MOSES LAKE, Grant County — It’s been more than six years since, on a snowy evening on a sleepy dead-end street, Moses Lake police officers pepper-sprayed, tased, hogtied and beat Joseph Zamora so badly he stopped breathing, his heart stopped beating and he had to spend a month in a medically-induced coma in the ICU.
It’s been four years since a Grant County jury, based on that incident, convicted Zamora of two counts of assaulting a police officer.
It’s been two years since, after Zamora appealed the verdict, the Grant County prosecutor asked for the case against him to be dismissed.
And it’s been nine months since the Washington state Supreme Court threw out Zamora’s convictions, ruling that then-Grant County Prosecutor Garth Dano showed racial bias during the trial, resulting in “incurable prejudice.”
Zamora, meanwhile, already served 22 months in prison.
Now, even though the conviction was thrown out, even though Zamora served more than a full sentence, current Grant County Prosecutor Kevin McCrae is recharging Zamora with the same crimes all over again.
What’s more, in 2021 McCrae, then the deputy prosecutor, argued he didn’t have the resources for the case and “that it is no longer in the interests of justice for the State to pursue this case.”
So why is McCrae still pursuing a case he said was not “in the interests of justice?” He’s not saying. He declined to comment as the case is ongoing.
Zamora, who says he suffers from seizures, stress, anxiety and severe mental health problems since the beating, thinks the prosecutor is trying to prove a point.
“They want to make the public feel that what the Moses Lake Police Department did to me — the beating that I took — was just. When it wasn’t,” Zamora, 41, said. “They want to see me convicted of these charges so they have a way out.”
Lawyers watching the case are baffled.
“It is startling to me that a prosecutor, after telling a court a couple years ago that it sought to drop the charges against Mr. Zamora because it was not in the interest of justice, would now turn around and charge him after his conviction was overturned,” said Robert Chang, a law professor and director of the Korematsu Center for Law and Equality at Seattle University, who co-signed an amicus brief on Zamora’s behalf. “I’ve never seen anything like this.”
“It is very unusual for a prosecutor to move forward with a retrial of a low-level felony offense when the defendant has already served his entire sentence,” said Mark Middaugh, a Seattle criminal defense attorney who also co-signed the amicus brief. “It is even more surprising in this case because the Supreme Court opinion reversing Mr. Zamora’s conviction contained such pointed criticism of the conduct of the prosecutor and the police.”
The state Supreme Court declined to comment on the renewed prosecution, but it was withering in its 9-0 ruling last year on how Grant County police and prosecutors handled the case the first time around.
“The prosecutor in this case committed race-based misconduct,” Associate Chief Justice Charles Johnson wrote for the unanimous court, referring to Dano. “The state-sanctioned invocation of racial or ethnic bias in the justice system is unacceptable.”
Zamora, Johnson wrote, almost died at the hands of police even though he “was guilty of nothing more than walking while high on drugs.”
In a concurring opinion, Chief Justice Steven González was darkly ironic in describing the situation.
“The case before us is one where the jury was asked to decide, among other things, whether Joseph Zamora, a United States citizen, assaulted a police officer’s knuckles with the back of his head,” González wrote. “Mr. Zamora deserves relief.”
He has not gotten it.
Around 9:30 p.m. on Feb. 5, 2017, Super Bowl Sunday, Zamora was walking to his niece’s house in Moses Lake. It was a dead-end street, near the outskirts of town; modest ranch houses and manicured lawns, surrounded by scrubby grasslands, junk cars and railroad tracks.
A neighbor called the police to say she thought someone was prowling through cars. (It was later determined there was no car prowler.)
Officer Kevin Hake, of the Moses Lake Police Department, was nearby and responded, driving past Zamora before getting out of his car and signaling to him that he wanted to talk. Zamora walked over and stopped, but didn’t respond when Hake asked him questions.
Hake was not wearing a body camera and his dashboard camera was not working.
This description of their encounter comes from the opinions written by the state Court of Appeals, which ruled mostly for the prosecution, and the state Supreme Court, which ruled for Zamora.
Zamora tried to walk away, but Hake put out his arm to block him and radioed “I’ve got one resisting.”
“Even though Mr. Zamora had done nothing threatening, Officer Hake was scared and felt ‘something was going to happen,'” the state Court of Appeals wrote.
