SAN JOSE — Thursday was the most pivotal day in the Reuben Foster saga to date. After about three hours of testimony, Judge Nona L. Klippen scheduled another hearing for May 23 at 3:30 p.m. to give herself additional time to review evidence.
This case has swung drastically, with Foster’s ex-girlfriend Elissa Ennis testifying Thursday that she fabricated domestic violence claims against Foster, while adding she struck Foster with a hanger after he allegedly broke up with her.
Foster’s legal saga has loomed over the 49ers and their prized second-year linebacker since his arrest Feb. 11. They have not released him, but both general manager John Lynch and head coach Kyle Shanahan have made it clear that Foster will be cut if the domestic violence charges are proven true.
On Apr. 12, the Santa Clara District Attorney’s Office charged him with three felonies, including 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. If convicted, Foster could face as many as 11 years in prison, according to the DA’s original report.
That is what made Thursday’s preliminary hearing so pivotal. Ultimately, there was no decision, but the pendulum seems to have swung in Foster’s favor after Ennis provided her emotional testimony.
Ennis, wearing a black and white dress, testified that she fabricated essentially every detail of that Feb. 11 morning incident. Contrary to her initial report, she claimed that Foster did not punch her in the head eight to 10 times, that he did not threaten to kill her, that he did not throw her down the stairs, that he did not break her cell phone, that he did not throw her dog (which she later said was Foster’s), and that he was not the perpetrator of any of her injuries, which include a bruised and ruptured ear drum, swollen lip, and scraped knee. She exaggerated that she and Foster dated for five years, not approximately one. She lied to police, her mother, and brother about the same details.
Was she telling the truth Thursday?
Klippen could not be sure.
After Ennis recounted that Feb. 11. morning that led to Foster’s arrest, she was asked whether Foster ever put his hands on her.
“Not once,” Ennis said.
So, why would she lie so extensively about an alleged assault?
“It was all about the money,” Ennis said. “I was pissed. I wanted to end him.”
Two important, formerly unknown details were brought to light in Ennis’ testimony. The first: she claimed to have stolen more than $8,000 and two Rolex watches, which are stored in a bank safe in Louisiana, from Foster. Ennis has not given the jewelry back yet.
Secondly, Ennis said she falsely accused another ex-boyfriend of domestic violence in 2011 after he broke up with her, which is the same thing she testified Thursday.
Prosecutor Kevin Smith asked Ennis to recount the Feb. 11 incident. She gave brutally honest responses throughout her testimony.
During cross examination, Josh Bentley, Foster’s attorney, asked Ennis more pointed questions, which elicited a stream of emotions. Judge Klippen had to implement a second recess after Ennis broke down and struggled to get words out.
“I am sorry,” Ennis said. “I really am. I apologize to everybody.”
Smith called on four witnesses during Thursday’s ceremony. The first was Eugenio Pirir, whom Ennis flagged down outside of Foster’s Los Gatos home their argument Feb. 11. The next was Ennis. The third was Los Gatos police detective Jason Wiens, who spoke with Ennis on the phone on Feb. 13, when Ennis told him that another woman had caused her injuries, not Foster. The fourth witness was Los Gatos police officer Katrina Freeman, who arrived at Foster’s house on Feb. 11 after Ennis had called 911.
Ennis’ testimony was by far the longest. She gave a full account of the alleged series of incidents, including many details that were previously unknown.
On the evening of Feb. 10, Ennis drove to the Oakland area in Foster’s Corvette to see a hairstylist. She drove back to San Francisco to see Pier 39, she said. A car with two women— around her age, and either Spanish or Filipino, she said— cut in front of her. She sped up and pulled in front of their car, prompting them to pull over on the side of the road. Both parties exited the car. Ennis fought one of the two women for about 15 minutes before bystanders broke up the fight, according to her testimony.
All of this contradicts the story Ennis originally told police— that she had a couple drinks and got in a fight with a woman outside of a bar.
A video of the fight was taken and later posted on Instagram before it was eventually taken down. The 22-second clip was played for Wiens to review during his testimony on Thursday. Bentley said the video, which was not showed to the rest of the court, showed evidence that the scratches on Ennis’ neck and left knee were suffered during the fight. Wiens, who said he did not follow up on the Feb. 10 fight with another woman, affirmed he was skeptical of Ennis’ story.
