Kellen Winslow II trial: Prosecution witness caught in web of lies and contradictions
VISTA, Calif. – Jane Doe No. 1 is 55 years old, a petite, dark-haired woman who on the afternoon of St. Patrick’s Day 2018 said she was walking to some nearby stores. Uninterested in climbing one of the steep, North County hills here outside San Diego, she threw out a thumb to hitchhike a ride.
That’s when a black Hummer 2 pulled up and a man, according to Doe, who identified himself as “Dominique” (but prosecutors allege was really former NFL star Kellen Winslow II) offered to drive her about a mile and a half down Sante Fe Drive to Vulcan Avenue.
He seemed friendly. She climbed in. Soon though, Doe said, Winslow had changed his mood.
“He said, ‘I’m not going to take you to Vulcan, I’m going to take you to the store and [expletive] you.’ ”
Doe No. 1 took the stand Tuesday as the first key witness in the high-profile trial of Winslow, a high-profile football player from a high-profile football family (his namesake father is in the Pro Football Hall of Fame). Winslow II is fighting 12 charges, including the rape of three different women. If convicted, he is facing life in prison.
Doe is the first to testify, but her story got shaky almost immediately. There were gaping holes and obvious questions during a friendly direct, and then things began to blow up completely under a calm, but purposeful, cross examination by defense attorney Marc Carlos.
She presented a series of contradictions, misstatements and what can be characterized only as outright lies. She often answered the same question in opposite ways while on the stand. She was not consistent with her testimony from pretrial hearings.
Maybe most troubling for the government, she unfurled a story where she never seized ample opportunities to either get away, alert nearby people or call 911 on her cell phone that was in her possession throughout the fairly lengthy encounter.
At one point she claimed to the jury that she hadn’t had a drink in 30 years. The defense soon pointed to a lengthy list of arrests for public intoxication (11 deep, although the judge limited to just the most recent five). One she said was because she drank too much cough syrup. Three of the other five she was confronted with she couldn’t even remember.
“You told the jury you haven’t drank in 30 years,” Carlos said. “… That is a lie.”
“I haven’t drank today,” she countered.
The prosecution has charged Winslow with raping not just Doe No. 1, but also a 59-year-old homeless woman, as well as a then-17-year-old at a 2003 party. Winslow was 19 at the time. There are also indecent acts where he allegedly exposed himself to an elderly female neighbor who was in her yard gardening and a 77-year-old in a health club hot tub while Winslow was out on bail and awaiting trial.
Prosecutors, however, usually present their strongest evidence and witnesses to the jury first. If Doe No. 1 is the best and the most reliable they have, then the government may have an uphill battle despite the totality of the charges.
Doe testified that after picking her up, Winslow explained he was about to rape her, refused to let her out of the Hummer and denied her pleas to be spared.
“I just begged him,” she testified. “Just pull over right here. You don’t have to drive me anymore if that is what upset you.”
Winslow was determined though, she said. The 6-foot-4, 240-pound former tight end is far bigger than the slight, 5-foot woman. She also said she believed he had a gun on him because he intimated there was a weapon in the left pocket of his shorts.
“He said, ‘If you say anything, I will kill you,’ ” Doe No. 1 said. “I just froze. He said, ‘I’m going to do this in the grocery store parking lot. If you don’t do this, I’m going to kill you.’ … He said he’s going to get this done … he’s going to [expletive] me no matter what.”
Doe testified that Winslow drove the car behind a Vons supermarket that anchors a shopping center in Encinitas. He parked next to two empty cars. He then ordered her out of the car. Doe said she did as she was told.
Although she acknowledged this was a busy shopping center on a Saturday afternoon and they parked just 50 feet from the open doors of a sushi restaurant, a dry cleaner and a 24-Hour Fitness, she didn’t run or scream for help, or call 9-1-1 on her cell phone. She said she was overcome with fear.
“I was scared,” she said. “I was really scared to death. I really don’t know why I didn’t defend myself.”
