The prosecution’s case in the Reuben Foster domestic violence hearing seemingly continues to weaken, and now the judge will decide whether there is enough usable evidence to continue the trial at all.
With a recantation under oath by the alleged victim, Elissa Ennis, and a claim that she had made a false accusation of battery against a former boyfriend in Louisiana that has not yet been confirmed, she seems at first and second glance like a perfectly dreadful prosecution witness. Indeed, her testimony at Thursday’s preliminary hearing was harmful mostly to her, and that this case may be reduced to that old Law & Order line of questioning, “Were you lying then, or are you lying now?”
None of this, of course, is the same as proving that Foster, the 49ers’ promising linebacker, did not lay hands on Ennis in the manner she claimed back in February. It does seem to indicate, though, that the Santa Clara County district attorney either has to hope the evidence gathered at the hospital of the beating she originally claimed was delivered by Foster does not match her claim that she incurred the injuries in a fight with another woman, or that the judge, Nora Klippen, determines that the prosecution cannot clear the reasonable doubt hurdle.
And the same bar almost surely allows him to continue his career with the San Francisco football team, as the team has desired all along. General manager John Lynch has maintained that (a) they believe Foster’s denials and (b) he would have to be found to have beaten her to lose his job, which presumably means only a conviction would satisfy them.
This would seem to fall under the old talent/tolerance scale for legal transgressions by sports and entertainment figures – that if one is talented enough, tolerance will follow. The 49ers’ official stance on domestic violence incidents has been, to put it politely, exceedingly flexible, but unless the prosecution can somehow rehabilitate their chief witness’ credibility against her will, their decision to defer action has probably helped both them and Foster in their main goal – keeping him employed by them.
Klippen is expected to rule next Wednesday on a motion to dismiss the case, and she may determine that Ennis' recantation Thursday was less believable than her original claims. There is a history in domestic violence cases of genuine victims walking back their stories out of fear, so this likely will not have a clean ending either way.
But we should learn this coming Wednesday whether it has a clean enough ending. The evidence will have to overcome a high bar though – the victim’s insistence that Elissa Ennis was indeed lying then and telling the truth now, rather than the other way around.