Zamora, Hake said later, was “looking through” him with eyes the “size of silver dollars.” A blood test later found amphetamine, methamphetamine and marijuana in his system.
When Zamora turned away, Hake said he saw his left arm move and feared he had a weapon. (Zamora was later found to be carrying a pocket knife.) He grabbed at Zamora, hooking Zamora’s arms at the elbows and tried to use his leg to sweep Zamora to the ground.
A struggle ensued. It was “intense and unrelenting,” the appeals court wrote. The two exchanged blows.
Hake pulled his gun and placed it against Zamora’s ear and temple, and in his mouth.
“Put your hands behind your back, I’ll [expletive] kill you,” another officer heard Hake say over the radio.
A second officer arrived and tried to help Hake subdue Zamora. Then four more arrived. They handcuffed him, used rope to tie his legs, then tied his feet to his handcuffs, hog-tying him.
They “struck him repeatedly,” pepper sprayed him in the face twice, and used their stun guns three times in five-second bursts to send electrical currents through his body.
Then they called for medical aid.
When EMTs arrived, Zamora was lying face down in the snow, handcuffed, hogtied, with two officers holding him down, the Supreme Court wrote in its opinion. He was not breathing and had no pulse. It took paramedics seven minutes to revive him. They gave him CPR and oxygen and used a defibrillator twice before taking him to the emergency room.
He would remain in the ICU for a month.
None of the responding police officers filed a police report. They were told by an unidentified person at a “higher level” that they would be interviewed instead of filing a report, the appeals court wrote.
All of the officers’ interviews included disclaimers from an old U.S. Supreme Court case, Garrity v. New Jersey, that prevents their statements from being used against them in any criminal prosecution.
A Washington State Patrol officer led the investigation of whether Zamora should be charged. All of the officers involved declined to sit for an interview with him.
Hake suffered a “couple small scratches” around his hand and wrist and some bruising. The second officer to respond “sustained an injury to his hand from punching Zamora in the back of the head multiple times,” the Supreme Court wrote.
Three years before the incident, longtime defense attorney Robert Schiffner said he went to two consecutive Moses Lake police chiefs, in 2013 and 2014, to say he was worried Hake “is going to kill somebody one day.”
Schiffner said he had several cases where he thought Hake used violence “way, way, way quicker” than other officers would.
“I had a very, very legitimate concern,” Schiffner said. “And then he goes out and literally beats Zamora to death. If the paramedics hadn’t arrived, Zamora would be dead.”
He said his concerns were brushed aside.
Hake’s employee evaluations, obtained through a public records request, while generally positive, echo Schiffner’s concerns.
“Make sure to exhaust other avenues, if the situation allows, before stepping up to physical force to gain compliance from suspects,” his supervising officer wrote in 2013. “Kevin could work just a little on his de-escalation techniques.”
In 2014, his supervisor’s comments were blunter: “Kevin had a number of use of force incidents this year, some of which upon review showed a propensity to act with force when other tactics appeared reasonable and available.”
In April 2017, two months after the incident with Zamora, according to police records, Hake got in an altercation at a Moses Lake bar. A woman at the bar alleged he made sexual comments and “touched her posterior.” She said she chose not to report the incident “because he was a police officer.”
A couple weeks later, Hake ran into the woman and her boyfriend at another bar. Hake appeared “highly intoxicated.” An altercation and scuffle ensued outside the bar, with police responding.
In May 2017, Hake “resigned in lieu of termination” from the Moses Lake Police Department and has not worked in law enforcement since.
He was charged with assault and disorderly conduct in the bar fight. The charges were dismissed two years later, after he completed drug and alcohol counseling and had no further infractions.
Hake declined to comment on the incident with Zamora and his departure from the department.
In May 2018, 14 months after he nearly died on Super Bowl Sunday, Zamora was charged with two counts of assaulting an officer.
Zamora’s trial began one year later. The judge gave each side one hour to “voir dire” potential jurors, to ask them questions to determine who would be suitable to sit on the jury.
Dano, the county’s elected prosecuting attorney at the time, handled the case himself.
He began by asking potential jurors what they thought of border security. One juror answered that she thought a border wall was ridiculous.
