ORLANDO, Fla. – Call it a rookie mistake by a rookie judge.

Just hours after ordering that no more details in the criminal prosecution of former NASA astronaut Lisa Nowak be made public Thursday, Orange Circuit Court Judge Marc Lubet backed down.

A newly sworn judge handling his first major case, Lubet issued a temporary, verbal order Thursday morning to stop the Orange-Osceola State Attorney’s Office from releasing any documents sought under Florida’s open-records laws until a hearing Tuesday. Prosecutors and media representatives were expected to challenge his instructions.

After fielding questions from an Orlando Sentinel reporter Thursday evening, Lubet released a written order canceling the hearing Tuesday and said he won’t stop prosecutors from releasing any additional records, with the exception of psychological evaluations or notices of an insanity defense.

“I further considered my position and decided that everything should be released except the psychological reports,” Lubet said. “The state can send out whatever they want.”

Prosecutors had not seen the order late Thursday.

“We will review the specifics of the order before we decide what, if anything, needs to be argued,” said State Attorney’s Office spokesman Randy Means.

Lubet, speaking at a routine status hearing Thursday morning, told both sides to stop issuing “press releases” because he wanted to limit pre-trial publicity and guarantee both sides a “fair trial.”

“I’m not entering a gag order at this time,” he said. “I’m just trying to keep the media frenzy down to a dull roar.”

Nowak, 43, was arrested Feb. 5 at Orlando International Airport after driving nearly 1,000 miles from Houston to confront a rival for a space-shuttle pilot’s affections. The case has attracted international media attention.

The judge’s actions surprised both court officials and legal observers because neither side had filed motions to seal any documents. At least two media-law experts said Lubet was out of line for pre-emptively offering to seal court records.

“He’s done something which in my experience – 38 years – is unprecedented,” said Jon Kaney Jr., a Daytona Beach, Fla., attorney and general counsel of the First Amendment Foundation in Tallahassee, Fla. “That’s just unheard of.”

Speaking on Thursday evening to the Sentinel, Lubet insisted he was not muzzling the parties when he asked them to stop communicating with the media.

He acknowledged there was no motion before him to restrict the release of evidence to the media by prosecutors and that he did it “on the court’s motion to see where we are on all the pre-trial publicity.” And he vehemently denied he was acting more like a defense attorney than a judge from the bench, saying his concerns and directives were aimed at “both sides.”

“My sole intent is not to restrict freedom of the press but only to ensure Ms. Nowak and the state get a fair trial in the case,” Lubet said. “My undergraduate degree is in journalism, and I totally respect the freedom of the press.”

Lubet had scheduled an 8:30 a.m. hearing Tuesday to consider sealing the records. Attorneys for The Orlando Sentinel were preparing to challenge.

The State Attorney’s Office also had planned to argue against Lubet’s ruling, on the grounds that the State Attorney’s Office has a “legal responsibility” to follow the public-records law and that the court shouldn’t tell it otherwise, Means said.

In most criminal cases, judges have wide latitude to issue gag orders or seal cases, but that is usually done at the request of one side or the other.

Lubet’s actions in court pleased Donald Lykkebak, Nowak’s attorney. “Of course, it would be a great satisfaction if it wasn’t shared with the world,” Lykkebak told Lubet of the investigative material. “Providing the media access to this is an invasion of privacy.”

When told about Lubet’s reversal Thursday night, Lykkebak said, “I’m fine with it.”

Earlier in the day, Robert Rivas, a Tallahassee attorney specializing in media law, said prosecutors should move to disqualify the judge from the case because he had shown bias for one side.

“Sounds like he wishes he was still practicing defense work,” Rivas said. “A judge is not supposed to do that.”

Last month, prosecutors released the first batch of discovery material to the defense. Those records contained copies of lurid e-mails and love notes seized by Orlando police from Nowak after her arrest as well as interviews with her romantic rival and the male astronaut courted by both women.

Lubet is a former defense attorney who for 32 years defended drug dealers, murderers, cops and also estranged spouses in divorce cases. He attended a weeklong seminar for new judges in January and sat on the bench with fellow judges before assuming his duties.

Nowak, a flight engineer who was on a shuttle mission in July, was charged with attempted kidnapping, burglary with assault and misdemeanor battery for an alleged attack on U.S. Air Force Capt. Colleen Shipman. In January, Shipman had begun dating NASA shuttle pilot Bill Oefelein, the male astronaut who had a relationship with Nowak.

Nowak, who was not in court Thursday, was fired by NASA last month and has been assigned to work for the staff of the Chief of Naval Air Training Command in Corpus Christi, Texas. Her trial is tentatively set for late September.


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