Mistrial declared on remaining charges in Kellen Winslow II case; jury ‘hopelessly deadlocked’

VISTA, Calif. – A judge declared a mistrial Tuesday on the remaining charges in Kellen Winslow II's rape trial, a day after a jury returned three convictions that could send the former NFL star to prison for up to nine years. 

San Diego County Superior Court Judge Blaine Bowman said the jurors were “hopelessly deadlocked” as he announced the mistrial. By varying counts, the jury favored conviction on the eight remaining charges but could not agree unanimously as required by California law. 

A retrial on those eight charges is expected later this year. 

The mistrial came a day after the jury announced it had found Winslow guilty of three of 12 charges, including felony rape of a homeless woman last year on the side of a road north of San Diego. The jury cleared him of one charge of misdemeanor lewd conduct but told the judge it remained deadlocked on the other eight counts until resuming deliberations Tuesday.

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.

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.

Kellen Winslow II (Photo: John Gibbins, AP)

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.

Not only did it deadlock on those counts, 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 media. 

Here is a breakdown of all the counts Winslow faced and the vote tally – each in favor of conviction – on each of the eight charges that resulted in a hung jury:

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 for rape OR the lesser charge of simple kidnapping (7-5)

Count 2 – Forcible rape (7-5)

Count 3 – Forced oral copulation by force (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)

Follow Brent Schrotenboer on Twitter @Schrotenboer and A.J. Perez @byajperez

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