“Could you make room for the possibility that someone who — a loved one or family member of somebody who was either killed or had problems with somebody that’s been previously deported?” Dano responded.
Another juror said she didn’t believe in a border wall.
Dano responded saying “100,000 people come across illegally a month and of those we’ve got people from countries that — countries on our list that aren’t even allowed in the country are part of that group?”
“If you don’t believe a wall would help, do you lock your door?” he asked.
He asked about a drug bust on the border in Arizona.
Zamora, who was born in Pasco, is a U.S. citizen.
The next day, with the jury absent, the judge was concerned and asked Zamora’s lawyer why he hadn’t objected to the questions about border security and immigration.
Tyson Lang, Zamora’s public defender, said he didn’t object because he didn’t think the questions would benefit the prosecution.
At trial, a neighbor testified that he watched the struggle between Zamora and the police.
He said he saw officers kicking, punching and elbowing the man on the ground. He said he did not see the man on the ground fight back, but did see the officers tie him up with rope.
When prosecutors asked the neighbor, who is also Hispanic, why he didn’t go outside to help, he said “Oh, if it’s a cop, I don’t have nothing to do and nothing to say.”
The prosecution used that statement in its closing argument to discredit the neighbor’s testimony.
“This is a guy who doesn’t like the police,” Dano said. “When Officer Hake is out there struggling with the guy, he just stays inside, closes his door, doesn’t offer any help … he doesn’t like law enforcement.”
The jury deliberated for two days before finding Zamora guilty of two counts of assault. He was sentenced to just over three years in prison.
Zamora appealed his conviction, citing, among other things, Dano’s remarks during jury selection.
The Court of Appeals called Dano’s remarks “irrelevant and allegedly inflammatory” but found no legal problem.
The appeals court did, however, agree that Zamora should be resentenced, in light of the state Supreme Court’s 2021 Blake decision, which struck down Washington’s felony drug possession law, vacating tens of thousands of old drug convictions.
Zamora had a lengthy arrest record, both as an adult and as a juvenile. Charges, almost all of which were over a decade old, included eluding police, assault and possession of stolen property.
Zamora’s two past drug convictions were vacated by Blake, which meant his sentence should have been roughly 11 months, not the 38 months he was originally sentenced to, his lawyer said. Zamora was released from prison in June 2021 after serving 22 months.
He pressed his appeal to the state Supreme Court. Prosecutors continued their opposition, arguing for the court to deny the appeal.
But then something odd happened.
Two weeks after the state Supreme Court agreed to hear the case, Grant County prosecutors decided they weren’t interested any more.
In November 2021, Dano and McCrae asked the trial court judge (who had previously served in the prosecutor’s office) to dismiss the case. When she agreed, they asked the Supreme Court to drop it, too.
Dano and McCrae said they didn’t have enough attorneys to continue arguing the case.
“Given the current restrictions on the Grant County Prosecutor’s Office, other cases that present a much higher priority and the fact that Mr. Zamora has already served more than his sentence mean that it is no longer in the interests of justice for the State to pursue this case,” they wrote to the Supreme Court on Dec. 1, 2021.
They got Zamora’s trial lawyer, Lang, to sign the motion to dismiss the case. He later admitted he did so without talking to Zamora or to Zamora’s new lawyer.
Marie Trombley, Zamora’s appeals attorney, was flabbergasted. She had not been notified of the dismissal motion, she wrote, and Lang, who signed on, “is not the attorney of record.”
The trial court’s order to dismiss the case, Trombley wrote, was meaningless.
“It is patently unclear what the State asked the trial court to ‘dismiss,'” she wrote.
The convictions were still on the record and Zamora had already served his time.
The Supreme Court tossed aside the prosecutor’s request and continued with the appeal.
At oral arguments, in February 2022, McCrae argued Dano’s questions about illegal immigration were appropriate, because issues of law enforcement and border security are “related in people’s minds.”
“Do you think those issues would have been intertwined in people’s minds if it had been someone like me accused of the crime: an older, smaller white woman?” asked Justice Sheryl Gordon McCloud.
Her question foreshadowed the court’s ruling.
Last June the court ruled unanimously that Dano’s questions improperly appealed to racial bias, prejudice or stereotypes.
