Kellen Winslow II trial: Defense claims sex was 'immoral' but 'not against the law'

VISTA, Calif. — For more than an hour, Kellen Winslow II fidgeted in his seat as district attorney Dan Owens painstakingly laid out the graphic, gruesome rape allegations against him that could send him to prison for the rest of his life.

At last, it was time for Winslow’s high-priced defense attorneys to unveil their strategy to combat the mountain of evidence against him.

In a brief opening statement that lasted barely seven minutes, attorney Brian Watkins portrayed Winslow as the victim of money-hungry accusers, media hysteria and mistaken identity. Watkins told a Southern California jury on Monday that Winslow “has been in the spotlight since he was young” and “when you’re in the spotlight, people want things from you.”

The only transgression Watkins conceded Winslow committed was infidelity to his wife of nearly 13 years. Watkins told the jury that the former all-pro NFL tight end was unfaithful “numerous times,” but that he has never raped anyone.

“It was sex,” Watkins said. “No-strings-attached sex. It’s wrong. It’s immoral. But it’s not against the law.”

The approach Watkins took was noteworthy because it ensures that Winslow’s attorneys will not be putting the sport of football on trial.

Watkins could have argued that his client’s alleged sexual misconduct was a result of mental illness caused by brain trauma from playing football and could have put a spotlight on chronic traumatic encephalopathy (CTE). This would have been the ultimate Hail Mary given that there's currently no test for CTE on a living person, nor is there more than anecdotal evidence that CTE can lead to violent behavior.

Brian Watkins, right, an attorney for former NFL football player Kellen Winslow II, puts his hands on Winslow as he gives his opening statement to the jury during Winslow's rape trial. (AP)
Brian Watkins, right, an attorney for former NFL football player Kellen Winslow II, puts his hands on Winslow as he gives his opening statement to the jury during Winslow's rape trial. (AP)

Now it will be almost impossible for Watkins to pivot to a defense built around conceding Winslow’s factual guilt yet arguing that he’s not legally responsible for his crimes due to diminished mental capacity.

Winslow, 35, has pleaded not guilty to a total of 12 charges, including six counts of rape and allegations of kidnapping, lewd conduct and indecent exposure. Five women have levied accusations against Winslow, four of which allegedly occurred just miles from his Encinitas home between March 2018 and February 2019.

The Winslow case has drawn significant media attention because of the defendant’s stature as a former NFL first-round draft pick and the son of a Hall of Famer. CourtTV is scheduled to air Winslow’s entire trial live and about two dozen reporters showed up to watch Monday’s opening statements in person.

What most of Monday consisted of was Owens giving jurors an overview of the prosecution’s case against Winslow. He outlined each incident, urging the jury to judge Winslow “by his deeds, not who he is or who his father is.”

Jane Doe No. 1 is a 54-year-old hitchhiker who 14 months ago accused Winslow of picking her up in Encinitas, raping her in a shopping center parking lot and threatening to kill her if she told anyone. Owens said the underwear and pants she turned over to the police contained DNA that matched Winslow’s.

Jane Doe No. 2 is a 59-year-old homeless woman Winslow allegedly picked up two months later outside an Encinitas train station under the guise of buying her a cup of coffee. While the woman identified Winslow to police as “Kevin” instead of “Kellen,” her description of her rapist and his black SUV was enough to lead to the ex-NFL star’s arrest last June.

Jane Doe No. 3 is a neighbor of Winslow’s who accused him of exposing his erect penis to her last May while she was gardening in her front yard. Owens said that police obtained a blue backpack at Winslow’s house matching her description of what he was wearing, as well as GPS data corroborating that he was bicycling at the location where the alleged incident occurred.

When Watkins briefly addressed those encounters, he described Jane Doe No. 3’s allegations as a case of mistaken identity. Watkins said Winslow’s encounters with Jane Does 1 and 2 were consensual sex with women who knew he was a football star.

“Those accusers aren’t giving you the whole truth,” he said.

The third woman to accuse Winslow of rape allegedly found the courage to go to the police last summer after reading about the other allegations against him. Jane Doe No. 4 accused Winslow of raping her at a 2003 house party when he was 19 years old and she was 17.

The last of the incidents involving Winslow allegedly occurred just a few months ago while he was out on $2 million bail. Police arrested Winslow for lewd conduct in front of a 77-year-old woman at a Carlsbad gym.

On one occasion, Owens said Winslow stroked himself while sitting a few feet away from the woman and looking directly at her. On another, Owens said Winslow spotted her alone in the jacuzzi, sat alongside her and masturbated in front of her.

The accusations against Winslow are a stunning set of circumstances for a brash yet talented football player who once nicknamed himself “The Chosen One.” The Cleveland Browns selected Winslow out of the University of Miami with the sixth overall pick in the 2004 NFL draft and, in 2009, the Tampa Bay Buccaneers made him the highest paid tight end in NFL history.

Both the prosecution and defense referenced Winslow’s uncommon background multiple times in their opening statements.

Watkins wants jurors to believe Winslow’s wealth and fame was the reason his accusers have targeted him. Owens wants jurors to ignore the ex-NFL star’s stature and view him by his actions.

Said Owens, “Mr. Winslow has been given much but for him it was not enough.”

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