VISTA, Calif. – A judge declared a mistrial Tuesday on the eight remaining criminal charges against Kellen Winslow II, a day after a jury returned three guilty verdicts against the former NFL star that still could send him to prison for up to nine years.
San Diego County Superior Court Judge Blaine Bowman determined the jury was “hopelessly deadlocked” and could not reach a verdict on those remaining charges in a trial involving five alleged victims, including three who had accused Winslow of rape.
But it was close, and the stakes remain high for Winslow, who earned about $40 million in the NFL from 2004 to 2013. A new trial on those eight charges could come later this year. By varying vote margins, the jury favored conviction on each of them, including two charges of felony rape, but could not agree unanimously as required by California law.
A new trial date could be set as soon as Friday. No sentencing date has been set.
“Clearly this case is not over,” said Brian Watkins, one of Winslow’s attorney. “We will continue to litigate this case until our client is exonerated.”
The mistrial still could be considered a victory of sorts for Winslow, 35, who had faced the possibility of life in prison if convicted of all 12 charges here in a court about 35 miles north of downtown San Diego. Instead, he currently faces the possibility of nine years in prison for his three convictions and a retrial on the eight charges that hung the jury.
After deliberating for parts of five days, the jury found him guilty Monday of three of the 12 charges, most significantly the felony rape of a 58-year-old homeless woman last year on the side of a road. Winslow faces up to eight years in prison on that conviction and must register as a sex offender.
“He was shocked by that verdict,” said Emily Bahr, another attorney for Winslow.
His other two convictions are for misdemeanor indecent exposure and misdemeanor lewd conduct, each involving different women over 57 years old. Those charges carry a maximum term of six months apiece. Winslow’s attorneys told reporters they will appeal all three convictions.
The jury cleared him of one charge of misdemeanor lewd conduct involving a 77-year-old woman in a hot tub in February but could not reach a unanimous decision on the others, though it favored guilt by a 10-2 margin on one felony rape charge, one felony sodomy charge and two other misdemeanor charges.
San Diego County prosecutor Dan Owens said afterward that he was “personally satisfied” with the outcome. The decision to retry the eight deadlocked charges or drop them would come from his boss, San Diego County District Attorney Summer Stephan.
“Ten jurors did feel very strongly that he had committed forcible sexual offenses against more than one victim,” said Owens, who tried the Winslow case for the government. “That would lead to a lifetime prison term, and that will be another factor we would consider very strongly in determining how to proceed.”
The 12 combined charges were all part of the same trial involving five different alleged victims – three cases of rape and two cases involving lewd conduct and indecent exposure. All but one of the alleged incidents came since March 2018.
The other case came from 2003, when a woman, now 33, said Winslow raped her when she was 17 and he was 19. The jury of eight men and four women deadlocked on the two felony charges in her case but favored guilt by votes of 10-2 and 8-4.
In his defense, Winslow’s attorneys emphasized various inconsistencies and weaknesses with each of the alleged victim’s version of events. They suggested the sex was consensual or the women were mistaken or fabricating stories, possibly in pursuit of his wealth.
The strategy seemed to have worked to a degree. After a trial that spanned two weeks, the jury began deliberations last week and didn’t have an easy time with it.
Another attorney for Winslow, Marc Carlos, said the lack of a unanimous verdict on eight of the charges indicated the jury had issues with the credibility of the alleged victims.
“There’s a dispute as to the credibility of these witnesses, and that’s very important,” Carlos said.
Not only did the jury deadlock on eight charges, but on Friday it sent an unusual note to Judge Bowman.
“The jurors could benefit from an explanation as to what being under oath means,” said the note from Juror 6. “Additionally, how we should follow the law and not what we think the law should mean.”
Bowman said the jury declined to talk to the news media after he declared the mistrial.
Winslow, who has been in jail here since March, pleaded not guilty to all charges and decided not to testify in his defense. Asked about that decision to not testify, Watkins said “a lot of factors went into it.”
“His life is on line,” Watkins said. “It’s a very stressful situation.”
Here is a breakdown of all the counts Winslow faced and the jury’s vote tally on the eight deadlocked charges, each of which favored Winslow’s guilt.
Jane Doe No. 1: She is 55 and said she was hitchhiking on March 17, 2018, when she said Winslow picked her up, drove her behind a shopping center, forced her to perform oral sex and raped her in his vehicle. DNA taken from her pants matched Winslow’s. But she was caught in a lie during her testimony when she said she had been sober for 30 years. Winslow’s attorney, Marc Carlos, pointed out she had been arrested multiple times in recent years for public intoxication. He also emphasized that she didn’t scream or try to run for freedom when she had a clear chance during her alleged kidnapping.
This case involves three felony counts: of kidnapping, forced oral copulation and rape.
Count 1 – Kidnapping (7-5)
Count 2 – Forcible rape (7-5)
Count 3 – Forced oral copulation (7-5)
Jane Doe No. 2: She is a 59-year-old homeless woman who said Winslow picked her up to go out for coffee, but instead drove her to a dark place. Winslow allegedly raped her on the roadside and choked her in May 2018. A mixture of DNA found on her neck possibly included Winslow’s, according to testimony. Winslow’s defense team had pointed out in the trial that the man she identified as Winslow previously offered her $50 for sex, which she said she declined.
This case involves two felony counts: rape and sodomy.
Count 4 – Forcible rape (Convicted. Maximum sentence: eight years)
Count 5 – Forcible sodomy (10-2)
Jane Doe No. 3: She is a 59-year-old neighbor of Winslow’s who was gardening in her front yard when she said a man came up from behind, pulled his pants down and exposed himself to her in May 2018. She testified that she did not look at the man’s face and therefore did not identify Winslow in a lineup of six photos or in court. However, she identified the perpetrator as a black man with tattoos on his arms and a blue backpack, which matched Winslow’s description. GPS-based location data also appeared to place him close to her home at the time of the alleged incident, according to his verified account with Strava, a digital fitness application.
This case involves a single misdemeanor count of indecent exposure.
Count 6 – Indecent exposure, a misdemeanor (Convicted. Maximum sentence: six months)
Jane Doe No. 4: This woman, now 33, said Winslow raped her at a party in June 2003 when she was 17 and Winslow was 19. She gave emotional testimony at trial about being unconscious and then regaining consciousness during her alleged rape, when she said she told Winslow to “stop, stop, stop.” The defense team pounced on alleged inconsistencies in her account, such as whether the alleged rape happened in a car or a house. Carlos also stressed she admitted to prior consensual sex with Winslow and suggested that’s all that happened. She said she didn’t report her rape until last year because she didn’t think anybody would believe her.
This case involves two felony counts: of rape and rape while unconscious.
Count 7 – Forcible rape (10-2)
Count 8 – Rape of an unconscious person (8-4)
Jane Doe No. 5: This 78-year-old woman said she had two disturbing encounters with Winslow at a Crunch Fitness in Carlsbad this past February. The incident led to Winslow’s bail being revoked. In one incident, she said Winslow put his clothed erect penis in her face. In the other incident, she said he touched her arm and masturbated next to her in a hot tub later that same month. The defense team pointed out there was another man in the tub and that the woman didn’t see exposed skin or what he was doing exactly under the water’s opaque surface.
This case involves four misdemeanor counts: two counts of lewd conduct, elder abuse and elder battery.
Count 9 – Lewd act in public (Convicted. Maximum sentence: six months)
Count 10 – Lewd act in public (Acquitted)
Count 11 – Elder abuse (10-2)
Count 12 – Elder battery (10-2)