Former NFL star Kellen Winslow II faces critical choice as his rape trial continues

VISTA, Calif. – An attorney for Kellen Winslow II was standing in a hallway outside of the courtroom late last week when a reporter casually asked him a question that’s been hovering over his client’s rape trial here for the past two weeks.

Will Winslow testify in his own defense?

After all, the former NFL star is facing the possibility of spending the rest of his life in prison. His defense team also has suggested this case is largely a dispute of “he said, she said," involving competing claims of consensual sex vs. rape.

So then why wouldn’t the jury get to hear what "he" has to say after three different women each said "she" was raped by him?

Marc Carlos, Winslow’s attorney, told USA TODAY Sports it was too early to decide whether Winslow will take the witness stand.

“We’ll put our heads together and decide” probably at the last minute, Carlos said.

Kellen Winslow is flanked by his attorneys, Brian Watkins (right) and Marc Carlos. (Photo: John Gibbins, AP)

Either way, it’s a decision that could save him or ruin him after earning about $40 million in his NFL career from 2004 to 2013.

And the answer will come soon. Judge Blaine Bowman told jury members Thursday that he expected they would be begin deliberations by Friday, June 7, after San Diego County prosecutor Dan Owens finished presenting his witnesses this past Thursday. Winslow’s attorneys will continue to present their own witnesses on Monday.

“We have a full week to put on our case,” said Brian Watkins, another attorney for Winslow.

Winslow, married with children, has pleaded not guilty and has a constitutional right not to testify against himself. If he doesn’t testify, it still would be conspicuous to the jury, said M. Dod Ghassemkhani, a San Diego criminal defense attorney who is not involved in the trial but has been following it.

Ghassemkhani said it would be unusual in a case where sexual consent is in dispute.

“Obviously, when the defendant doesn’t testify in a consensual sex defense, that’s something the jury is going to consider” even if they’re not supposed to consider it because of his right not to testify, Ghassemkhani said. In effect, the jury would hear only one side of the story in a "he said, she said" rape trial. "That’s pretty damning for the defense," he said.

On the other hand, if Winslow does testify, he would undergo a taxing cross-examination by Owens over the facts in the case, putting him at risk of making a disastrous mistake. Winslow also might say something on the witness stand that could open the door for the jury to hear about other incidents last year involving Winslow that so far have not been allowed at trial – including allegations of him repeatedly entering the women’s locker rooms of two local gyms, as well as former charges of him illegally entering the homes of two women, ages 86 and 71.

That could doom him with a jury tasked with deciding whether to free him from jail, where he’s been since March.

"This case is in a position right now where if Winslow wants his attorneys to be able to argue consent to the jury, he has to take the witness stand and testify that it was consensual," said criminal defense attorney Lisa Houle, a former Los Angeles County prosecutor who also is following this case but not involved in it.

Watkins said in his opening statement to the jury May 20 that Winslow cheated on his wife “numerous times” and said he had “no-strings-attached” consensual sex. That’s wrong and immoral, he said, “but it’s not illegal.” Winslow, 35, also gave a statement to a detective last year that he had consensual sex with two of the alleged victims from 2018 — Jane Doe 1, a then-54-year-old hitchhiker, and Jane Doe 2, a 59-year-old homeless woman. But Owens did not have that statement presented to the jury for a reason, Ghassemkhani said.

If that statement had been shared with the jury as part of the government's case, “that basically would allow Winslow to testify without testifying,” Ghassemkhani said. ”Without that, Winslow has to get up there and say it’s consensual.”

Winslow is facing 12 criminal counts in a combined trial involving five alleged victims – three felony rape cases and two misdemeanor cases of indecent exposure and lewd conduct. All five women testified at trial.

Of the three alleged rape victims, two gave fairly consistent testimony and were visibly upset in their recollection of the incidents. The other is the hitchhiker identified in court as Jane Doe 1. Hers is the only case in which DNA obtained from the women’s crotch area conclusively matched Winslow’s. But she gave nonchalant, inconsistent testimony and was caught lying on the stand about her history with alcohol.

She testified she had been sober for 30 years when in fact Carlos pointed out she had been arrested several times for public intoxication. After her testimony, her own daughter started a GoFundMe page to raise money for her mother entitled “Mentally ill rape victim recovery fund.”

Winslow’s attorneys plan to bring the daughter back to the witness stand to ask her about that.

“I think they’ve poked enough holes in their stories that they can get up there and say, with each and every Jane Doe, `You must believe them beyond a reasonable doubt,” Ghassemkhani said. “I think that’s a better argument than putting Winslow on the stand.”

Watkins’ opening statement still put the consensual sex defense in motion. That’s when he alluded to Winslow’s statement to police last year about consensual sex, saying Winslow “admitted it a year ago.” Regarding Jane Doe 4, the third alleged rape victim, Watkins told the jury then that “she’ll admit to you she had consensual sex with Kellen.”

She did, but was referring to a previous occasion about two weeks before the night she said she was raped by him in 2003, when she was 17 and Winslow was 19.

“I would be surprised if Winslow does not take the stand to testify in his own defense, particularly after what was mentioned by his defense team during opening statements about `consent,’ `infidelity,’ and `no-strings-attached sex,’” said David P. Shapiro, a San Diego criminal defense attorney who is not involved in the case but has been monitoring it. “Alluding to consent during closing argument as it relates to Jane Does 1, 2 and 4 would be difficult to do without Winslow’s testimony claiming such.”

Winslow quietly appears at trial every day seated next to his attorneys, but he only speaks to them there in whispers.

“I think this is an extremely tough call,” Ghassemkhani said. “With Winslow, who knows what he’s going to say?”

Follow sports reporter Schrotenboer @Schrotenboer. E-mail: [email protected]

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