Elissa Ennis, the ex-girlfriend of Reuben Foster, plans to testify Thursday that the 49ers linebacker did not hit her on Feb. 11 and that she initially lied to police, her attorney confirmed Tuesday.
Ennis has since said, through attorney Stephanie Rickard, that the injuries she suffered, including a swollen lip and a ruptured eardrum, came from a prior fight with a woman. A video of Ennis scuffling with a woman has been given to the Santa Clara County District Attorney's Office for review.
A preliminary hearing in Foster's case has been set for Thursday, at which point deputy district attorneys will have to decide whether to move forward with all charges if Ennis is, in essence, working against them.
"The burden is on the people (district attorney's office) to show that Mr. Foster did this beyond a reasonable doubt," legal analyst Steven Clark said last week. "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 ...?'"
Clark said Ennis would be putting herself at risk of prosecution by admitting she fabricated her initial story but that he didn't think the district attorney's office would file charges against her.
Last week, Foster, 24, 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.
The question now becomes whether prosecutors press forward with the domestic violence charge, the one on which Foster's future with the 49ers hinges. Both general manager John Lynch and coach Kyle Shanahan have said that if Foster struck Ennis, 28, he would be quickly dismissed from the team.
On Feb. 11, Ennis told police he not only hit her 10 times with a closed fist, he dragged her down some stairs by her hair and threw her out of his Los Gatos home three times. She claimed he also smashed two cell phones — which Foster acknowledged in the police report — and during a previous argument threw her dog across a room.
Ennis is believed to have recanted that story to authorities just a few days after the initial incident. Still, the district attorney ultimately filed felony charges against Foster, strongly suggesting that prosecutors believe her initial story, not the one about a road-rage fight with another woman. Through her attorney, Ennis last month said she made up the story about Foster hitting her because she wanted to "trash his career."
Even without Ennis, 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.
Clark said that if the domestic violence charges are dismissed, prosecutors still could pursue the gun charges — a loaded Sig Sauer short-barreled rifle was found on the floor of the bathroom — but the judge might reduce it to a misdemeanor.
"It would likely involve volunteer work and destroying the weapon," he said.