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What to expect from Reuben Foster's preliminary hearing

What to expect from Reuben Foster's preliminary hearing

San Francisco 49ers linebacker Reuben Foster, through his attorney, entered a plea of not guilty on May 8 to three felony charges. The action set in motion the timetable for the preliminary hearing, which is required to take place within 10 days of the plea.

On Thursday morning at the Hall of Justice in San Jose, Foster will appear in court for the hearing to determine whether there is enough evidence to warrant moving forward with a trial.

Foster faces three felony charges: Domestic violence with an allegation he inflicted great bodily harm; forcefully attempting to prevent a victim from reporting a crime; and possession of an assault weapon.

Here are the answers to some pertinent questions surrounding Foster's preliminary hearing:

What will happen on Thursday?
Both sides will present their arguments to a judge in what amounts to a mini-trial. The prosecution will aim to establish there is “probable cause” to proceed with a jury trial. The defense will attempt to show there is no reason for this case to move forward.

The prosecution and the defense can be expected to call witnesses to make their cases.

The decision whether or not there is enough evidence for a trial rests with the judge, who must weigh arguments on both sides and evaluate whether there is “some rational ground” for assuming the possibility a crime was committed.

Will the alleged victim testify?
Elissa Ennis, 28, who is Foster's ex-girlfriend, is scheduled to appear in court. She initially accused Foster of domestic violence, but later recanted the version of the events she initially told authorities. After the DA’s office still moved forward with charges, she made a statement through her attorney, admitting she lied to police during the initial investigation.

The statement revealed there is a video that proves Foster is not responsible for the woman’s injuries. The woman claims to have gotten in a fight with another woman, which was captured on video.

If the Santa Clara County DA’s office does not call on her as a witness – after all, she is expected to deny under oath that Foster injured her – the defense almost assuredly will call her as a witness on Foster’s behalf.

Why is the DA’s office moving forward?
The alleged victim has recanted her story, which would seem to make it much more difficult on the prosecution to prove its case. But all indications are that the DA’s office has no intention of dismissing its case against Foster.

Ennis stopped a passing motorist after the alleged incidence and called 911. She talked to police officers and sheriff’s deputies at the scene. And she was treated at a local hospital. The prosecution could call more than a handful of witnesses during Thursday’s hearing to support the charges of domestic violence against Foster.

Anyone with whom the alleged victim came in contact during that time frame could testify. The prosecution will try to convince the judge the most accurate account of the alleged incident was her initial statement – not the recanted version.

How common is it for alleged victims to recant their stories?
There does not appear to be empirical data on the subject, but anecdotally it is not uncommon for alleged victims to recant their statements or decline to cooperate with the district attorney’s office.

The alleged victim in the Tramaine Brock case last year was uncooperative with the DA’s office, and that case was ultimately dismissed. The situation surrounding Foster is different because the DA’s office appears to believe there are other witnesses who will substantiate Ennis’ initial accusations.

Will the video be shown?
The judge will almost certainly view the video of the alleged fight involving Ennis and another woman. It is not known whether the video will be shown in open court or privately in the judge’s chambers.

If the prosecution believes the video does not support the claim that Ennis’ injuries, including a ruptured ear drum, was caused by the fight with the other woman, they could submit the video as evidence. Or, the defense could use the video for its own case to show Ennis sustained the injuries before the alleged incident involving Foster.

Is Ennis at risk for admitting she lied to police?
If Ennis testifies under oath that she initially lied to police, she could be subject to prosecution. Former Santa Clara County District Attorney Steven Clark said he does not believe the DA’s office would pursue criminal charges against Ennis, especially if there is “some element of accuracy” to her initial statement.

How serious is the weapons charge?
It ranks a distant third on the list of the charges against Foster. Even if the domestic violence cases do not advance, the DA’s office could still pursue the assault weapon charge.

But Clark said it is likely to be viewed as “more of a technical violation" and could be reduced to a misdemeanor. The result could be nothing more than volunteer work and destruction of the weapon, Clark said.

What happens after the preliminary hearing?
If the judge believes there is probable cause to continue forward with the legal process, a jury trial would be scheduled to begin within 60 days. If the judge rules there is not probable cause, then Foster would be legally cleared of the domestic violence charges.

But, then, the focus would shift to the NFL’s own investigation. As the league's policy on personal conduct states, “It is not enough simply to avoid being found guilty of a crime.”

Under the policy, a first offense under the description of domestic violence, would result in a baseline suspension without pay of six games. A longer suspension could be warranted with consideration given to any “aggravating or mitigating factors,” according to the policy.

If Foster is cleared of criminal charges but the NFL determines there is enough evidence to warrant a suspension that would seemingly place the 49ers in a position to act. General manager John Lynch and coach Kyle Shanahan are both on record saying no player who hits a woman will have a place with the organization.

Foster, who remains under contract to the 49ers, is not taking part in the team's offseason program while his legal issues remain unresolved.

Recapping Reuben Foster's day in court and what happens next

Recapping Reuben Foster's day in court and what happens next

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.

The testimony
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.

With the prosecution's case weakening, 49ers and Foster close to getting what they desire

With the prosecution's case weakening, 49ers and Foster close to getting what they desire

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.

[RELATED: After hours of emotional and conflicting testimony, ruling on Reuben Foster to come May 23]

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.