Despite recant, DA seeks Foster charges
In 49er Foster’s case, district attorney proceeding with domestic-violence charges even after alleged victim called said her own accusations ‘based on lies’
SAN JOSE » Although the woman who accused Reuben Foster of domestic violence recanted her claims, prosecutors are pressing forward with the criminal charges against the San Francisco 49ers star linebacker and reviewing a new video that the reported victim contends shows what actually happened.
Foster faces felony counts for domestic violence, forcefully attempting to dissuade a witness, and possession of an assault weapon, stemming from his Feb. 11 arrest in Los Gatos involving his former live-in girlfriend. He has not entered a plea, and was silent during a brief court appearance Monday, then left the Hall of Justice without making any public comment.
At the prosecution’s request, Superior Court Judge Nona Klippen dismissed a misdemeanor ammunition charge against Foster after authorities reportedly found a high-capacity magazine for a SIG Sauer 516 short-barreled rifle at his home.
The law banning the magazine is currently blocked by a federal
court injunction issued last year.
Last week, the 28-yearold reported victim issued a statement through her San Jose-based attorney Stephanie Rickard, saying the charges against Foster were “based on lies” and that “(Foster) did not strike her, injure her or threaten her.” She also gave the Santa Clara County District Attorney’s Office a video she says backs up her client’s retraction.
Rickard appeared at the hearing Monday but declined comment to reporters.
The Santa Clara County District Attorney’s Office has not commented directly on the retraction. However, after Foster was arraigned April 12, the office said it was prepared to prosecute even if the reported victim does not testify.
Jim Demertzis, supervising attorney in the DA’s family violence unit, asked Klippen for more time to review the video. Another court date is set for May 8.
“Additional evidence was provided to the People that warrants further investigation so we can take this case to a just result,” Demertzis said after the hearing.
Domestic-violence victim advocates, particularly those who focus on the partners and spouses of professional athletes, have maintained skepticism of such retractions, describing a troubling power dynamic where victims become reluctant after assessing how much they stand to lose personally and financially. Domestic-violence and sexual-assault charges were either dismissed or significantly reduced because a victim or witness refused to testify in recent cases involving former 49ers players Ray McDonald, Ahmad Brooks and Tramaine Brock.
Demertzis weighed in on that issue after the hearing.
“Sadly too often, victims of domestic violence for a host of reasons choose not to cooperate with the process that holds their abusers accountable,” he said. “If the evidence independent of the victim in a domestic-violence case is compelling, it’s the prosecution’s duty to seek justice.”
Foster has been ordered to stay away from his accuser and remains free on $75,000 bail. He also has voluntarily agreed to stay away from the 49ers facility during the offseason workouts that began two weeks ago. The team has said it will cut him if it’s proven he hit the woman, and he still could face at least a six-week NFL suspension based on its domestic-violence policy.
Authorities contend that Foster “dragged” Elissa Ennis “by her hair, physically threw her out of the house, and punched her in the head 8 to 10 times,” rupturing her eardrum. Ennis, who was not named in charging documents but who identified herself in her public retraction, then reportedly flagged down a bystander to call 911.
Ennis now asserts her head injuries that led to Foster’s arrest happened in an earlier fight with another woman captured on video, “and that Foster tried to end his relationship with Ennis after he learned of the fight.”
“She was extremely upset and told him if he broke up with her she would ‘trash his career,’ ” Rickard said in the statement.
The statement added that “Ennis apologizes to everyone that may have been harmed in this case, especially Mr. Foster.”
Steven Clark, a criminal-defense attorney and former county prosecutor, said Ennis’ statement carries an extra air of credibility because she issued it through Rickard, a well-regarded attorney in the area.
“It’s not an unusual situation for a prosecutor to deal with this in a domestic-violence case. But this is more unusual than the classic recanting case because of the way it was proffered by a very experienced criminal lawyer, who would carefully review whether to make a statement,” Clark said. “It clearly undermines the allegation that the severity of injury was caused entirely by Mr. Foster. It creates the potential for reasonable doubt on that issue for sure.”
But Clark also noted that prosecutors likely were aware of the possibility that the alleged victim might not cooperate. Ennis’ statement criticizes the DA for staying with the case after she recanted.
“That is why DA stated it vetted the case so if that eventuality bore out, they could still move forward,” he said. “They may want to move forward and test the case in court in a preliminary hearing and see how credible (her) story appears.”
“Despite the allegation she wanted to ruin his career, their case is based on contemporaneous statements by her, a witness, the 911 phone call, and the doctor,” Clark added. “They must now carefully review the new video evidence to ascertain the version of events that is credible and provable in court.”