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Will Kellen Winslow II use a CTE defense in his second trial?

Mike Florio

Before the first trial of former NFL tight end Kellen Winslow, some speculated that his lawyers would try to attribute his alleged sexual violence and perversions to head trauma. They didn’t.

With Winslow now facing a retrial on eight of 12 counts on which the jury deadlocked, it’s fair to ask whether Winslow’s lawyers will reconsider their decision.

The recent item from Robert Klemko of SI.com regarding Winslow’s history and habits hints at what could happen the next time Winslow faces a judge and jury regarding allegations of rape and other sexual misconduct.

Kellen does have CTE, there’s no two ways about it,” a source close to the Winslow family told Klemko.

As Klemko notes, however, CTE still cannot be diagnosed in living patients.

“The way I view CTE is: Just like any debilitating brain disorder, it will bring out genetic problems and make them worse,” Dr. Robert Cantu, a Boston University professor of neurology and neurosurgery, told Klemko. “If you were genetically programmed to have a problem with, for instance, aberrant sexual behavior, put CTE on top of it and it’s just like pouring kerosene on a fire.

“However, you have to balance that with this: The overwhelming majority of people who commit the kind of acts that Kellen Winslow is alleged to have committed didn’t play football in the NFL, didn’t have repetitive head trauma, and, clearly, CTE wasn’t why they did what they did.”

As previously explained, an effort by Winslow’s lawyer to interject CTE into the case would result in a battle of expert witnesses, with one or more attributing his behavior to head injuries and one or more others debunking that theory. Moreover, to use a CTE-based defense to avoid legal guilt, Winslow’s lawyers would have to essentially admit factual guilt. It would be tricky, to say the least, for Winslow’s lawyers to take the position that he didn’t do it but that if it he did it, he did it because of brain injuries.

Given that Winslow’s lawyers did enough to avoid (or, perhaps more accurately, the prosecution didn’t do enough to obtain) convictions on multiple rape counts despite a finding of guilt on one rape charge, the game plan for the do-over may be to simply attack once again the credibility of the witnesses and the sufficiency of the evidence, hopeful for another hung jury. With Winslow’s freedom, possibly for the remainder of his life, hanging in the balance, it’s an important strategic decision for his lawyers to make.