Reuben Foster pleaded not guilty to domestic violence and other charges Tuesday, setting up what could be a crucial preliminary hearing for the 49ers linebacker on May 17.
Steven Clark, a former deputy district attorney for Santa Clara County, said it's possible the victim in the case, Elissa Ennis, will testify on that date. Ennis has said through her attorney that she initially lied about Foster hitting her on the morning of Feb. 11 and that the injuries documented by police, including a ruptured eardrum and swollen lip, were suffered in a previous fight with a woman.
A video of Ennis fighting with a woman after an apparent road-rage incident in or near San Francisco has been turned over to prosecutors, who continue to review it.
Both the District Attorney's Office and Foster's attorney, Josh Bentley, declined comment after Tuesday's hearing. Clark, who is not involved with the case, spoke to reporters.
"The big question moving forward at the preliminary hearing: Will the accuser come to court and testify under oath to what she said through her attorney publicly?" said Clark, who is now a defense attorney and legal analyst. "That she told a lie, that her injuries were not a result of what Mr. Foster did but the result of this pre-existing fight the day before. And the DA will have to evaluate if they want to move forward if her story is credible – that Reuben Foster is not the one that committed violence against her."
Clark said Ennis could be putting herself at risk by admitting she fabricated her initial story, but that he didn't think the District Attorney's Office would file charges against her.
If she does testify, the District Attorney's Office could turn to other evidence – her calls to 911, medical records and other witness testimony – in its case against Foster.
"They may seek to impeach what she said on the stand, saying the story she told initially is the more believable of the two stories," Clark said.
He called the road-rage video the "centerpiece" of the case, one that the District Attorney's Office must carefully review to figure out its authenticity and timeline. Last week prosecutors asked for more time to review the video, which was found on social media and the origins of which are fuzzy.
"I think the DA's Office is continuing to investigate that and I don't think they'll stop doing that until they decide how they want to proceed," Clark said.
Clark said that the May 17 date – just nine days from Tuesday's hearing – was significant. It shows that Foster is confident in his case and wants it to proceed quickly, and it puts the onus on prosecutors to decide whether to continue. They will present evidence at the preliminary hearing and a judge will decide whether there is enough to go to trial, which could begin as early as July.
"What you saw today is Reuben Foster saying, 'I'm ready for court and I want my day in court,' " Clark said. "And they will now have to move forward with the preliminary hearing on May 17th or the DA may have to dismiss the case."
"This is a gamble worth taking for Reuben Foster because he’s up against a time situation with the 49ers," he continued. "There’s a lot of pressure to get this case resolved, and I think they are ready for their preliminary hearing."
The 49ers have asked Foster to stay away from the team facility and the ongoing offseason program until his case is resolved or there's a significant development. Both general manager John Lynch and coach Kyle Shanahan have said if Foster is guilty of domestic violence, he will be dismissed from the team.
Foster pleaded not guilty to the three felony charges against him: 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.
Clark said that if the domestic violence charges are dismissed, prosecutors still could pursue the gun charges, but the judge might reduce it to a misdemeanor.
"It would likely involve volunteer work and destroying the weapon," he said.