Reuben Foster's girlfriend initially lied to police and the 49ers linebacker did not injure her during a February incident at his home in Los Gatos, the girlfriend's attorney said Wednesday in a statement to The Sacramento Bee.
The attorney, Stephanie Rickard, said that the injuries, including a ruptured eardrum, that sent the 28-year-old woman to the hospital were suffered in a fight with another woman and there is a video of that confrontation.
“(Foster) did not strike her, injure her or threaten her,” said Rickard. She said Foster tried to end the relationship with her after learning of the fight.
“She was extremely upset and told him if he broke up with her she would ‘trash his career,’” Rickard said.
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She said the girlfriend, whom Rickard identified as Elissa Ennis, has told local prosecutors that she wanted to recant, but the district attorney's office filed charges anyway.
Those charges include domestic violence with an allegation that he inflicted great bodily injury, forcefully attempted to prevent a victim from reporting a crime and possessed an assault weapon – all felonies. The charge of preventing a victim from reporting a crime often is applied when someone removes or damages someone else's cellphone to prevent them from calling police.
According to the Santa Clara County District Attorney's Office, Ennis flagged down a passing car in Los Gatos after she had been dragged by her hair by Foster, punched in the head eight to 10 times by him and was physically thrown from the house.
The district attorney's office has suspected that Ennis would not cooperate and has said that the case would continue even without her help.
Legal experts said that domestic violence cases in which the victim does not cooperate are more difficult to win but that prosecutors can move forward if there is other good evidence.
In Foster's situation, that evidence may include the 911 call on the day of the incident, the medical report from the hospital and any photographs that police took. The district attorney's office also could call upon the motorist who helped the girlfriend as a witness.
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 the victim with visible injuries. She hired an attorney, made it clear that she did not want to cooperate and the charges were dropped.
Alleged victims in domestic violence cases rarely hire their own attorneys, but they did in the cases involving Brock and Foster. Michael Cardoza, who has served as both prosecutor and defense attorney in such cases, noted that the concept of justice is different when it comes to the prosecutor and victim.
"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."
After charges were filed, the 49ers and Foster agreed that the linebacker will stay away from the team facility while the case is ongoing. As of now, jury selection is scheduled to begin in late July, although that date could be delayed.
Even if he is found not guilty, the league can suspend Foster for violating its personal conduct policy. He also is facing a misdemeanor marijuana charge in Alabama that could lead to a suspension.