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  • Could Aaron Hernandez's postmortem CTE diagnosis influence Kellen Winslow Jr.'s attorneys into building a defense around football-related brain injury?
By Michael McCann
June 16, 2018

Former NFL tight end Kellen Winslow Jr. faces nine charges and disturbing accusations that he kidnapped, raped and terrorized multiple women in Encinitas, California over the last three months. If convicted on the charges, the 34-year-old Winslow could be sentenced to life in prison.

On Friday, Winslow appeared in a San Diego County Superior Court in Vista and pleaded not guilty to all of the charges. Per an order by Superior Court Judge Robert Dahlquist, Winslow has been jailed without bail. He will next appear in court on June 25 for a preliminary hearing. Criminal defense attorney Brian Watkins will represent Winslow while the office of San Diego County District Attorney Summer Stephan will prosecute.

The details of Winslow’s alleged crimes are truly chilling. The criminal complaint, as outlined by Teri Figueroa of The San Diego Union-Tribune, depicts Winslow as a serial rapist who targeted middle-aged and elderly women.

Winslow allegedly raped two women, aged 54 and 59, in similar ways. Both were passengers in Winslow’s car and then driven to remote locations where the rapes occurred. In addition to raping the 54-year-old woman, Winslow is accused of forcing oral copulation and threating to kill her if she screamed. The incident involving the 59-year-old woman also allegedly included forced sodomy. A news release by the San Diego County Sheriff’s Department indicates that six of the nine charges stem from Winslow’s alleged offenses involving these two women.

In terms of the remaining three charges, Winslow is charged with two counts of burglary with intent to commit sex offenses. This type of charge refers to unlawfully entering an inhabited home or building with the intent to commit a sex crime. The alleged victims of these crimes are women aged 71 and 86.

In regard to the 86-year-old woman, the incident occurred earlier this month and, sequentially, was the last crime linked to Winslow. On June 7, Winslow allegedly broke into a mobile home at the Park Encinitas Mobile Home Park—a mobile home community for senior citizens—where the woman was sleeping. A neighbor saw a shirtless man, whom police say is Winslow, enter the home with a shirt on and minutes later leave. As detailed in a police report, the neighbor then confronted the man, who then abruptly left in a black SUV. The neighbor then called the police. Winslow was arrested nearby on suspicion of burglary. He posted bail but was monitored by police, who began to link Winslow to a batch of recent sex crimes in Encinitas.

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The fifth alleged victim of Winslow is a 55-year-old woman, who Winslow allegedly approached while she attended to a garden. The woman says Winslow tried to talk to her as she pruned flowers and then attempted to stand right behind her while exposing his penis. She then ran into her home and called the police. For this incident, Winslow has been charged with indecent exposure, a misdemeanor (the other eight charges are all felonies).

Anticipating Winslow’s defenses—and how prosecutors will try to overcome them

In fairness to Winslow, the fact that he has been charged with grotesque crimes does not prove that he is guilty of those crimes. It’s worth noting the narrowly tailored significance of criminal charges. Winslow being charged means that the government has accused him of certain criminal acts and has identified probable cause for these accusations. Probable cause is hardly a conviction. It only requires enough evidence to convince a reasonable person to conclude that a crime has been committed and that the defendant is guilty.

A conviction, in contrast, will necessitate that jurors are convinced beyond a reasonable doubt of Winslow’s guilt. There is thus a good deal of daylight between a charge and a conviction. However, the felony trial conviction rate in California is approximately 80%—meaning most felony-charged defendants who go to trial in California are convicted.

It is also worth noting that Winslow has not yet waged a defense. With that in mind, the most challenging time for a criminal defense attorney is often in the immediate aftermath of his or her client being charged. At this stage, prosecutors haven’t yet shared the incriminating evidence—or the exonerating evidence—with the defense and they are thus far more familiar with the strengths and weaknesses of the case. Plus, in a high-profile case like one involving a former NFL player, the challenge for the defense is even higher: Media will report on the accusations based almost exclusively on what has been shared by the prosecution. This dynamic, in turn, can lead to an unintentional reporting bias against the defendant. Such negative reporting can influence, and potentially prejudice and inflame, local residents who could eventually serve as jurors.

In the coming weeks, attorneys for Winslow will become intricately aware of all aspects of the prosecution’s theory. They will attempt to obtain evidence and witness testimony that discredits any link between Winslow and the commission of these crimes. Winslow’s attorneys might also try to portray each crime as very different and thus as most likely committed by different people.

