despite failing to reach a verdict on those eight charges, the first jury favored guilty verdicts against Winslow on all of them, sometimes by margins of 10-2. It just couldn’t reach a unanimous decision on them for conviction or acquittal, as required by California law.
“When we consider also that there were 10 members of the community who came together and found that he did in fact commit the crimes beyond a reasonable doubt in the other forcible sex offenses, that was a significant factor in our decision to seek a retrial,” Owens said Friday.
The retrial decision still comes with risk. It puts the alleged victims in the uncomfortable position of having to testify again in open court. Failing to win more convictions in a second trial could be viewed as a waste of time and money.
Winslow’s attorneys also have decried the pursuit of a combined trial on these charges as unfair to the due-process rights of Winslow, who has been jailed here since March after once living large with around $40 million in earnings from his NFL career from 2004 to 2013.
He has pleaded not guilty. His other attorney, Marc Carlos, said Friday that the defense team will appeal the convictions and ask for a retrial based on errors in the first trial, especially related to evidence that was introduced from Winslow’s account with Strava, a digital fitness application.
The first trial had seven days of testimony and combined the cases of five alleged victims, three of whom accused Winslow of rape. The second trial involves four of those alleged victims, with the fifth possibly testifying as well:
►The government will retry the case of 55-year-old Jane Doe No. 1, who was hitchhiking in March 2018 when she said Winslow picked her up, took her to a parking lot behind a shopping center and raped her after forcing her into oral sex. The first jury found her case to be the weakest among the five alleged victims but still favored conviction against Winslow by a margin of 7-5 on three felony counts: kidnapping, forcible rape and forced oral copulation.
DNA found in the crotch of her pants matched Winslow’s. But her testimony allowed Winslow’s attorneys to raise reasonable doubt about whether Winslow assaulted her or had consensual sex. Winslow’s attorneys emphasized that she was caught lying on the witness stand about her sobriety in recent years and called her own daughter to the stand as a defense witness. During the trial, the daughter had started a GoFundMe page to raise $50,000 for her mother as a “mentally ill rape victim.”
►Another alleged victim whose case will be retried is Jane Doe No. 4, who testified in the first trial that she became unconscious at a party in 2003 and then regained consciousness while Winslow was raping her. The first jury favored convicting him of forcible rape in this case by a 10-2 margin and favored guilt by an 8-4 margin on a separate charge of rape of an unconscious person.
This woman gave emotional testimony about the alleged incident and lashed out with a profanity at Carlos, when he suggested the sex began consensually. She said she didn’t report the incident until last year because she didn’t think anybody would believe her word against that of a famous football player whose father of the same name is a Pro Football Hall of Famer. His attorneys also emphasized that an officer initially wrote down a different account of what she alleged when she reported it last year by phone – an account that said the incident took place in a car.
►The district attorney also decided to retry a felony sodomy charge against Jane Doe No. 2. The first jury convicted Winslow of forcible rape in her case but deadlocked by a 10-2 count in favor of conviction on the sodomy charge. She is a homeless woman, now 59, who testified Winslow picked her up to go out for coffee but instead drove her to a dark roadside spot, where he raped and choked her on the passenger side of his vehicle.
►The other two alleged victims from the first trial involved misdemeanor charges. The first jury convicted him of misdemeanor indecent exposure for pulling his pants down and exposing himself in May 2018 to Jane Doe No. 3, a 59-year-old Vietnamese woman who lived down the same street in north San Diego County. Owens said she might testify as a witness in the second trial as part of the government’s attempt to show that Winslow had a propensity to commit sexual offenses.
The jury also convicted Winslow of lewd conduct involving Jane Doe No. 5, a 78-year-old woman who said Winslow positioned his clothed erect penis near her face at a local gym in February. But the jury acquitted Winslow of another lewd conduct charge of masturbating in a hot tub next to her that same month.
Two other charges involving this woman hung the jury by a count of 10-2 in favor of conviction on each – elder abuse and elder battery. The latter charge stemmed from an allegation that Winslow grabbed the same woman’s arm in the same hot tub.
The district attorney decided to retry those two charges as well.
Contributing: A.J. Perez
Follow Brent Schrotenboer on Twitter @Schrotenboer. E-mail: firstname.lastname@example.org