The judge who heard testimony Thursday in Reuben Foster's domestic violence case has until Wednesday to decide whether to move it to trial. The delay also gives prosecutors and Foster's attorney time to come to an agreement.
"It's going to give both sides the opportunity to discuss the case, and it's possible they could reach some type of resolution," attorney Steven Clark said Friday.
Clark is not involved in the case. He is a former prosecutor and current criminal defense attorney who also serves as a legal analyst in high-profile cases such as Foster's.
He attended Thursday's preliminary hearing and concluded it will be difficult to convict Foster, at least on the felony domestic violence charge he is facing.
"It's not a trial," Clark said. "It was a preview for what's to come, and I just don't see this case being one in which the DA could convince a jury beyond a reasonable doubt as to the guilt of Mr. Foster as to the domestic violence count."
"It may not have been good for him from a public relations point of view," Clark continued. "But certainly from a criminal conduct point of view it was a very good day for Mr. Foster."
By far the most explosive testimony on Thursday came from Foster's one-time girlfriend, Elissa Ennis, who recanted her original accusation that the 49ers linebacker hit her and dragged her out of his house. At one point Ennis, 28, was asked whether Foster put his hands on her.
"No, sir. Not once," she said.
She went further than that, saying that she had once falsely accused another boyfriend of domestic violence because, like Foster, the man wanted to end their relationship. She also said she stole money and jewelry from Foster.
Ennis last month signaled what she would say when, through her attorney, she issued a statement saying she had fabricated her initial domestic violence claim because she wanted to ruin his career.
Clark said he was not surprised the district attorney's office called on Ennis to testify. After all, the case is based on serious allegations and prosecutors had to test which of her ever-changing stories would hold up.
"The onus is on them," Clark said. "And they'd rather learn (what Ennis would say) now than at trial. I'm not surprised they called her. I think they wanted to see what would happen. And frankly, they wanted to put her through that. If it truly was made up, then they were pretty tough on her and obviously the defense was pretty tough on her. I see it as the right thing to do."
Clark said it was unusual that Judge Nona Klippen delayed her ruling for a week. In "99 out of 100" cases, he said, a judge makes an instantaneous decision on whether to move forward with a trial. The delay, he said, underscores the convoluted and contradictory nature of the case and it gives the two sides time to reach a resolution.
"I don't know that I've ever seen anything quite like what I saw in that courtroom in terms of just the complete meltdown and the admission of lying," Clark said.
Clark noted that the standard for moving ahead with a trial – probable cause -- is lower than the beyond-a-reasonable-doubt benchmark for finding someone guilty in a criminal case. Still, he said if Foster's case hinges on Ennis' initial accusations, it will be difficult to get a conviction.
"She came off very credibly as a liar," he said.