The alibi defense and its weaknesses

The ideal defense would be one that proves Winslow could not have committed the crimes. To that end, if Winslow has a believable alibi for each of the five incidents, Winslow could contend that he was not at the crime scenes when the crimes took place. If successful, an alibi defense would make it virtually impossible for Winslow to be found guilty.

Whether Winslow’s alibis would be plausible and capable of withstanding the scrutiny of modern law enforcement technology is a separate matter.

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Police can often link a person’s location through cell phone triangulation, which refers to positioning a phone’s location to a nearby cell tower at a particular place and time. Assuming Winslow carried a phone with him, his location at the time of the crimes could be ascertained. If cell phone triangulation shows that Winslow, or at least his phone, was positioned near the victims at the time of the crimes, jurors would be much more likely to believe that he is guilty.

The prevalence of security and surveillance cameras could also prove problematic for Winslow and his legal team. To put it bluntly, there are cameras nearly everywhere—on roads, on tollbooths, on homes and other dwellings, and even on people through their iPhones and smartphones. If any videos or photographs show Winslow with the victims or place him near the scene of the crimes around the times they occurred, his alibis would be greatly undermined.

Winslow’s text messages, emails and web browser history, as well as those of the alleged victims, might also prove critical. Those electronic records, which are recoverable through search warrants, could share contemporaneous insights that describe what occurred, who was involved and whether the five incidents are similar in design or structurally different. These records might also reveal the degree to which Winslow might have planned his alleged crimes. Likewise, witness statements will prove crucial: Did the alleged victims offer reflections and impressions right after the incidents, and what, if anything, did they tell others?

Deoxyribonucleic acid (DNA) evidence could also prove critical. Prosecutors will try to link Winslow’s DNA to the victims’ bodies and items belonging to them, including clothing. Materials collected through the victims’ rape kits would also be assessed for links to Winslow. Likewise, prosecutors will attempt to show the presence of alleged victims’ DNA on Winslow or on items belonging to him, such as his clothing or his car.

The mistaken identity defense

As another line of defense, Winslow’s attorneys might argue that their client is the victim of mistaken identity and that the real rapist(s) remains on the loose. They could further posit that Winslow, who is African American, might be the victim of racial profiling and that law enforcement took a general description of a tall black man of around Winslow’s age and uncritically zeroed in on Winslow.

Such a defense could prove unconvincing. For one, as explained above, cell phone triangulation and surveillance camera evidence might establish Winslow’s location at the time of the crimes. For another, Winslow is a uniquely large person: He stands 6’4” and weighs about 250 pounds. He is also athletically built, fit and muscular. He doesn’t look like an ordinary guy—he looks like someone who could be a professional athlete. For that reason, he probably stands out in a crowd of regular people. He might also be facially recognizable from playing 10 years in the NFL. Winslow thus seems unlikely to be confused for someone else, which presents yet another hurdle for his defense.

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The wild-card defense: football-induced neurological injury is to blame

Winslow and his attorneys might prove unable to defeat the charges through conventional defenses. This would be especially true if technological and DNA evidence link Winslow to the crimes. If his attorneys reach such a conclusion, they might consider a risky play: Arguing that Winslow is not responsible, or is at least less responsible, for the crimes because he suffers from neurological impairment or psychosis caused by playing football for most of his life.

Winslow has been around football since he was a young child. His father, Kellen Winslow, played nine seasons in the NFL, all for the San Diego Chargers (1979 to 1987). Winslow Sr. was inducted to the Pro Football Hall of Fame in 1995 when his son was 12 years old. Shortly thereafter Winslow became a high school football star in San Diego and later attended the University of Miami, where he was an All-American tight end. The Cleveland Browns drafted Winslow in the first round of the 2004 NFL Draft (sixth pick). Winslow then went on to a 10-year NFL career, most of which was spent with the Browns and Tampa Bay Buccaneers. He also played for the New England Patriots and the New York Jets.

Winslow missed significant time due to myriad injuries—including a torn anterior cruciate ligament in his right knee following a motorcycle accident in 2005—and also was suspended for four games in 2013 for violating the league’s policy on performance-enhancing substances. All told, Winslow played in 105 out of a possible 160 regular-season games over his 10-year career. Although teams’ records indicate that Winslow did not miss NFL games due to concussions, he could have nonetheless suffered subconcussive hits and not realized their occurrence.

It is unknown if Winslow suffered measurable harm to his brain while playing football. The disease most often linked to brain damage and football players is chronic traumatic encephalopathy (CTE). CTE is a degenerative neurological condition caused by repeated head trauma. While CTE is linked to concussions, it is also linked to asymptomatic subconcussive hits to the head. This secondary link is potentially relevant to Winslow.