After the fight on Feb. 10, Ennis hopped in her car and took off to Foster’s Los Gatos home. After she returned, she said she sensed Foster was going to end their relationship after he asked, ‘What happened to your face?”
The next morning, Ennis woke up around 6 a.m. and started to prepare breakfast. Foster awoke about 30 minutes later, approached Ennis, and broke up with her. Ennis said she thinks Foster broke up with her because he was “embarrassed of my actions.”
Then came the chaos. Ennis yelled at Foster and chased him out of the house. He ran back in and locked the front door. Ennis returned through a backdoor and saw Foster throwing her clothes down the stairs, telling her to ‘get out.’
“I’ll f*** your s*** up,” Ennis said to Foster. “You won’t have no job tomorrow.”
Ennis went to the backyard to call her mom. She dialed 911, froze, and claimed she had dialed a wrong number. She called again, told the police she had been assaulted during a muffled phone call, which was played during Thursday’s hearing, before hanging up after about 20 seconds. She said she ‘politely’ tossed her phone to Foster before making her way to the driveway to ‘contemplate’ what she should do next.
“I wanted him to go down,” Ennis said. “I was pissed.”
That is when she flagged down the oncoming Pirir, who was making his morning commute to his construction job. According to Pirir, she approached him calmly and asked to use his phone. He agreed. She walked about five-to-six feet from his car and spoke to police for about 15-to-20 minutes.
“I wouldn’t say she was desperate, but she needed to make the phone call,” Pirir said.
Pirir said he did not notice any visible injuries on Ennis.
Police arrived shortly after the call. Freeman, who testified in Thursday’s courtroom as a witness, was one of several officers to arrive at the scene. Her most vivid recollection is seeing a heap of Ennis’ clothes scattered in the foyer. She said she saw Foster’s dog, and that it was not injured, contrary to Ennis’ initial report.
Freeman spoke with both Ennis, whom Freeman described as ‘quiet, sad, and overcome with emotions at times,’ in the front yard and Foster, whom Freeman described as ‘calm,’ in the side yard.
In Bentley’s cross-examination with Freeman, he implied that Ennis’ scratches were not consistent with the thought of an NFL linebacker punching someone eight-to-10 times, as her original story claimed. Bentley tried to convince Freeman, but she took a hard stance.
“People punch differently,” she said.
After Freeman surveyed the house, she escorted Ennis to the local Good Samaritan Hospital, where she was treated for an injured ear drum and bruises and scrapes on her left knee and neck. Doctors did not perform X-rays.
During that afternoon, Foster was booked into Santa Clara County Main Jail. He posted bail for $75,000. As noted earlier, Ennis claimed to have stolen more than $8,000 and jewelry from Foster during this time. Ennis and Foster have had little contact since the Feb. 11 incident.
Seemingly lost in all of the chaos is the gun component, which Smith and Bentley argued at length. Police found a SIG Sauer Rifle fully loaded on the bathroom floor on Feb. 11. Another loaded firearm was located under Foster’s mattress in an upstairs bedroom.
Bentley argued that both weapons were bought legally in Alabama. Smith referred to Ennis’ allegation that Foster said if she called the police he would have someone kill her. The gun charge could ultimately be dismissed to a misdemeanor.
After Freeman’s testimony, Judge Klippen assembled both Smith and Bentley for closing arguments, which exposed the peculiarity of the case: they based their arguments on the same point.
Bentley argued that Ennis is too unreliable to believe original accusations that Foster assaulted her. Smith also argued that Ennis is unreliable, as seen in the inconsistencies within her stories, meaning a final decision should not be made Thursday.
No decision was made. Judge Klippen will decide May 23 whether the charges should be dropped or the case will go to a jury trial.
Thursday’s hearing likely helped Foster, but that does not mean an end to this case is in sight, given all of the contradictions from Ennis’ original accusations with her testimony Thursday.
Brad Almquist is KNBR.com’s 49ers beat writer. Follow him on Twitter @bradalmquist13.