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What’s next for Reuben Foster after dramatic preliminary hearing

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Thursday was quite the day in court for San Francisco 49ers linebacker Reuben Foster. His ex-girlfriend had her day in court, formally recanting the statement she made to police when she pressed charges against Foster. However, it went well beyond that in terms of the details she provided. Yesterday, I posted notable links of those in attendance at the hearing. They have the best rundowns of the four witnesses that testified on Thursday.

The judge announced at the end of the day that she will take six days to consider the evidence and on May 23rd, she will announce whether or not Foster will face trial. He faces charges of felony domestic violence, forcefully attempting to prevent a victim from reporting a crime (she alleged in February that he destroyed her cell phone), and illegal weapon possession.

People have asked why the judge didn’t just dismiss the domestic violence charge at the end of yesterday. Just based on what Foster’s accuser said on Thursday, it would not be at all surprising to see some of the charges dismissed. She said Foster never hit her and never destroyed her cell phone, instead saying she threw her cell phone at Foster. If all that is true, it would suggest Foster did not commit domestic violence and did not attempt to prevent her from reporting a crime. It does not remove the gun charge, but the more serious charges would seemingly be off the table.

Arguably her most notable admission was that she brought a domestic violence charge against a former boyfriend in 2011, and spent some amount of time in jail when it was decided to be a false statement. These are two distinctly separate situations, but I imagine that will factor into the judge’s decision-making process.

Additionally, the detective who investigated the case seemed unwilling to openly say her injuries looked like something that could result from Foster punching her eight to ten times. He initially did not want to offer an opinion on the severity of the injuries. He eventually said, “People punch differently. I can’t make assumptions.” While that is true, that is not exactly the most forceful statement against Foster.

It is going to come down to what the judge decides is worth believing, and what she thinks is the actual lie. According to the prosecution, she had used different versions of events when she initially recanted, and some of the details had subsequently changed. According to the reporters on hand, the closing argument saw the prosecutor essentially say Foster’s ex-girlfriend lied so much the judge should believe her first statement.

This is all a complicated situation, and I am not surprised the judge did not want to make an immediate decision. The standard for going to trial (probable cause) is decidedly lower than the standard for conviction (beyond a reasonable doubt). For a criminal trial, a defense attorney merely has to introduce some doubt into a single juror’s mind. From an outsider’s perspective, the defense would seem to have plenty of evidence to raise doubt in a jury’s mind.

On the other hand, probable cause requires simply a reasonable belief based on objective facts that a crime has been committed. If everything the accuser said is true, it is hard to see any reasonable belief. The problem is what does one believe at this point. The judge could decide the accuser’s extensive statements show this is a legitimate recanting of the statement. On the other hand, given the complications of domestic violence cases, she might decide she’s sufficiently unsure that it should go to trial.

If the judge was certain one way or another, we would have had a decision. Instead, she is going to spend the next week reviewing the evidence and deciding if Reuben Foster should stand trial. My gut says the charges of felony domestic violence charge and forcefully attempting to prevent a victim from reporting a crime will be dismissed, but I don’t think anybody can say that with absolute certainty.

And so, we wait for 3:30 p.m. on May 23rd, when the proceedings reconvene, and an answer is provided.