CTE is only diagnosable with certainty in post-mortem examinations. This means that Winslow could not be tested for CTE in a way the medical community would consider valid. However, a physician could diagnose Winslow with symptoms associated with CTE. Those symptoms include belligerence, anxiety and paranoia—all of which could make one more likely to commit a crime. Of course, having symptoms of CTE does not prove the presence of CTE. There are other potential causes for CTE-like symptoms. Winslow’s attorneys might order CT, MRI and PET scans to gather as much insight into Winslow’s brain health as possible.

The idea that CTE or other neurological problems caused by playing football could impact culpability is not unprecedented. As explored in SI articles last year, the post-mortem diagnosis of former Patriots tight end Aaron Hernandez with Stage III CTE sparked questions about whether Hernandez’s brain damage might have played a role in the murder of Odin Lloyd and in Hernandez’s decision to hang himself while incarcerated at Souza-Baranowski Correctional Center in Shirley, Massachusetts.

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Hernandez’s CTE diagnosis, which was conducted in association with Boston University’s CTE Center, found that Hernandez suffered from “early brain atrophy, or shrinkage, and large perforations in the septum pellucidum, a central membrane.” The diagnosis currently serves as the basis for a lawsuit brought by Hernandez’s fiancée, Shayanna Jenkins-Hernandez, on behalf of her and Hernandez’s five-year-old daughter, Avielle Janelle Hernandez. Jenkins-Hernandez contends the NFL was negligent in its supervision of Hernandez and such negligence led to a loss of parental consortium for Avielle (loss of parental consortium refers to when a child is deprived of companionship of a parent as a result of negligence). The lawsuit was filed in Massachusetts state court, but in February was moved to federal court.

Returning to Winslow, California law permits defendants invoke what is known as the “diminished actuality” defense. This defense asserts that because of a mental impairment, the defendant lacked the specific intent necessary for the crime to have been committed. Diminished actuality is similar, but not synonymous, with diminished capacity. The latter is outlawed under California law and refers to an argument that because of some impairment the defendant lacked the capacity to form the necessary mental state for the crime charged. Stated differently, diminished actuality contends that the defendant actually lacked the element of intent, whereas diminished capacity instructs that the defendant lacked the capacity to form intent.

Under this paradigm, Winslow’s attorneys could offer evidence and expert testimony showing that he suffered from brain damage—so long, that is, as the purpose of such evidence or testimony would be to claim that Winslow lacked the specific intent necessary to prove that he intended to rape the alleged victims. In contrast, such evidence and testimony could not be used to argue Winslow lacked the mental capacity to form intent.

Even if Winslow’s attorneys can establish that he suffered from football-related brain injury or disease, it would likely be difficult to show that the condition led to Winslow not forming intent to commit rape (and other crimes where intent is a required element). The attorneys may have some success arguing that the condition made it harder for Winslow to reach logical decisions, but establishing that the condition led to an absence of intent seems conceptually difficult. If Winslow intended to rape the women, then regardless of any football-related brain injury or disease, he would be guilty.

Winslow’s attorneys might have better odds with a defense based on insanity, which itself could be linked to a finding of brain injury. Provided that expert testimony and medical evidence prove that Winslow suffered insanity at the time of the crimes, a jury would be authorized to conclude that he is not criminally responsible for his acts. However, Winslow would not walk free in that scenario. Instead of being sent to prison, he would be sent to a state mental hospital and remain committed there for years.

The bottom line is that unconventional defenses are unlikely to aide Winslow in regaining his freedom.

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The NFL will be watching as Winslow’s alleged victims could consider legal action against the league

Even though proof that Winslow suffered from football-related brain injury or disease would probably not insulate him from being convicted, it could still be used by victims to argue that the NFL bears some responsibility for Winslow’s alleged acts. Those victims could insist that the league was negligent in its care of Winslow’s neurological health and that such negligence contributed to him harming his victims.

If this sounds like an unlikely argument to work, it’s because it is. While employers are often vicariously liable (responsible) for the criminal or tortious act of employees when those employees act within the scope of their employment, Winslow would have committed crimes after he retired from the league and also on his own free time. In addition, it would be difficult for victims’ attorneys to prove that Winslow’s brain injury or disease caused him to commit the specific crimes for which he has been charged. Such a condition might have made him more prone to criminal acts, but he still likely retained the requisite agency to decide whether or not to follow the law.

MMQB will keep you updated on the prosecution of Kellen Winslow Jr. and its aftermath.

Michael McCann is SI’s legal analyst. He is also Associate Dean of the University of New Hampshire School of Law and editor and co-author of The Oxford Handbook of American Sports Law and Court Justice: The Inside Story of My Battle Against the NCAA.

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