The Criminal Liability of Lisa Nowak

The Criminal Liability of Lisa Nowak

By Philip Averbuck

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.
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at February 10, 2007 - 03:32:44 PM EST