“This case was not remotely related to immigration — lawful or unlawful. This case had nothing to do with borders or border security. Any mention of border security, immigration, undocumented immigrants, and drug smuggling was wholly irrelevant,” Johnson wrote. “Courts must be vigilant of conduct that appears to appeal to racial or ethnic bias even when not expressly referencing race or ethnicity.”
The damage to Zamora’s defense, he wrote, was “incurable.”
The convictions were wiped from Zamora’s record, and while he couldn’t get back the time he spent in prison, legally it was as if the prosecution never happened. It was up to the county prosecutor to either drop the case or restart the prosecution from the beginning.
Shortly after the Supreme Court threw out Zamora’s convictions, McCrae had an apparent change of heart.
Previously he had argued that pursuing the case was “no longer in the interests of justice.” Now, apparently, he disagrees.
The order from the state Supreme Court was officially filed on July 22, 2022. A month later, McCrae began prosecuting Zamora all over again for the 2017 confrontation with police.
Zamora was appointed the same public defender, Lang, he previously had at trial — who didn’t object to Dano’s immigration questions and who later tried to have Zamora’s appeal dismissed without consulting Zamora.
Lang withdrew from the case a month later. He declined to comment for this story.
Dano resigned as Grant County prosecutor at the end of 2021, citing personal reasons.
After the Supreme Court’s order, he was reprimanded by the state Bar Association for a “discriminatory act” showing “prejudice or bias on the basis of race and national origin.” He was ordered to attend three hours of legal education classes and pay $750 in fees.
In a letter to the state Bar Association last year, Dano said he felt at the time his questions were appropriate but now realized they were wrong.
“It is not lost on me that my attempts to uncover jurors’ unconscious bias ironically revealed my own,” he wrote. “Comments I felt were made in good faith and in the legitimate exercise of my responsibilities as a prosecutor, can be reasonably viewed as ‘racist’ and repugnant to our system of justice.”
“I let my profession down, failed the citizens of Grant County, did harm to my reputation, and most critically, impacted Mr. Zamora’s fundamental right to a fair trial,” he wrote. “This mistake will live in me for the rest of my career and the rest of my life.”
But in a recent interview, Dano seemed to have had another change of heart.
“I just asked them general questions,” Dano said of the jury. Immigration issues were “all anybody was talking about, it was 24/7, should I build a border wall?”
“I totally disagree with what the Supreme Court ultimately did,” he said. “When you’re a trial lawyer and you’re only given 60 minutes to ask 60 people questions, which is ridiculous, you’ve got to find topics to get people talking.
“People who’ve never tried a case think they’re big experts,” he said. “Before you criticize someone, get in the arena and try some cases yourself.”
Zamora, who’s suffered from mental health problems, including anxiety and post-traumatic stress disorder since the beating, now awaits a competency hearing to determine if he’s fit to stand trial, again.
He is scarred by the experience, literally and figuratively. His neck bears the mark of the tracheotomy tube that kept him alive, that delivered oxygen to his brain while he was in a coma
His chest and stomach are stitched with scars from his gastric resection surgery.
He trips a lot. He has foot drop, which causes his toes to drag, because the muscles controlling the top of his foot atrophied while he was in the coma.
“I don’t fall every day,” he says. He points to a scab on his palm. “But I still fall. I fell the other day and got a pretty good gash on my hand.”
He has seizures, which he never used to have.
He wakes up in the middle of the night, sometimes screaming, sometimes gasping for air.
Marisa Martinez, Zamora’s girlfriend, has to physically shake him out of the nightmares.
“It’s painful to watch,” Martinez said. “But it also is just really heartbreaking, because you know that this wasn’t ever how he was before this incident happened.”
Previously he’d worked a string of construction, concrete and factory jobs. Now he can’t hold a job because of he’s not steady enough on his feet.
He gets food stamps and $400 a month cash assistance but doesn’t have a permanent place to live. He shuttles between a downtown shelter and the homes of friends and family.
“Life is a lot different when you’re not able to work,” he said.
Six years after the night he almost died, he’s still dealing with the aftermath — physically, mentally, legally. He’s served more than a full prison term, but the prosecution continues, without explanation.
“A nightmare,” he said. “Like I’m in a nightmare.”
His next court date is Sept. 11.