Linebacker Reuben Foster remains away from his 49ers teammates during the offseason program as he faces three felony charges, including two for domestic violence.
Foster’s case took a major turn on Thursday with explosive testimony from his ex-girlfriend who accused him on Feb. 11 of dragging her down stairs by her hair, punching her 10 times in the head with a closed fist and destroying her cell phone.
The 49ers declined comment on the developments, as a decision is expected next week on whether the case against Foster will move forward. An NFL spokesman told NBC Sports Bay Area that the league will “continue to monitor all developments in the matter.”
Here is a rundown of the developments and testimony at the Hall of Justice in San Jose on Thursday:
The bottom line
Judge Nona L. Klippen, heard testimony and arguments for more than four hours. Typically, a judge will make an immediate decision after a preliminary hearing whether there is probable cause to advance a case to trial.
In this case, Klippen said she needed more time to consider the evidence and sort out “a number of different statements.”
Foster did not take the stand. He spoke in court just once – “Yes, your honor” -- when he waived his right for an immediate judge’s decision. Judge Klippen will make her ruling on Wednesday, May 23, at 3:30 p.m. If the judge determines there is probable cause, a trial could then be scheduled for July. If she does not find probable cause, one or more of the charges could be dismissed.
Foster’s only noticeable reaction during testimony came when he shook his head, indicating he disagreed with Los Gatos police officer Katrina Freeman when she testified Foster appeared agitated when she spoke to him on Feb. 11 at the Los Gatos home after the alleged incident.
Prosecutor Kevin Smith called four witnesses to the stand in hopes of strengthening the Santa Clara County District Attorney office’s case to prove probable cause and send Foster to trial. But none of the four appeared to provide convincing testimony against Foster, as Foster’s attorney, Josh Bentley, expertly navigated cross-examination.
The key testimony to the DA office’s case, Foster’s accuser, ended up being a star witness for Foster’s defense.
Foster’s ex-girlfriend, Elissa Ennis, testified against the advice of her lawyer, Stephanie Rickard. Ennis was the second witness called to the stand. She admitted she was angry and wanted to destroy Foster’s career after he said he would break up with her. On the stand, she admitted lying to a 911 dispatcher, police, hospital staff and her mother when she told them Foster injured her during an argument on Feb. 11.
Why did Ennis say she lied? She said she was angry, hoped to destroy Foster's career and wanted money from him. She admitted to stealing more than $8,000 of his money, as well as jewelry, including two Rolex watches, which remain in a safe deposit box in Louisiana. She said Foster has not given her any money -- "not a dime," she said -- since the alleged incident in Los Gatos.
When Bentley asked her why she would appear under oath and risk prosecution for perjury, theft and lying to police, she answered, “I had to do the right thing.”
The first witness was the motorist who stopped to allow Ennis to use his cell phone. He said Ennis appeared calm as she made a couple of phone calls, including to 911. The calls were made, testimony showed, after Foster tried to remove Ennis and her clothes from the house. Ennis twice re-entered the house, the second time through forced entry through a glass door at the back.
The final two witnesses were detective James Wiens and Freeman, who was one of 12 officers on the scene at the Los Gatos home on Feb. 11. The prosecution aimed to establish that Ennis provided the most accurate account of the alleged incident with her initial statement to investigators.
The recantation and video
Wiens, the lead investigator from Los Gatos police, was assigned the case. One day after Ennis told police that Foster dragged her down the stairs by her hair, punched her approximately 10 times, threw their bulldog across the room and spit on her, she told Wiens via phone from Louisiana that she made up the story. Freeman testified that the dog did not appear injured.
Wiens said Ennis first told him about a fight with another woman in San Francisco that caused the injuries. Wiens said she said she had been drinking and got into an altercation outside a bar near Union Square.