Instead, she followed Winslow as he walked to a 5-foot-tall chain link fence with an overgrown field next to it that sat next to a busy highway on-ramp. Winslow climbed over the fence first, she said, and began to get naked. At this point, despite a fence between them, Doe still didn’t turn and run. She instead testified that she threw her backpack over the fence and then climbed over herself and began to get undressed.
“You jump over the fence to the guy who threatened to rape you and kill you?” Carlos asked in a dumbfounded tone.
“Yes,” she said.
Once both of them were over the fence, she testified Winslow changed his mind and stated that he wanted to go back to the car. He then climbed back over the fence.
Again, Doe was free from her attacker and capable of a short run where she could be saved.
“Once again, another situation, you have your clothes, you have your belongings and the alleged rapist, terrorist is on the other side of a 5-foot fence,” Carlos said. “You could have run to the freeway on-ramp.”
“I could have,” she said.
“But you didn’t do any of that,” he said.
“No,” she said.
Instead she climbed back over the fence and walked with Winslow to the car. She got in the passenger seat.
“I begged him again, ‘I won’t tell anybody,’” she said. “He said, ‘No, I’m going to [expletive] [expletive] you.’ … He pulled out his penis.”
She testified that she briefly gave him oral sex. She said he never physically pulled her toward him or held her in any way. After a couple minutes she stopped. She then took her pants off and said he climbed over and inserted himself into her, an act that caused great pain and eventually vast amounts of bleeding.
“I kept shouting, ‘Ow! Ow! Ow! Ow!’ ”
When Winslow was done, he ordered her out of the car. At this point, she became vocal and combative. She said she shouted at him that he was a “pervert” and she promised that she was going to tell the police. He drove away. She didn’t report the attack to authorities for four days.
Winslow is not denying a sexual encounter took place. Since his DNA was found on Jane Doe No. 1, that would’ve been impossible. The defense has suggested that he was an unfaithful husband, but that the sex was consensual – Winslow engaging in the unusual behavior of driving around looking for transient and homeless women – but certainly not forcible rape.
If nothing else, the prosecution is going to have to explain exactly why a violent rapist would choose a crowded shopping center in broad daylight, with security cameras everywhere and witnesses liable to walk or drive up at any moment, to commit such an act.
Mostly though, they need to overcome Jane Doe No. 1 herself. She is unemployed and spends a considerable amount of time walking around town. She is an admitted alcoholic with obvious setbacks in her sobriety.
Her testimony went in all directions, with unnecessary contradictions. She was often confused and combative. Her lies about never drinking were striking to the courtroom. She repeatedly said she was too scared of Winslow to shout or call out to anyone, yet she admitted trying to wave her arms to alert one shopper they passed by as Winslow, seated next to her, drove the Hummer through the shopping center parking lot.
“You weren’t afraid of the person in the driver’s seat doing anything if you waved your hands back and forth?” Carlos asked.
She testified Tuesday she wasn’t menstruating on the day of the alleged attack. When reminded by the defense she had previously testified she was menstruating, she changed her testimony to say she was.
On and on it went. It doesn’t mean her story isn’t true or that she wasn’t raped, but in a case that involves reasonable doubt, she offered up plenty of opportunity for the jury to question her truthfulness.
“The credibility of the victim is of great impact in the case,” Judge Blaine Bowman said during a sidebar where he allowed the defense to further question her drinking, an opportunity that became available after prosecutors failed to quickly object to defense questioning.
While it was about as strong of a possible day for the defense as can be expected in a crime of this magnitude, it does not mean Winslow should rest easy. The fact the government was able to put all of the accusers and crimes into one case makes proving his innocence more difficult.
“The cases are structured that way for a reason,” said Craig Mordock of the New Orleans-based Mordock-Barber Law Firm that specializes in sexual assault defense. “The jurors will understand a person can get themselves into one questionable situation.
“The prosecution has to prove the case beyond a reasonable doubt and in any kind of he-said-she-said type case, there is always going to be some reasonable doubt. How do you know?” Mordock continued. “But then you have five of them. If they think he did one they’ll convict on all. And you only need one.”
Jane Doe No. 1 told her story on Tuesday and the defense countered. Jane Doe Nos. 2 and 3 are expected to take the stand on Wednesday.
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