Today is an important day for Reuben Foster. By the end of it, his legal situation — and with it, his future as a 49er — could be a great deal closer to resolution.
At a preliminary hearing scheduled for Thursday morning in a San Jose courtroom, Foster’s ex-girlfriend is expected to testify that she falsely accused the Niners’ linebacker of causing the injuries that led to the three felony charges related to domestic abuse and gun possession that he now faces.
Foster, who has pleaded not guilty, was charged with domestic violence, forcibly attempting to prevent a victim from reporting a crime and illegal possession of an assault rifle during a Feb. 11 altercation with former girlfriend Elissa Ennis.
Ennis initially told police that he struck her eight to 10 times with a closed fist, smashed her cell phone and dragged her by her hair down some stairs and out of his Los Gatos home, but she has since recanted that story through her attorney, saying she initially accused him because she wanted to “trash his career.” She has also provided prosecutors with a videotape of a fight she had with another woman in a road rage incident two days earlier that she now says was the source of her injuries, which included a ruptured eardrum and a split lip.
The hearing will center around the new information and is likely to lead to one of three possible outcomes. The prosecutors could choose to pursue the charges even without the alleged victim’s cooperation, which would indicate that despite the video, they still consider her original version of events to be the more accurate one. They could choose to drop the domestic violence charges (though the gun charge against Foster would probably still stand). Or Superior Court Judge Nona Klippen could decide that there is no longer sufficient evidence against Foster and dismiss the abuse charges.
The Niners, to their credit, have made their position clear. “If these charges are proven true,” GM John Lynch said in April, “if Reuben did hit this young lady, he won’t be a part of this organization going forward.”
That’s drawing a clear line, but what if the situation turns out to be somewhat murkier? If the case against Foster doesn’t go forward, it won’t necessarily be an indication that prosecutors believe he didn’t strike Ennis, just that they no longer felt they had a strong enough case to prove it.
The District Attorney’s office has been in possession of the video for several weeks, so if prosecutors considered it to be exculpatory, they have had ample time to dismiss the abuse charges ahead of today’s hearing. If the case doesn’t go to trial, but it falls short of completely exonerating Foster, would that be enough to satisfy the Niners that he didn’t hit his girlfriend?
It is not uncommon for victims of domestic abuse to change their minds about cooperating with prosecutors for any of a number of reasons, according to legal observers and domestic violence experts, but Ennis providing a videotape does potentially give her new story more weight. Still, there is other evidence to be considered, including witness testimony, 911 calls and medical records.
Ennis reportedly made emergency calls both from Foster’s home and after she flagged down a ride from a passing motorist after leaving the house. She also received medical attention after the incident, and the personnel who treated her may be able to testify as to whether her injuries appeared fresh, or days old.
In addition to that, there is also the question of the gun charge. Prosecutors say that a loaded Sig Sauer short-barreled rifle was found on the bathroom floor in Foster’s house. There is also another disturbing allegation, that Foster threw Ennis’ dog across the room during their altercation.
It all means that even if the abuse charge is dropped — a big “if”— the Niners can hardly feel confident that Foster has learned to control the kind of behavior that had already raised red flags when they drafted him. He was sent home from the NFL scouting combine last year after getting into a heated argument with a hospital worker during his physical, and he provided a diluted urine sample at the combine, which under the league’s drug policy is treated the same as a positive drug test.
The organization is remaining mum until the case is resolved, but regardless of the outcome the Niners, who drafted linebacker Fred Warner from BYU in the third round last month, are undoubtedly prepared to be without Foster for at least a portion of next season, as he could very well face a suspension by the league for the gun charges.
The question now is whether they are prepared to be without him for good. Foster’s hearing should reveal much more about how the judge and prosecutors view his accuser’s new version of events, and about where the Niners’ threshold for acceptable behavior really stands.
(Top photo: Dai Sugano/San Jose Mercury News via AP Pool)
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