Dec. 5, 2008 -- An attorney for Lisa Nowak, the former NASA astronaut awaiting trial on kidnapping and other charges, is cheering today's partial court victory for his client.
The three-person 5th Circuit Court of Appeals in Florida upheld a lower court ruling barring use of a taped interrogation of Nowak by police at her trial.
It is a mixed victory, however, because the court also ruled that evidence found in Nowak's car after her arrest can be introduced by the prosecution in court.
Even so, Don Lykkebak, an attorney for Nowak, suggested that she sees the decision as a way to move forward with her case.
"We are satisfied that appellate court affirmed the trial court ruling that Lisa Nowak did not waive her constitutional rights," Lykkebak said. "The police used coercive tactics and her interview was not voluntary. Capt. Nowak looks forward to returning to the Circuit Court and defending all charges."
Nowak's criminal case has been on hold since November 2007, when Judge Marc Lubet ruled that Orlando Police Det. Chris Becton had not properly read Nowak her Miranda rights before the interrogation and had tricked her into giving officers permission to search her car.
Nowak is charged with attempted kidnapping, battery and attempted burglary with assault.
Investigators say the married mother of three drove nearly 1,000 miles from Houston to Orlando in February 2007 to confront Air Force Capt. Colleen Shipman. Nowak believed Shipman was a rival in a love triangle that included then-astronaut Bill Oefelein.
Shipman told police that Nowak had attacked her with pepper spray in the parking lot of the Orlando Airport after she returned from visiting Oefelein in Houston.
The question now is this: Without the interrogation evidence, does the Orange County district attorney have enough to proceed with her trial?
Clearly prosecutors felt it was critical to their case, said law professor Geoffrey Corn of the South Texas College of Law.
"It is unusual for the government to appeal a suppression ruling in midstream," he said. "The prosecutors clearly consider this significant to their case."
During questioning, Nowak's statements to Becton revealed her affair with Oefelein and also the breakup of her 19-year marriage.
Nowak: My husband is the only person who broke my heart. Becton: I'll start with your husband. Didn't you say he broke your heart? Nowak: Gradually Becton: [inaudible] departure? Nowak: Over the years I guess, it happened over time.
She didn't go into much detail about her relationship with Oefelein. During questioning, she was vague about describing the relationship as sexual.
Becton: You did have sex with another man. Your husband was [Inaudible] am I correct? OK maybe not. Nowak: Well it's not pertinent to what (interrupted)...
He continued with the line of questioning.
Becton: So did you cheat on your husband? Nowak: On the context of? Becton: Physically cheating? Nowak: Right.
Nowak told Becton after repeated questioning that she never intended to hurt Shipman and says she simply wanted to talk.
Becton: You didn't point the gun at her, but you did bring the gun with you and you were afraid she wasn't gonna talk to you. So if she didn't talk to you were you gonna kill her? Nowak: No. [The next line is blacked out.] I just wanted her to talk to me.
The evidence seized from Nowak's car that can now be shown to the jury includes maps to Shipman's house and steamy e-mails printed out from Oefelein's computer, which bolstered the police case that Nowak meant to hurt Shipman.
But the questions now may be: Will Nowak's case still go to trial, and are a plea bargain or reduced charges now possible?
Many of her former colleagues at NASA have told ABC News that they would like the case to go away. The prospect of a sensational trial, with cameras in the court and astronauts under oath testifying about love triangles is not the image the space agency wants to project.
Why Nowak, a highly accomplished Navy pilot, astronaut, mother of three and a woman described by colleagues as a good person, allegedly went to such extremes might remain a mystery if she does not go on trial.
Friends said Nowak is a very private person who just wants to get past this mess and move on with her life.
Both Nowak and Oefelein flew their one and only space shuttle missions in 2006. They were fired as astronauts by NASA in 2007 and are back on assignment with the Navy. They could face court martial charges once the civilian case against Nowak is resolved.