On the stand, Ennis said she had not been drinking and was involved in a road rage incident near Pier 39 in San Francisco. She got into what she described as a 15-minute fight. A 22-second clip of that fight was posted on Instagram. The video was flagged and deleted, apparently due to nudity. In the struggle, Ennis’ top was ripped off.
The video was not shown in open court, other than when Bentley played it for Wiens twice to refresh his memory. Wiens acknowledged that some of Ennis’ injuries could have occurred from the specific actions captured on the video.
Wiens admitted to initial skepticism about the veracity of Ennis’ account of the fight and could not confirm the date, time or location of the altercation that involved Ennis from the video recording.
The prosecution also suggested Ennis and Foster spoke on the phone a day or two after the alleged incident in Los Gatos. Wiens said Ennis’ mother told him that she saw Ennis speaking on the phone in the early morning hours a day or two after the alleged incident. When Ennis’ mother said, “I know you’re talking to Reuben,” Elissa Ennis just rolled over.
Upon cross-examination from Foster’s attorney, Josh Bentley, Wiens admitted he had no evidence Ennis and Foster spoke. The defense likely belived this interaction is relevant because it is believed in many cases in which an alleged victim of domestic violence recants her story, a turning point occurs when the woman begins to see the alleged abuser as the victim.
The photo evidence
Photos were placed into evidence that show apparent injuries to Ennis’ neck, face, hands and knee.
The prosecution said if Ennis had gotten into a fight the night before the alleged incident with Foster, her hands would have shown more evidence of the struggle. Bentley pointed out that two fingernails appeared damaged and some of the documented abrasions could have been from fingernails during a struggle.
Officer Freeman, who wore a body camera and referred repeatedly to her initial report while on the stand, said Ennis told her that Foster punched her 10 times with a closed fist. Bentley asked the officer if Ennis’ injuries did not appear consistent with someone who had been punched repeatedly by a professional football player.
“It’s not my job to make an opinion,” Freeman said.
Bentley countered, “I’m asking for your opinion.”
Said Freeman, “People punch differently.”
The weapons charge
In addition to the two domestic violence charges, Foster has also been charged with felony possession of an assault weapon. Foster legally purchased the weapon, a Sig Sauer 516, in Alabama. Bentley described this case as a wobbler, which means it could be considered a felony or a misdemeanor. The defense asked the judge to consider the less-serious of the options. Bentley pointed out the gun is legal in many states and was not used in any criminal act.
Smith, the prosecutor, stressed that the gun is illegal under California law and was not safely stored. It was found on a bathroom floor after Ennis directed law enforcement to its location within the Los Gatos house.
The Ennis-Foster relationship
Ennis originally told police she and Foster had been dating for five years and lived together for two years. On Thursday, she said they had known each other two to three years. She said she would travel to the Bay Area a couple of times a month beginning in August 2017 and stayed with Foster, who moved to Los Gatos just before Christmas.
There was testimony that Foster smashed Ennis’ phone, once after she was “invading his private space” to record video of him sleeping. Another time, she said, Foster broke the phone after she “politely” threw it at him. Ennis pushed back on the idea Foster broke her phone, saying it was his phone -- that he paid for it, and she was merely using it.
Bentley argued in his closing statement that the felony charge of attempting to prevent a victim from reporting a crime is not applicable because no crime was committed in the first place.
When Foster sold the Corvette that Ennis had been driving, she admitted to planning to take photos and sell them to TMZ. She said under oath that she was looking to profit from the situation.
Ennis also admitted to falsely accusing another former boyfriend of domestic violence in 2011 when he said he threatened to break up with her. Ennis was arrested in 2011 and charged with two counts of aggravated assault in Baton Rouge, Louisiana, the Bay Area News Group reported. The case was dismissed nearly two years later.
At the end of her testimony, which lasted approximately 90 minutes, the prosecution asked Ennis if she still loved Foster.
“I don’t love him,” she said, crying. “I need help for myself.”
Ennis said she would seek unspecified treatment at a clinic upon her return to Louisiana.