Yodit: All right, Page.
Yodit: You just heard the defense requesting that the court allow them to recall Summer Foster, and she is the daughter of Jane Doe No. 1. Her testimony was less than credible when she gave it and so, of course, her daughter saw her on Court TV testifying, called the DAs with information, the DA wanted to bring her in, did so, she did well, humanized her mom, explained…sort of gave the jury and viewers more context in terms of her mother’s behavior and why she may have testified in the way she did.
And then, she talks about a GoFundMe page with our Ted Rowlands after she had testified. And, of course, the defense saw that and now they’re saying, “This is something that we need to call her back on because there’s bias there. There’s a pecuniary interest. There’s motive.
Yodit: What do you think about the judge’s decision to only limit that to Summer Foster’s credibility and not her mother’s potential mental illness that she refers to?
Page: Well, I think it’s the right decision. I mean, legally, if there is a financial motive when a witness is testifying, that’s clearly fair ground for the defense to explore.
Page: So I completely understand why the defense lawyers want to bring her back, if for nothing more than simply to get out into the record the fact that she has that GoFundMe page. Now, they’re taking a risk, because she was a very effective witness for the prosecution. And so, she’s not gonna be on the stand trying to help the defense. So I think you get her up there, you ask her the question about the GoFundMe page, let the jury know there’s at least some financial interest on this witness’s part that may affect her credibility. But then you sit down. You don’t continue to question that witness.
Page: But the judge is absolutely right that what that witness may have said out of court relating to her mother’s mental health condition is not fair game for new testimony. Because it’s, first of all, a complete hearsay statement. It’s not made by the witness Jane Doe herself. It’s made by the daughter, out of court, not necessarily relevant to the questions that were being asked during the trial. So I agree with his ruling completely.
Yodit: Jane Doe No. 4, on the stand, talked about being raped in a home by Kellen Winslow, from the back, while he’s pushing her head into a guy named Matt’s crotch. She tells the sergeant who was on the stand that she was digitally penetrated. Nothing about Kellen Winslow raping her from the back, nothing about Matt’s crotch. There’s a huge difference there.
Page: Oh, yeah.
Yodit: I mean, so, what do you make of that? Do you, as a prosecutor, because they didn’t, bring in a rape expert to explain why rape victims say certain things, remember certain things? Because Jane Doe No. 4 could recall the fabric of the couch, which is something that people may not realize or may think is important, but then not remember where you were raped or how you were raped. How do you think that chips away at her credibility?
Page: Well, I have certainly seen prosecutors try to bring in expert witnesses like that. Because most jurors who have not been through that type of traumatic experience don’t understand how the human mind works when we’re trying to recall an event. But judges are often skeptical about that type of expert testimony because you have another witness coming in and effectively commenting on the credibility of another witness, and that’s usually not allowed.
So, perhaps they thought about it and then, ultimately, decided they were not gonna be able to get it admitted. But that type of inconsistency, because it occurred at the time of the alleged event, is critical for the defense. I mean, that is one of those focus points that you have to stick with, not just with that witness but throughout the trial, and try to remind the jury that when it happened, supposedly, she was inconsistent about the details.
And not unimportant details: what color car was he driving, what was his shirt like? But exactly what occurred on that day. So I think it’s a critical inconsistency. I think the prosecution could have done a better job explaining why there was that inconsistency.
Page: We’ll see if the defense can use it effectively.
Yodit: All right, Page. So, we were talking during the break about whether we would put a client up on the stand. I know, when I was practicing, it was really, really touch and go. I rarely ever put a client up there. Not because I didn’t believe in what they were saying, but because there are certain, you know, telltale signs that may look as if you’re guilty but, really, it’s just nerves, or maybe you just don’t know how to speak in front of folks.
Page: Or maybe you are guilty.
Yodit: Or maybe you are guilty.
Page: And that’s gonna come out during cross-examination.
Yodit: And you don’t want… Exactly. You don’t wanna subject them to that. But with Kellen Winslow, you know, in opening statements, his attorney Brian Watkins said this was, you know, no strings attached sex. He obviously cheated on his wife. Not…you know, a moral issue, sure, not a legal issue. But it was consensual. Do you feel the need, right now, at this point, if you had to make a decision, if you were representing him, would you put him on the stand to establish that, yes, this was consensual?
Page: That is always, without a doubt, the most difficult decision, I think, a defense lawyer faces in a trial like this. Do you put your client up to allow him or her to give their version of what happened, to formally deny the charges against him, to let the jury hear that person say, “I did not do this?” There’s a temptation to do that, certainly, in a case like this where it really boils down to the credibility of witnesses.
