New Canaan man wins on appeal: Conviction reversed, acquitted of harassment
Published 3:56 pm, Wednesday, March 4, 2015
Rather than spend 15 months in prison after being convicted of violating a judge's protective order and harassing his nanny, a New Canaan man has been given a reprieve by the state Appellate Court, which reversed his protective-order conviction and acquitted him on the harassment charge.
The decision comes out of an appeal filed on behalf of Michael Nowacki, 62, a former television ad executive who represented himself during a two-week trial at state Superior Court in Norwalk in early 2012 that found him guilty.
In 2010, Nowacki was arrested by New Canaan police and charged with violating the order after sending an email to his ex-wife. He was also charged with sending the nanny he employed an email after she complained to police and they told him not to contact her.
At the 2012 trial, Nowacki admitted sending the email to his wife, but he said that it was a mistake. He said he meant to send the email to Susan Schultz -- a woman with a similarly spelled last name and the same initials as Nowacki's wife. When his wife's name appeared next to the other woman's name on the drop-down menu of his email server, Nowacki said, he inadvertently sent the letter to her.
As for the nanny, Nowacki said the young woman was working for him at the time, and he produced a contract between the two. He insisted he had been emailing her about her work and had no intention to harass the young woman.
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During a long and bizarre trial, Nowacki conducted a full-court press.
With no trial experience, he put himself on the stand for five hours, asking himself questions as his attorney and then answering them as the defendant.
During part of the direct examination of himself, Nowacki would stand in the witness box to ask a question and would sit down to give the answer, calling to mind for some the courtroom scene of Woody Allen's movie "Bananas."
At one point, while trying to steer Nowacki into a relevant line of questioning, Judge Bruce Hudock said, "Mr. Nowacki, would you please ask Mr. Nowacki another question."
When the judge wouldn't allow him to bring witnesses to the stand or there were other perceived judicial slights, Nowacki called the judge various names such as "evil" and a "despot." During closing arguments, he referred to Hudock as the "Wizard of Corrupticut."
In a decision released Monday, the Appellate Court said Hudock should have subpoenaed Susan Schultz, and should have allowed Nowacki to call her to the stand. At the time in question, Schultz had been working for a Darien newspaper on some stories involving Nowacki.
"We conclude that the refusal of the trial court to authorize a subpoena for Schultz was an abuse of discretion that deprived (Nowacki) of his right to compulsory process and to present a meaningful defense," the Appellate Court decision said.
The court said the subject matter of Schultz's reporting, when examined with the context of the email, tends to explain why the email might have been intended for Schultz. Her testimony was uniquely valuable to Nowacki because she would have been in a position to corroborate Nowacki's defense, the court said.
Where the harassment charge is concerned, the court said the law does not allow a police officer to impose an ad hoc criminal protective order against a person based on a complaint.
"That (the officer) threatened the defendant with arrest based on a nonexistent order certainly does not support the notion that the defendant's conduct was somehow less than lawful," the court wrote.
Furthermore, because the nanny was still being paid by Nowacki and remained in his employ even after his wife was given full custody of their children, and even though she told him she did not want to hear from him, the court found that his speech in that email was protected.
Justina Moore, who prosecuted the case with Supervising Assistant States Attorney Suzanne Vieux, declined comment on the appellate decision. She said a decision has not yet been made on whether to retry Nowacki for violation of a protective order. The appellate decision could be appealed to the state Supreme Court.
Roy Ward, who filed the appeal on behalf of Nowacki, said the judges made the right decision, which transcribed goes on for 5,000 pages.
"I think the court took a tangled record and were able to make sense of it and at the end see that justice had not been done in this instance, and conducted themselves in the highest tradition of the bar in protecting the rights of an unpopular defendant," Ward said.
Ward said that Nowacki is thrilled, and believes he has the best attorney in the state.