Legal analyst: ‘This is a gamble worth taking for Reuben Foster'


SAN JOSE – San Francisco 49ers linebacker Reuben Foster on Tuesday put the Santa Clara County District Attorney’s Office on the clock to begin to prove its case.

Foster, through his attorney, Josh Bentley, entered a plea of not guilty to felony charges stemming from a Feb. 12 incident in Los Gatos. Foster is charged with domestic violence with an allegation that he inflicted great bodily injury, forcefully attempting to prevent a victim from reporting a crime, and possession of an assault weapon.

A preliminary hearing is set for Thursday, May 17 at 9 a.m.

The alleged victim, Elissa Ennis, recanted the accusations she originally provided to police. On April 24, she released a statement through her attorney that said the charges against Foster were “based on lies.” She said the injuries she sustained, including a ruptured ear drum, were the result of a fight with another woman. The DA’s office has videotape of the alleged fight involving the two women.

“It’s fair to assume the videotape is the centerpiece of this case, and the prosecution wants to carefully review it and make sure it’s authentic,” said Steve Clark, legal analyst, a former prosecutor and criminal defense attorney.

Now, the DA’s office must proceed quickly and get ready for the preliminary hearing. Neither Bentley nor the DA’s office was available for comment following Tuesday’s hearing.

“What you saw today was Reuben Foster saying, ‘I’m ready for court and I want my day in court.’ And they will now have to move forward with the preliminary hearing on May 17th or the DA may have to dismiss the case,” Clark said.

“This is a gamble worth taking for Reuben Foster because he’s up against a time situation with the 49ers. There’s a lot of pressure to get this case resolved, and I think they are ready for their preliminary hearing.”

Clark said he expects Ennis, Foster’s former girlfriend, to be in court on May 17.

“My sense of it is, the accuser will be here in court, that there is a possibility she will testify,” he said. “That will be a very dynamic proceeding because if she says she lied initially, under oath, that is something that will be prosecutable. She’s putting herself in harm’s way.

“The question would be, is it more important to get the story right that she told or is she going to say she’s not going to take the stand because I have a Fifth Amendment privilege? But I think the accuser will be here. Whether she testifies or not I think has yet to be determined.”

Clark said he does not believe the DA’s office would pursue criminal charges against Ennis, especially if there is “some element of accuracy” in her initial report to the police, he said.

The firearm charge could still proceed, regardless of the outcome of the domestic violence charges. But Clark said he views the possession of an assault weapon as “more of a technical violation” that would like be reduced to a misdemeanor.

"The burden is on the people (DA's office)  to show that Mr. Foster did this beyond a reasonable doubt," Clark said. "So the murkiness that’s been created here is very problematic for the DA, and they need to evaluate, ‘Is this the kind of case we can more forward on, not just at a preliminary hearing, but at trial or should we simply go after the firearm charge?'"


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