NEW PORT RICHEY — One night 10 years ago, J.J. Daiak stood in his dark living room with a hurricane howling outside and a .357-caliber magnum in his hand. Hearing voices and thinking looters were about to break in, he fired two shots, hitting a sofa and a wall.
But the voices outside his front door weren't looters. They were Pasco County deputies. Daiak was arrested and charged with aggravated assault on a law enforcement officer. He got 20 years.
After relentlessly campaigning from prison, Daiak, 62, was granted a new trial last month. It could happen as soon as September.
What's different now: His first trial, in 2006, was before Florida's notorious "stand your ground" law fundamentally altered how the public views self-defense cases. It was before we became captivated — and polarized — by people like George Zimmerman, Trayvon Martin and Marissa Alexander, a Jacksonville woman sentenced to 20 years for firing her gun during a fight with her estranged husband.
"The climate is very much in favor of people defending themselves," Tampa defense attorney John Fitzgibbons said.
Daiak was once an economist and a lawyer. For a time he ran a craft and frame shop in downtown New Port Richey. Before Labor Day 2004, he'd never been in trouble with the law.
That night, the chaos of Hurricane Frances had him on edge. At his home in Holiday, he took his revolver out of his safe and set it on the bed. He had argued with his girlfriend, Donna Vaillancourt, earlier in the day, and someone called 911. She told deputies who showed up at the house that everything was fine, but when she went to get Daiak, she saw him with the gun.
She backed out of the room and told authorities he had it to his head.
Later, the sounds of men's voices woke him up. His heart raced. He couldn't hear them clearly over the wind and rain. The deputies pounded the door so hard it rattled the frame. He fired because he didn't know it was the law on his lawn.
Had he known, he testified in the trial, "I would have gone outside and talked to them; say, 'Hi, guys, what's up?' "
He was represented in the trial by the attorney who'd handled Vaillancourt's divorce.
"The price was right," Daiak's mother, Fay, said later.
After he lost the case and a subsequent appeal, he hired new lawyers. He filed a motion for ineffective assistance of counsel, and was granted a hearing and ultimately a new trial. There's a possibility he will be released on bail in the meantime.
"He's worked so hard to get to this point," Vaillancourt said after a hearing Thursday. "He wants to show that he is not guilty of this crime. He wants to clear his name."
Granted by Circuit Court Judge William Webb, the ruling is based on key mistakes by Daiak's attorney, including arguing the wrong case law.
"What he's going to have to prove is the justifiable use of force," Stetson law professor Susan Rozelle said. "The defendant is entitled to use force if he reasonably believed that his home was being invaded by burglars."
Prosecutors, meanwhile, will try to convict him on the same charge that won over the first jury, and net the same sentence.
"The court's ruling regarding the ineffective assistance doesn't change the theory of the state's case," Assistant State Attorney Eva Vergos said Thursday. "It doesn't change anything regarding the facts or the evidence."
But it is a changed climate.
"It seems that there is in Florida the entire 'stand your ground' movement that is very favorable to people defending themselves," Fitzgibbons said, "and that's a significant change in the last 20 years, in my opinion. They have rights to shoot under certain circumstances and no duty to retreat."
Contact Jon Silman at [email protected] or (727) 869-6229.