The victim in the domestic violence case involving 49ers linebacker Reuben Foster has hired an attorney, an uncommon move and one that legal experts suspect signals she does not plan to cooperate with the prosecution.
Stephanie Rickard, who is based in San Jose, confirmed Friday that she has been hired by Foster's girlfriend but declined to say why she has been retained.
Though rare, victims in domestic violence cases bring on attorneys for several reasons, including wanting someone to give them guidance or help them understand what is happening as the case proceeds. Most common is that they want to explore their right not to testify or do not intend to cooperate with the prosecution.
Attorney Michael Cardoza, who has served as both prosecutor and defense attorney in domestic violent cases, noted the district attorney's office does not represent the victim in the case, it represents the state. In that way it benefits the accuser to know her rights.
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"Remember, the district attorney's job in this case is to prosecute," Cardoza said. "They're not the friends of the victim. They will do what they can to get her to testify. So right now, if she's not going to testify or she has an inkling of that – and by hiring a lawyer, it's some indication she may not want to – she should do it with full knowledge. You sit down with a lawyer who gives her all the options and says, 'You decide what you want to do.' And then she decides."
Earlier this month, a judge told Foster not to contact his one-time girlfriend after the Santa Clara County District Attorney's office filed three felonies against him in relation to a February incident at Foster's Los Gatos home.
Foster, 24, 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 possessing an assault weapon. According to local prosecutors, Foster's 28-year-old girlfriend flagged down a passing car after he threw her out of his house. She was taken to an area hospital with bruises and a ruptured eardrum.
In two previous domestic violence-related cases involving 49ers players, the charges either were reduced or dropped altogether after the alleged victim recanted or refused to cooperate with prosecutors.
In May 2015, fullback Bruce Miller was arrested in Santa Clara on suspicion of spousal battery, a misdemeanor. The victim originally told police Miller pushed her out of a vehicle and smashed her cellphone. Later, she said there had been no physical altercation.
The charges were reduced to vandalism and Miller ultimately pleaded no contest to misdemeanor disturbing the peace.
A year later, also in Santa Clara, cornerback Tramaine Brock was charged with felony domestic violence following an incident that, according to police, left her with visible injuries. She hired an attorney, made it clear that she did not want to cooperate and the charges were dropped.
In Foster's situation, deputy district attorney Kevin Smith has said that the prosecution would move forward with the case even if the victim does not testify.
Nancy Lemon, who teaches domestic violence law at the UC Berkeley School of Law, said the likelihood of a district attorney continuing with a case in which the victim does not testify varies from county to county.
"It also depends, of course, on how much other evidence they have," she said. "If there is really no other evidence besides the victim's statement at the time of the arrest or right afterward, then it's much harder to go forward. However, if they do have a lot of other evidence like photos – if the police took a lot of photos – that kind of thing can enable them to go forward without the victim's testimony."
Lemon said other evidence, such as audio from a 911 call and the medical report from the hospital, also can be used by the prosecution. The Santa Clara County district attorney's office appears to have that, including perhaps testimony from the driver that Foster's girlfriend flagged down.
Cardoza was more skeptical that prosecutors could win on the most serious charge, domestic violence, without the victim.
"There's going to be a lot of legal maneuvering," he said. "If not saying they couldn't (move forward). It will be very difficult to do it."
He noted that the concept of justice often is different for the prosecutor and the victim in domestic violence cases.
"Is convicting him justice for her if she would rather have something else, i.e. a monetary settlement, which she knows she may not get if he gets convicted?" he said. "DAs always define justice as, 'Put him in a state prison and that's justice.' They may be right at a certain level, but she is, after all, the one who suffered these injuries."