SAN JOSE -- Reuben Foster no longer faces any charges of domestic violence, clearing the way for him to join the 49ers’ offseason program Thursday.
Judge Nona L. Klippen ruled Wednesday that the Santa Clara County District Attorney’s office did not show sufficient evidence during last week’s preliminary hearing to advance the case against Foster.
The judge also reduced the charge of possession of an assault weapon to a misdemeanor. A pre-trial hearing was scheduled for June 6.
The ruling at the Hall of Justice officially drops the charges against Foster of felony domestic violence with an allegation he inflicted great bodily injury and forcefully attempting to prevent a victim from reporting a crime.
Foster, 24, a linebacker who was a first-round draft pick in 2017, has not taken part in the 49ers’ offseason program, which began April 16. Despite some pressure from local media and the public, the 49ers did not remove Foster from the team.
Shortly after the ruling came down, 49ers general manager John Lynch released a statement:
“The organization is aware the domestic violence charges against Reuben Foster were dismissed earlier today. As a result, he will have the opportunity to rejoin the team tomorrow. It has been made clear to Reuben that his place on this team is one that must continue to be earned. We will continue to monitor the remaining misdemeanor charge," Lynch said.
Lynch said last month that the 49ers organization wanted to gather more facts. Coach Kyle Shanahan, echoing Lynch’s statement from days earlier, spelled out the 49ers’ policy on domestic violence.
“We can promise you guys if there’s someone who ever hits their significant other, their girlfriend, something like that, that person’s not going to be on our team,” Shanahan said.
Teammates Jaquiski Tartt and Adrian Colbert attended court on Wednesday in support of Foster. As he left the courthouse, Foster was asked how he was doing, he nodded affirmatively. Shortly before entering a black SUV to leave, he raised his right hand to give a "thumbs-up" sign.
Foster remains subject to discipline under the NFL's policy on personal conduct, which states a criminal conviction is not necessary for the league to take action.
"We continue to monitor all developments in the matter which remains under review," NFL spokesman Brian McCarthy said in a statement.
Neither prosecutor Kevin Smith nor Foster’s attorney, Josh Bentley, stopped for comment on the way out of the courthouse. The DA's office released a statement approximately an hour after Judge Klippen announced her ruling:
“We are disappointed in the judge’s decision. We are disappointed because the evidence demonstrated that Mr. Foster seriously hurt his girlfriend. Some have wondered why we still think Mr. Foster hurt his girlfriend when she said that he didn’t. Recantation is common among domestic violence victims. Some are scared, some feel guilty, some are coerced, some need money. Whatever the cause, we move forward on cases when victims falsely recant because we know that if we don’t more victims will be hurt. Our commitment to domestic violence survivors is unwavering.”
Foster’s ex-girlfriend initially accused him on Feb. 11 of dragging her by the hair, punching her 10 times with a closed fist, spitting on her, and destroying her cell phone to prevent her from reporting the crime to police.
The woman, Elissa Ennis, recanted her testimony under oath last week at the preliminary hearing. Ennis testified last week that she attacked Foster with a clothes hanger. But when prosecutor Kevin Smith asked Ennis if Foster put his hands on her, she answered, “No, sir. Not once.”
The judge, in issuing her decision, said the injuries were not consistent with 10 punches in the face from a professional football player. The judge said the injuries were more likely the result of a fight that Ennis said had with another woman the night before the alleged incident with Foster.
Two days after the alleged incident at Foster’s home in Los Gatos, Ennis recanted her statements to police. Under oath on the witness stand last week, she admitted that she became enraged when Foster threatened to break up with her.
“I was going to f--- up his career,” she said on the stand. When asked why she stepped forward to tell the truth about her initial allegations, Ennis said, “I had to do the right thing.”
Ennis added, “It was all a money scheme. I didn’t want to get this far in the news.”
Ennis, who testified against the advice of her attorney, Stephanie Rickard, said she also stole more than $8,000 from Foster, as well as two men’s Rolex watches, which remain in a safe deposit box in Louisiana.
The judge said Ennis established a motive for the false report. Testimony also established that Ennis was unusually calm and composed while reporting the alleged incident. The judge also noted Ennis' history, in which she admitted to falsely accusing another man of domestic violence in 2011 when he threatened to break up with her.
There was also no evidence that Foster and Ennis were in an abusive relationship, the judge concluded. Foster did not exercise control over Ennis' finances or comings and goings, and there was no evidence he offered to compensate her for her testimony, the judge said.
The DA’s office filed the formal criminal charges on April 12. Ennis had already recanted her original statement to investigators and the DA’s office was made aware of a video that purportedly shows Ennis in a fight with another woman in San Francisco after a road rage incident in which her injuries could have been sustained one night before the alleged incident with Foster.
In the statement that announced the formal charges last month, Smith said, “Our office handles between 4,000 and 5,000 domestic violence cases each year. We only hope that this case illuminates the tragic regularity of the rest.”