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News / Northwest

Prosecutors in Washington are recharging a man police nearly beat to death

By David Gutman, The Seattle Times
Published: June 5, 2023, 7:38am

Moses Lake police nearly beat Joseph Zamora to death. Then he was charged with and convicted of assaulting an officer. He served a full prison term. Then Grant County prosecutors asked for the case to be dismissed. Then the state Supreme Court threw out Zamora’s convictions, because the prosecutor used racial bias during the trial.

It’s been more than six years since the beating that left Zamora in a medically induced coma in the ICU for a month, but Grant County prosecutors are reprosecuting him for the same alleged crimes. Even though Zamora already served a full prison sentence. Even though the same prosecutors previously asked to have the case dismissed.

The lingering question: Why? Why recharge a man when even if he is convicted, he wouldn’t serve any more time? Why recharge a man when the prosecutor previously wrote, “it is no longer in the interests of justice for the State to pursue this case?”

Grant County Prosecutor Kevin McCrae has declined to say, citing rules that limit what he can say about an ongoing case.

But in documents McCrae wrote last fall, shortly after he decided to recharge Zamora, he explains his rationale for beginning the prosecution anew.

In the documents, newly obtained through public records requests, McCrae wrote he decided to recharge Zamora, in part, because Zamora had not taken responsibility for his actions.

After the Supreme Court vacated Zamora’s convictions, McCrae wrote, Zamora left him a voicemail “demanding” that he charge the officer who beat him up with attempted murder. Zamora, in court, also asked when he could file a tort claim, a prerequisite for filing a civil lawsuit, against the city and its Police Department, McCrae said.

Zamora, he wrote, had not learned his lesson.

“It is clear to me that Mr. Zamora had not accepted responsibility for his role in this incident,” McCrae wrote. “While there is no more jail time available in this case, any conviction would still count as criminal history on his offender score, would have an effect on the sentence for any future crimes Mr. Zamora may commit, and hopeful impress upon Mr. Zamora the improperness of his behavior.”

“Hopefully the individual involved learns something and is deterred from further similar actions in the future,” McCrae wrote.

McCrae’s reasoning came in a draft, sent to a deputy prosecutor in his office, in which he was responding to a complaint filed against him with the Washington State Bar Association over his handling of the case. The complaint was ultimately dismissed.

In the draft he also criticizes the state Supreme Court, saying it ignored facts and law in its opinion in the case, and said he was reprosecuting it, in part, to get a “full airing of the facts.”

Last week, he once again declined to comment on the case.

“That draft was an attorney client privileged document,” McCrae wrote last week in response to questions. “It was provided to you in error. The appropriate thing to do would be to destroy your copy. However, I observed your ethics and commitment to the truth in your previous article.”

Zamora’s next court appearance, in the case that’s run for more than half a decade, is in September. He has a new legal team.

Following a previous Seattle Times report on the case, Zamora’s public defender was replaced by five Seattle lawyers, working the case pro bono: Thomas Hillier II, a former federal public defender now with the firm Perkins Coie; David Perez, a partner with Perkins Coie; Cooper Offenbacher, a partner in the firm Allen, Hansen, Maybrown & Offenbacher; Robert Chang, a law professor and director of the Korematsu Center for Law and Equality at Seattle University, and Mark Middaugh, a criminal defense lawyer in private practice.

“After learning of the magnitude of this injustice and meeting with Joe, we realized that sitting on the sidelines of this case was simply not an option,” the legal team said in a statement. “We look forward to responding further in Court.”

“About as ugly as I would have expected”

Zamora’s confrontation with then-Moses Lake police Officer Kevin Hake happened in 2017. Hake stopped Zamora, who was walking to his niece’s home, after a neighbor called about a suspected car prowler. (It was later determined there was no car prowler.)

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He tried to walk away, but Hake blocked him. A struggle ensued. Hake pulled his gun and placed it against Zamora’s ear and temple, and in his mouth.

Six officers eventually responded. Zamora was pepper-sprayed, tased, kicked, beaten and hog-tied. He had no pulse and was not breathing when paramedics arrived. A blood test later found amphetamine, methamphetamine and marijuana in his system.

In 2019, he was convicted of two counts of assaulting an officer.

At trial, then-Grant County Prosecutor Garth Dano asked potential jurors their opinions on a border wall, on illegal border crossings and on crime committed by immigrants.

Zamora, a U.S. citizen, appealed his conviction, arguing Dano’s remarks were racially biased. While his appeal was being considered, he served a full sentence, nearly two years in prison.

After the Supreme Court agreed to hear Zamora’s case, McCrae asked to have it dismissed. He said he didn’t have enough lawyers to try the appeal and doing so “is no longer in the interests of justice.”

But the Supreme Court denied the request, heard the appeal, and ruled unanimously that Dano “committed race-based misconduct” at the trial. It threw out Zamora’s convictions.

“This was a prosecution where a citizen’s mistaken report of vehicle prowling led to a violent altercation with police officers that almost resulted in the death of the defendant who was guilty of nothing more than walking while high on drugs,” Justice Charles Johnson wrote for the unanimous court.

The day the Supreme Court decision came down, McCrae, who had clearly expected to lose the case, emailed the chief of the Moses Lake Police Department.

“We received Zamora back,” he wrote in a newly obtained email, referring to the decision. “It is about as ugly as I would have expected. I would like to take a few minutes and discuss whether we should retry it.”

McCrae decided to do so, starting the prosecution all over again last August.

“Very good at ignoring facts”

McCrae’s decision to reprosecute spurred Zamora’s appellate lawyer, Marie Trombley, to file a grievance with the Washington State Bar Association. She accused McCrae of prosecutorial misconduct, both for retrying the case and for previously trying to have Zamora’s appeal dismissed.

“The refiling of charges for prosecution has the familiar consequence of teaching citizens, who may be perceived as a minority, to not exercise their legal rights on appeal,” she wrote.

McCrae argued he’d done nothing wrong, that he was recharging Zamora because circumstances had changed and was acting within the powers granted to prosecutors to make charging decisions.

The Bar Association sided with him, dismissing the grievance.

In his draft response, McCrae wrote he was recharging Zamora because he’d been able to hire new attorneys in his office and because the state Supreme Court order dismissing the charges left the public with a distorted view of the case.

When he previously said he didn’t have enough lawyers to prosecute the case before the Supreme Court, 12 attorneys were working in his office at the time, with some considering leaving, he wrote. When he decided to recharge Zamora, he wrote, his office had 14.

He also took issue with the way Trombley, the state Supreme Court and the press characterized the case.

Trombley, he wrote, is “very good at ignoring facts and law that do not fit her narrative.

“Unfortunately the Supreme Court, especially the concurrence, also engaged in this practice,” McCrae wrote.

Trombley, last week, said “the Supreme Court reviewed the case very carefully and the decision they made was wise and has far-lasting impact.”

The Supreme Court was wrong, McCrae wrote, when it said the neighbor’s report of a car prowler was mistaken. The Supreme Court “ignores the fact” that Zamora had a knife in his pocket and refused to remove his hand from his pocket. And it “ignores the fact that Hake had the ability to shoot Mr. Zamora and did not.”

Dano’s statements about a border wall and immigration — which the Supreme Court said were racially biased — “were, at best, unwise,” McCrae wrote.

“However, the Supreme Court opinion goes much farther, undercutting faith in law enforcement and the legal system in general,” he wrote.

“Ms. Trombley and the Supreme Court have managed, based on a poor decision by the prosecutor, to turn the case into an indictment of law enforcement, when the purpose of a criminal case is to hold an offender accountable,” McCrae wrote.

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