The Criminal Liability of Lisa Nowak

Spec./Capt. Lisa Nowak faces serious legal jeopardy in Florida.  After reading the arrest/charging affidavits, I have to wonder at some of the commentary out there. Jeffrey Fieger appeared on Good Morning America Friday and told the audience that, "at most, she might be guilty of an assault and battery."  Here in Florida, those charges are both misdemeanors, punishable by a maximum of 14 months in the county jail (12 for the battery, 2 for the assault.)

Counselor Fieger was grossly mistaken.

Based on the contents of the bag that was recovered from the trash can (after a policeman saw Capt. Nowak dump it in there), the [utterly credible] victim's statement, Capt. Nowak's post-Miranda statement, and the statutes here in Florida, these are the charges she could be convicted of in a heartbeat, and their concomitant maximum prison penalties in Florida:
Florida Statutes 787.02  False imprisonment (5 years)
Florida Statutes 790.07  Persons engaged in criminal offense, having weapons (5 years)
Florida Statutes 812.133  Carjacking, armed (Life)
Florida Statutes 787.01  Kidnapping, armed (Life)
Florida Statutes 810.02  Burglary, with assault/battery, armed (Life)
Mr. Fieger put a lot of emphasis on Capt. Nowak's claim that she had only brought the weapons (steel mallet, knife, real-looking BB pistol) in order to "scare" her victim so she'd talk to her.  Uhhhhhh, this is exactly what constitutes a false imprisonment or kidnapping, the unlawful confinement of a victim (by well-founded fear, in this case--assuming Capt. Nowak never would have actually used the tubing she had bought to tie up her victim). 

Mr. Fieger had a valid point, in that the attempted first degree murder charge that Capt. Nowak is facing is probably excessive.  But so what?  This parade of potential life felonies doesn't need any enhancement..."Hey, Lisa, good news!  The judge threw out the attempted murder charge!  Now we're only sunk on 2 or 3 other life felonies!"

Did I mention that we don't have parole here in Florida?

Apart from her extraordinary life story, Capt. Nowak has horrific equities surrounding her case:  long-term premeditation;  stunningly precise planning and execution of her plan;  focus on a completely innocent victim;  carrying out her plan all the way, even to the point of pepper-spraying the victim when she unwisely rolled her car window down speak to the "tearful" Capt. Nowak;  making an enormous physical effort to complete the plan;  a written list of the items needed to complete the plan (too bad she didn't add one last item to the list:  "When other items are purchased, BURN THIS LIST!");  and a great effort to conceal her identity. 

I've made it a point to ask many Florida prosecutors one question over the years:  "What portion of our cases involve (1) a defendant who is genuinely guilty, (2) doing/attempting to do something genuinely harmful, (3) to someone who is genuinely innocent?"  The answer is always, "Oh, about 20-25%."  Unfortunately, Capt. Nowak falls into this category...and the evidence against her is overwhelming.

Fortunately for her, her life story may just pull her future out of the fire. I predict that she will eventually plead guilty to the 2 lesser felonies (it will keep her scoresheet points down), or perhaps a stipulated reduced charge of aggravated battery (15-year max), with her sentence to be begun in a lockdown mental facility.  Then a lengthy probation--4-8 years.

Her life will be ruined in the short term, but unlike so many of my defendants, she she will have a chance to rebuild it outside of the Florida State Prison system.

Philip Averbuck is a criminal defense attorney who practices in Polk County, Florida.
Spec./Capt. Lisa Nowak faces serious legal jeopardy in Florida.  After reading the arrest/charging affidavits, I have to wonder at some of the commentary out there. Jeffrey Fieger appeared on Good Morning America Friday and told the audience that, "at most, she might be guilty of an assault and battery."  Here in Florida, those charges are both misdemeanors, punishable by a maximum of 14 months in the county jail (12 for the battery, 2 for the assault.)

Counselor Fieger was grossly mistaken.

Based on the contents of the bag that was recovered from the trash can (after a policeman saw Capt. Nowak dump it in there), the [utterly credible] victim's statement, Capt. Nowak's post-Miranda statement, and the statutes here in Florida, these are the charges she could be convicted of in a heartbeat, and their concomitant maximum prison penalties in Florida:
Florida Statutes 787.02  False imprisonment (5 years)
Florida Statutes 790.07  Persons engaged in criminal offense, having weapons (5 years)
Florida Statutes 812.133  Carjacking, armed (Life)
Florida Statutes 787.01  Kidnapping, armed (Life)
Florida Statutes 810.02  Burglary, with assault/battery, armed (Life)
Mr. Fieger put a lot of emphasis on Capt. Nowak's claim that she had only brought the weapons (steel mallet, knife, real-looking BB pistol) in order to "scare" her victim so she'd talk to her.  Uhhhhhh, this is exactly what constitutes a false imprisonment or kidnapping, the unlawful confinement of a victim (by well-founded fear, in this case--assuming Capt. Nowak never would have actually used the tubing she had bought to tie up her victim). 

Mr. Fieger had a valid point, in that the attempted first degree murder charge that Capt. Nowak is facing is probably excessive.  But so what?  This parade of potential life felonies doesn't need any enhancement..."Hey, Lisa, good news!  The judge threw out the attempted murder charge!  Now we're only sunk on 2 or 3 other life felonies!"

Did I mention that we don't have parole here in Florida?

Apart from her extraordinary life story, Capt. Nowak has horrific equities surrounding her case:  long-term premeditation;  stunningly precise planning and execution of her plan;  focus on a completely innocent victim;  carrying out her plan all the way, even to the point of pepper-spraying the victim when she unwisely rolled her car window down speak to the "tearful" Capt. Nowak;  making an enormous physical effort to complete the plan;  a written list of the items needed to complete the plan (too bad she didn't add one last item to the list:  "When other items are purchased, BURN THIS LIST!");  and a great effort to conceal her identity. 

I've made it a point to ask many Florida prosecutors one question over the years:  "What portion of our cases involve (1) a defendant who is genuinely guilty, (2) doing/attempting to do something genuinely harmful, (3) to someone who is genuinely innocent?"  The answer is always, "Oh, about 20-25%."  Unfortunately, Capt. Nowak falls into this category...and the evidence against her is overwhelming.

Fortunately for her, her life story may just pull her future out of the fire. I predict that she will eventually plead guilty to the 2 lesser felonies (it will keep her scoresheet points down), or perhaps a stipulated reduced charge of aggravated battery (15-year max), with her sentence to be begun in a lockdown mental facility.  Then a lengthy probation--4-8 years.

Her life will be ruined in the short term, but unlike so many of my defendants, she she will have a chance to rebuild it outside of the Florida State Prison system.

Philip Averbuck is a criminal defense attorney who practices in Polk County, Florida.