A preliminary hearing was held last Thursday to determine if the domestic violence case against 49ers linebacker Reuben Foster would proceed to trial. Santa Clara Superior Court Judge Nona Clippen sat presiding.
Elissa Ennis, the complaining party in the matter, admitted under oath that she fabricated the entirety of the complaint. Per her testimony, Foster never dragged her from his residence by her hair, never destroyed her cell phone in an attempt to prevent her from calling the police, never abused her dog, and never struck her. It is worth noting that it is highly common for domestic violence victims to recant their prior reports, to state that they were lying, even to the point of creating legal jeopardy for themselves.
Ennis stated that her motivation was partly out of rage, and partly motivated by a desire to shake Foster down for money. She then tearfully remarked that she needed help, and that she would be checking into a clinic for that purpose. Ennis further admitted under examination that she had spent time in jail for falsely accusing a prior boyfriend of domestic violence, and went on to admit that she had stolen thousands of dollars of jewelry and cash from Foster after the incident. She even testified to the effect that she videotaped and followed Foster to a car dealership, and planned to sell the video to the tabloid news organization TMZ.
Submitted as further evidence to the court was a video depicting Ennis in a brawl arising from a road-rage incident near Pier 39. This video allegedly shows a fight that occurred the day before Ennis reported Foster.
THE CASE CONTINUES
The California Rules of Professional Conduct regulates the conduct of attorneys, and Rule 5-110 entitled "Special Responsibilities of a Prosecutor” states in relevant part that a “prosecutor in a criminal case shall [n]ot institute or continue to prosecute a charge that the prosecutor knows is not supported by probable cause[.]"
Ethically, the Prosecutor’s office would have to still be able to point to specific, articulable facts giving rise to an objectively reasonable belief that each element of these specific charges of domestic violence is present. From their perspective, they would have to believe that the physical evidence and video submitted did not sufficiently explain Ennis’ injuries.
The DA’s Office might not be the deciding factor in this matter. Judge Nona Clippen presides over the matter, and will make a ruling Wednesday May 23, 2018 as to whether or not the case may continue given the testimony presented at the preliminary hearing.
DID THE NINERS MAKE THE RIGHT DECISION? IT ALL COMES DOWN TO THE VIDEO.
Whether the team made the morally correct decision in waiting remains to be seen. Foster’s factual innocence would vindicate the team’s decision not to cut him upon arrest.
The complainant’s testimony is now of little probative value given 1) her admitted (although not verified) prior conviction for a false accusation / false police report and 2) the fact that she fully recanted. The case now turns on the remainder of the evidence.
The physical evidence will largely determine if the Santa Clara County District Attorney’s Office will continue. If the video shows Ennis sustaining similar injuries from another person on or about the same time she alleged Foster caused those injuries, its very difficult to imagine any prosecutor believing they’d be able to convince a jury of Foster’s guilt beyond a reasonable doubt.
Further, the abrasions or bruises may not be consistent with being struck by a 230-pound linebacker, and might be consistent with the alleged strikes from the woman in the video. Both the physical evidence and the video have yet to be made public, although ace 49ers beat reporter Matt Maiocco notes that the video was a 22-second clip that was flagged and removed from Instagram for nudity after Ennis’ top came off in the scuffle.
The assault weapons charge may still continue, but is a ‘wobbler’ - it could easily be charged as a misdemeanor, which would likely see Foster doing a number of community service hours.
Whether the team was right for sticking by Foster’s side is not a matter for a court to decide – it’s a matter for the entire community of the San Francisco Bay Area to decide. This will largely come down to the video, if it is ever released. If Foster wishes to clear his name in the community, releasing an allegedly vindicating video is something he must do.
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