I mean, we’ve heard from a number of them. Some of them have been more credible than others. I think, again, if we’re limiting this case to one or two accusations, then I think the balance tips in favor of calling your client to the stand, especially if your defense at trial is going to be consistent with what he said before. In other words, consensual sex for those two. But in this case, with so many different accusations, so much fodder for the prosecution to use as cross-examination, and for them to be able to go through their case with him on the stand.
Well, did you do this? Did you do that? You heard this witness testify to this. What do you say? I just think the balance in a case like this is leave him in the chair. Don’t put him up. But one thing we should remind everybody, it’s ultimately Kellen Winslow’s decision.
Yodit: For sure, yes.
Page: I mean, a lawyer can give advice, can make recommendations, but the defendant ultimately gets to decide, “Do I really want to go up there and tell my story?”
Yodit: But when you talk about the state not wanting to muddy the waters because maybe there might be a slight inconsistency with what he says happened and what Jane Doe 4 says, Brandon Guillermo is her ex-boyfriend, who they brought on the stand. And he stated, on cross, that she had told him, Jane Doe No. 4, that she was assaulted in a car. Vastly different from what Jane Doe No. 4 said. So, if that were the reason, then why put him on the stand?
Page: Well, but inconsistent statements is very different than an inconsistent version of what actually happened. I mean, the boyfriend wasn’t there at the time the alleged incident occurred. This Matt guy was.
Page: So if Matt’s version of what happened is drastically different, but still incriminates Winslow enough that his lawyers won’t call him, then he’s not gonna show up at trial. But your point is very good. The absence of Matt testifying is something the defense can certainly use in closing arguments. Where’s Matt? You know the state has gone to incredible lengths to bring in all of these witnesses from way back when to try to prove their case. But there was a material person who was present that day. You didn’t hear from him. It’s their obligation to prove their case and they didn’t do it.
Yodit: What were your impressions of Jane Doe No. 5 and how can she, her testimony, help Jane Doe No. 3, who couldn’t identify Winslow?
Page: Well, I think it certainly helps the prosecution establish that pattern of conduct that they want to show the jury in this case, that this guy is out of control. And even after he’s been charged in a serious sex crime case, we let him out on bond, and he’s still a danger to the community. He’s still going after elderly women. And it makes no sense, especially in a public place. So I think her credibility is going to be very important.
The recency of her accusation. Again, this is not something going back several years. It’s something that happened very, very recently. But at the same time, like we discussed earlier, if that was all that Kellen Winslow ever did, we probably wouldn’t be in trial. Again, those accusations, while certainly serious and criminal conduct, probably would not have made it to the point where we’re at a criminal trial in a big high-profile case like this.
Page: But add them to everything else and it paints a very disturbing picture and a very difficult case for the defense.
Yodit: You mentioned the charges. There’s 12. Do you think that that is adding to the confusion for jurors when they actually do receive this long, drawn out instruction from the judge, which I can’t even stay awake for? But it’s important for them to understand what it is. So what do you make of the 12 charges that they are trying to get Kellen Winslow on?
Page: You know, I do think it’s possible in a case like this for the prosecution to overdo it, to charge too many different counts for one alleged victim.
Page: You know, I think most people come into jury service, if they’ve never done it before, and say, “Okay, I’m here to decide whether he did it or didn’t do it, whether he’s guilty or innocent.” And then, they look at, or are read, at the beginning of trial, a 12-count indictment and they’re like, “Wow, I’ve got to analyze each one of these cases and each one of these charges individually.”
And that’s exactly what the judge is gonna tell them to do. But as the trial goes through, and it’s interesting. We heard the reporters say one of them already ran out of notes in their notebook.
Yodit: Yeah. Oh, they’re writing.
Page: She needs to get a new one.
Page: They start to focus in on the job and they get it. And so, by the time the jury instructions are given to a jury, especially after a longer trial like this, it’s been my experience they are paying close attention. And they’ll take those charges back, usually the judge will let them have a written copy, and they will go through, and they will try to match it up. And they may spend a lot of time, even though they’ve already made up their mind whether he’s guilty or innocent. They’re gonna do their job and go through those jury charges, as complicated as they may be.
Tom is a trial and appellate lawyer focusing on criminal defense and civil trials. Tom is the author of our firm’s “The Federal Docket” and a contributor to Mercer Law Review’s Annual Survey in the areas of federal law. Tom was named a “Top 40 Under 40” lawyer by The National Trial Lawyers, and is a recognized expert in federal sentencing law. He graduated with honors from the University of Georgia Law School where he served as a research assistant to the faculty in the areas of constitutional law and civil rights litigation. Read Tom’s reviews on AVVO. Follow Tom on Linkedin.