Santa Clara County Judge Nona L. Klippen dismissed charges of domestic violence with an allegation Foster inflicted great bodily injury and forcefully attempted to prevent a victim from reporting a crime, citing “insufficient cause” to believe either charge “rose to the level” of probable cause, which is the burden of proof needed to move a case to a jury trial.
Klippen repeatedly cited a lack of evidence against Foster in either of the domestic violence charges. She said she spent the past six days looking at the “totality” of evidence and did not see any testimony or physical evidence that indicated Foster had harmed his former girlfriend, Elissa Ennis.
As for the felony charge for possession of an illegal firearm, Klippen reduced that charge to a misdemeanor, with a pretrial hearing set for June 6 at 9 a.m. local time. Klippen granted the motion by defense attorney Josh Bentley to reduce the charge because possession of the gun did not violate federal law and it was purchased legally in Alabama.
Foster did not comment as he left the Santa Clara Hall of Justice, but he smiled and offered a thumbs-up when asked how he was feeling. Niners teammates Adrian Colbert and Jaquiski Tartt attended the hearing in support of Foster.
Not long after the ruling, 49ers general manager John Lynch issued a statement saying Foster can return to the team’s offseason program Thursday.
“The organization is aware the domestic violence charges against Reuben Foster were dismissed earlier today,” Lynch said in Wednesday’s statement. “As a result, he will have the opportunity to rejoin the team tomorrow. It has been made clear to Reuben that his place on this team is one that must continue to be earned. We will continue to monitor the remaining misdemeanor charge.”
Foster was initially arraigned on the felony charges in April, stemming from a Feb. 11 incident at his home in Los Gatos, California. He has not participated in any team activities since his arraignment as he awaited the resolution of his legal issues.
Initially, Ennis told authorities that Foster had hit her up to 10 times, dragged her out of his house, threw her to the ground and spit on her in a domestic altercation. Ennis alleged that Foster broke her phone and threw their bulldog at her. Among the injuries Ennis suffered was a ruptured eardrum that required a hospital visit later in the day.
Judge Klippen’s decision comes less than a week after Foster’s preliminary hearing, at which Ennis testified that she lied about Foster hitting her and that she made up the initial story to police on Feb. 11 because she wanted to ruin Foster’s career after he broke up with her.
“I was pissed, and I wanted to end him,” Ennis testified.
When asked by prosecutor Kevin Smith if Foster ever hit her, Ennis replied, “No, sir. Not once.”
Ennis said she suffered the injuries on the heels of a fight with another woman in San Francisco on the night of Feb. 10. According to Ennis, that altercation came as the result of a road-rage incident and the ensuing fight lasted about 15 minutes. A 22-second video of that incident later surfaced on social media, and Ennis turned it over to authorities after receiving it from a friend.
Ennis testified against the advice of her attorney, Stephanie Rickard, but said she felt the need “to do the right thing” by telling the truth under oath even if it meant admitting to previous lies and to stealing more than $8,000 and two Rolex watches from Foster after their breakup.
In her testimony, Ennis also admitted to falsely accusing a former boyfriend of domestic violence in Louisiana in 2011.
While Klippen acknowledged there was a question of credibility surrounding Ennis’ testimony, she pointed to the lack of evidence against Foster as her reason for not moving the domestic violence charges to trial.
Among the points Klippen drove home were that Ennis’ injuries were more consistent with what took place in the video of the fight with another woman than if she had been punched 10 times in the face by a professional football player.
Klippen also took into account the two calls made to 9-1-1 in which Ennis sounded frantic in the first one and then far more composed and calm in another call made nine minutes later. She noted the testimony of the man who stopped to allow Ennis to use his phone on the morning of Feb. 11. The man testified that Ennis seemed calm and composed when stopping him and did not say anything about her boyfriend hitting her.
On the subject of Ennis’ credibility as it relates to changing her story, Klippen said Ennis established money as a motive to lie because she’s a 28-year old woman who didn’t have to work, lived in a large house, drove a Corvette and generally lived an upper-middle-class life. Klippen said there was a “ring of truth” to her testimony that she was worried about losing that lifestyle after Foster broke up with her, which would give her reason to try to get money from him.
Additionally, Klippen said there was no evidence that Foster previously abused Ennis, that Ennis feared Foster physically harming her or that he offered to compensate her in exchange for changing her original story.
Finally, Klippen pointed to Ennis’ admission that she falsely accused a boyfriend of domestic violence in 2011 as well as her testimony that she stole from Foster after the Feb. 11 breakup. Klippen said neither story from Ennis was “particularly credible” but that Ennis testified “at considerable peril to herself” and against the advice of her attorney.
Neither Bentley nor Smith commented after Wednesday’s proceedings. The Santa Clara County District Attorney’s Office did release a statement regarding the Foster case on Wednesday evening.
“We are disappointed in the judge’s decision,” the statement said. “We are disappointed because the evidence demonstrated that Mr. Foster seriously hurt his girlfriend. Some have wondered why we still think Mr. Foster hurt his girlfriend when she said that he didn’t. Recantation is common among domestic violence victims. Some are scared, some feel guilty, some are coerced, some need money. Whatever the cause, we move forward on cases when victims falsely recant because we know that if we don’t more victims will be hurt. Our commitment to domestic violence survivors is unwavering.”
The NFL, which could still punish Foster based on the gun charge and a misdemeanor marijuana possession arrest in January in Alabama, said it will continue to monitor all developments related to Foster’s legal situation and that those things remain under review.